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17-P-400                                              Appeals Court

               COMMONWEALTH    vs.   DMYTRO TARANOVSKY.


                             No. 17-P-400.

           Suffolk.      December 7, 2017. - June 18, 2018.

              Present:   Agnes, Blake, & McDonough, JJ.


Open and Gross Lewdness and Lascivious Behavior.      Practice,
     Criminal, Required finding.




     Complaint received and sworn to in the Charlestown Division
of the Boston Municipal Court Department on August 12, 2015.

     After transfer to the Central Division of the Boston
Municipal Court Department, the case was tried before Mark H.
Summerville, J.


     Christopher DeMayo for the defendant.
     Dara Z. Kesselheim, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.    As pertinent here, the statute punishing "open

and gross lewdness and lascivious behavior," G. L. c. 272, § 16,

has remained unchanged for more than 230 years.      See
                                                                     2


Commonwealth v. Quinn, 439 Mass. 492, 495 & n.7 (2003), citing

St. 1784, c. 40, § 3.    However, during that time, the definition

of the crime has "evolved through our decisional law."

Commonwealth v. Maguire, 476 Mass. 156, 158 (2017).    The Maguire

decision represents the most recent "judicial construction" of

the statute.    Id. at 161, quoting from Commonwealth v. Ora, 451

Mass. 125, 128 (2008).    In Maguire, the court announced that one

of the five elements of the offense (element four) requires the

Commonwealth to prove an "objective component," namely, that the

defendant's conduct not only caused one or more persons to be

shocked or alarmed, but in addition, "that 'shock' or 'alarm'

was an objectively reasonable reaction in the circumstances of

the conduct."   Maguire, supra at 161.1   This requirement does not


     1 As relevant here, the current jury instruction, which was
modified after the court's decision in Maguire, sets forth the
five elements of the crime of open and gross lewdness that the
Commonwealth must prove beyond a reasonable doubt, as follows:

     "[1]: That the defendant exposed his . . . buttocks to one
     or more persons; [2]: That the defendant did so
     intentionally; [3]: That the defendant did so 'openly,'
     that is, either he . . . intended public exposure, or he
     . . . recklessly disregarded a substantial risk of public
     exposure, to others who might be offended by such conduct;
     [4]: That the defendant's act was done in such a way as
     would alarm or shock a reasonable person; and [5]: That a
     least one person was alarmed or shocked."

Instruction 7.400 of the Model Jury Instructions for Use in the
District Court (May, 2017). See Maguire, 476 Mass. at 161.
Prior to Maguire and in September, 2016, at the time of the
trial in this case, the fourth element was defined as follows:
"That the defendant's act was done in such a way as to produce
                                                                    3


appear in any previously reported Massachusetts appellate

decision.   Not surprisingly, the jury in this case were not

instructed in accordance with Maguire, which was decided

approximately three months after the conclusion of the

defendant's trial.    We conclude that the absence of such an

instruction created a substantial risk of a miscarriage of

justice, and accordingly reverse the defendant's conviction of

open and gross lewdness.

    Background.      Taking the evidence in the light most

favorable to the Commonwealth, Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979), the jury could have found the

following facts.

    On August 9, 2015, a twenty-seven year old female witness,

N.M., was out for a boat ride on the Charles River with her

father and some friends.    The boat was tied up in front of the

Hatch Shell on the Esplanade, which is owned by the Department

of Conservation and Recreation, patrolled by the State police,

and open to the public.    N.M. noticed two children, between the

ages of five and seven, who were riding scooters.    They stopped

suddenly and turned their heads toward something.    When she

followed their gaze to see what had caught their attention, she




alarm or shock." Commonwealth v. Kessler, 442 Mass. 770, 773
n.4 (2004). See note 5, infra.
                                                                         4


saw an individual, later identified as the defendant, walking in

a "casual strut" down the walkway on the Esplanade.       He walked

the way models walk down the runway, to "let everybody see the

outfit."    The defendant was wearing a black sock-like object

over his genitals, held in place by three strings in the shape

of a "T."   N.M. described it as a "banana hammock."       The

defendant's buttocks were exposed and he was otherwise

completely naked.

    When N.M. saw the defendant, she felt "shocked" and "just a

little disgusted."        She explained that she "wouldn't expose that

to anybody," and further described what she had seen as "just a

little unnerving."        She testified that her reaction was based,

in part, on the fact that there were children in the area who

also saw the defendant.       She took a photograph of the defendant,

which was admitted into evidence.       N.M. then decided to flag

down a State police trooper passing by to report what she had

seen.   As the trooper, David Twomey, approached the defendant,

he quickly turned away and put on his pants.        The defendant

appeared nervous, as "his eyebrows were twitching and he was

stuttering."   He told Twomey that he was sunbathing.       Twomey

subsequently placed the defendant under arrest.

    Discussion.      1.    Sufficiency of the evidence.   The

defendant argues on appeal that the Commonwealth's evidence was

not sufficient to prove that his behavior was objectively and
                                                                  5


subjectively shocking or alarming as required by Maguire.2

     Initially, we must determine whether the interpretation of

the open and gross lewdness statute announced in Maguire is

applicable to the case before us.   "Where a decision does not

announce new common-law rules or rights but rather construes a

statute, no analysis of retroactive or prospective effect is

required because at issue is the meaning of the statute since

its enactment."   McIntire, petitioner, 458 Mass. 257, 261

(2010).   See id. at 262 n.7.   Maguire is applicable in the

instant case because the court, through the process of judicial

construction, explained that the open and gross lewdness statute

contains an objective component.

     The question for us thus becomes "whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt" (emphasis omitted).




     2 The defendant also argues that the judge erred in not
instructing the jury that the crime of open and