Lead Opinion
Following a jury trial in the Boston Municipal Court, the defendant, Lawrence F. Maguire, was convicted of open and gross lewdness and lascivious behavior in violation of G. L. c. 272, § 16, and resisting arrest in violation of G. L. c. 268, § 32B.
On the afternoon of October 14, 2010, Detective Sean Conway of the Massachusetts Bay Transportation Authority (MBTA) and the defendant were on a train headed for the Park Street station. Once the train arrived at the station, the defendant transferred to another train and sat down across from a college-aged woman. Unbeknownst to the defendant, Detective Conway had followed him and was standing about eight to ten feet away when he saw the defendant rub his penis with his hand over his pants for thirty seconds to a minute.
Upon arriving on the station platform, Detective Conway saw the defendant lean against a pillar with his hands in front of him. There were about twenty to twenty-five people on the platform and two or three women sitting on a bench five to six feet away from the defendant. The defendant faced the women and jerked his head up and down as if he was seeking their attention, and then he began to move his hands as if he was preparing to urinate. Detective Conway was approximately thirty feet behind the defendant when he observed this behavior, which he demonstrated to the jury.
In order to better see what the defendant was doing, Detective Conway crossed over the platform to the other side of the tracks. As he was coming down the stairs, he had a clear view of the defendant, who, while still facing the women sitting on the bench, had exposed his penis. Detective Conway testified that he saw the defendant’s penis for one or two seconds and was “disgusted”
Almost simultaneously with seeing the defendant expose his penis, Detective Conway made eye contact with the defendant, who immediately tried to zip up his pants and ran away. Detective Conway returned to the other side of the platform and attempted to speak with the women for whom he was concerned. However, for reasons which are not clear from the record, he was not able to communicate with them. Meanwhile, the defendant was running away; thus, Detective Conway cut short his inquiry and chased after the defendant. During the ensuing pursuit, Detective Conway said, “[S]top, police,” to no avail. Eventually, Detective Conway caught up with the defendant, and once again commanded the defendant to stop by repeating, “[S]top, police.” At this point, the defendant stopped, turned toward Detective Conway, and put up his fists in a fighting stance. He then punched Detective Conway in the “chest and arm area.” Detective Conway struggled with the defendant for two to three minutes before he was able to subdue him and place him in handcuffs.
Discussion. 1. Open and gross lewdness. While the statute, G. L. c. 272, § 16, does not define “open and gross lewdness and lascivious behavior,” our decisional law requires proof of five elements to support a conviction: “that the defendant (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so ‘as to produce alarm or shock’; (5) thereby actually shocking or alarming one or more persons.” Commonwealth v. Swan,
Our review of the evidence leaves us with no question as to the sufficiency of the evidence with regard to the first four elements. Detective Conway’s testimony of his observations permitted a rational jury to find beyond a reasonable doubt that the defendant “exposed” his penis and that he did so “intentionally” and “openly.” Furthermore, because the defendant exposed himself while facing the women sitting on a bench, and in a public place, the jury also could infer that this action was done in such a way so as to cause alarm or shock. See Swan, supra at 261 (defendant’s positioning himself in close proximity to victim considered
Our decision in Pereira, contrary to the conclusion reached by the dissent, controls the outcome here. In that case, we concluded that a rational jury could have found beyond a reasonable doubt that the defendant’s actions — masturbating while sitting in his vehicle, which was parked near the Sullivan Square MBTA station — produced the requisite shock and alarm in a police officer who observed the defendant. The officer’s attention was drawn to the defendant because “he had his head down” and “his right shoulder was hunching up and down.” Id. at 345. The officer approached the defendant’s vehicle and upon looking in the window observed the defendant with his pants down, masturbating. Ibid. The officer described his reaction to the defendant as feeling “personally, angry, a little bit disgusted.” Ibid. The officer also noted that it was “a busy area, a lot of women around there, kids, everything so I wasn’t happy about it.” Ibid.
Here, Detective Conway stated that the defendant’s exposure caused him to feel “disgusted” and “concerned that the females that were sitting on the bench were being victimized by his behavior.” The defendant argues that “disgust” and “concern,” absent other evidence, are too equivocal to convey a significant negative emotion. We note no significant distinction between the “little bit disgusted” and “angry” described by the police officer in Pereira and the “disgust” and “concern[ ]” described by
Further, contrary to the defendant’s assertion, Detective Conway’s expressed concern for the public is relevant in that it illuminates “how the circumstances surrounding the incident influenced [Detective Conway’s] reaction to it,” Pereira,
2. Resisting arrest. A defendant resists arrest if “he [or she] knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” G. L. c. 268, § 32B(a), inserted by St. 1995, c. 276. The crime occurs at the time an officer is “effecting” an arrest, which is when “there is (1) an actual or constructive seizure or detention of the person, [(2)] performed with the intention to effect an arrest and [(3)] so understood by the person detained.” Commonwealth v. Grandison,
Viewed in the light most favorable to the Commonwealth, the evidence established that in response to Detective Conway’s repeated commands of “[S]top, police,” the defendant continued to run, and when the detective caught up with the defendant, the defendant assumed a fighting stance and threw a punch at the detective. Afterward, the defendant struggled with Detective Conway, even though the detective repeatedly ordered him to place his hands behind his back. Even if we were to assume, as the defendant claims, that he did not initially recognize Detective Conway as a police officer (Detective Conway was not in uniform, but he wore a badge and his firearm was visible), the evidence was sufficient to support the finding that the defendant understood that Detective Conway was a police officer when he said, “[S]top, police.” Moreover, given the protracted struggle to place him in handcuffs and the shouts to comply, a reasonable person would have understood that he or she was subject to arrest. See Commonwealth v. Quintos Q.,
Judgments affirmed.
Notes
The jury acquitted the defendant of assault and battery on a public employee, G. L. c. 265, § 13D, and the lesser included offense of assault and battery.
The defendant moved for a required finding of not guilty at the close of the Commonwealth’s case and renewed his motion at the close of all the evidence. The defendant testified on his own behalf and denied engaging in any inappro
The record does not disclose the reasons for which Detective Conway initially followed the defendant.
We respectfully disagree with the conclusion reached by our dissenting colleague that Detective Conway’s feeling of “disgust” was of a “vicarious sort” more akin to being offended than shocked or alarmed and, therefore, insufficient to satisfy the fifth element of the offense charged. That a rational jury could reasonably so conclude is inconsequential. The question so often repeated in our cases is whether any rational trier of fact could conclude, beyond a reasonable doubt, that the defendant’s actions produced shock or alarm in Detective Conway. Moreover, that the detective, according to the dissent, should not have been surprised by the defendant’s conduct does not preclude a finding that he was, in fact, shocked or alarmed.
Concurrence Opinion
(concurring in part and dissenting in part). There plainly was sufficient proof that the defendant committed an indecent exposure under G. L. c. 272, § 53. That statute requires only an “intentional act of lewd exposure, offensive to one or more persons.” Commonwealth v. Swan,
As the Supreme Judicial Court has made clear, “the central purpose of G. L. c. 272, § 16, [i]s one of preventing fright and intimidation, particularly regarding children.” Commonwealth v. Ora,
As we recently held, the Commonwealth may put forward a police officer as the victim of an open and gross lewdness charge, and this does not raise the Commonwealth’s burden of proof. Commonwealth v. Pereira,
Here, the detective himself went on to explain in detail the nature of his reaction. Immediately after noting that he “was disgusted,” he elaborated that he “was concerned that the females that were sitting on the bench were being victimized by [the defendant’s] behavior.” Thus, his “disgust” was of a vicarious sort, bom of his “concern” that others might be affected by the defendant’s behavior. In this sense, Detective Conway used the term “disgusted” to mean something analogous to “offensive” under the indecent exposure statute. See Commonwealth v. Cahill,
The rest of the detective’s testimony reinforces that he personally was not “shocked” or “alarmed.” He acknowledged that it was “common” for him to see exposed penises in such settings as public restrooms and locker rooms, and that he personally was not disgusted by seeing them. In addition, he hardly can claim surprise by the sight of the defendant’s penis after the great lengths he went to in order to put himself in a position to see it.
Nothing in Pereira dictates an affirmance here. That case involved a public sex act (masturbation) rather than mere exposure, and the officer there testified that he was “angry” in addition to being somewhat “disgusted.” Pereira,
In sum, I believe there was insufficient evidence that the defendant’s conduct here caused a “substantially more serious and negative impact” on the detective than that required to make out a case of indecent exposure. Ora, 451 Mass, at 127. I therefore would reverse the defendant’s conviction of open and gross lewdness and remand for entry of a conviction on the lesser included crime of indecent exposure.
Open and gross lewdness is a felony punishable by up to three years in State prison. G. L. c. 272, § 16. Indecent exposure is a misdemeanor punishable by up to six months in a jail or house of correction. G. L. c. 272, § 53.
I agree with the majority that there was sufficient evidence to support the defendant’s conviction of resisting arrest.
The Commonwealth presented no evidence that the women on the bench or any person other than Detective Conway in fact observed the defendant’s exposure. Detective Conway himself was able to view the defendant’s exposed penis only by running up the stairs to get to the opposite subway platform.
The fact that Detective Conway voluntarily placed himself in a position to observe the defendant’s penis itself raises some doubt as to the validity of this prosecution. The Supreme Judicial Court has made clear that the open and gross lewdness “statute cannot be constitutionally applied to public displays of lewdness and nudity unless they are imposed upon an unsuspecting or unwilling audience.” Ora, 451 Mass, at 126, citing Revere v. Aucella,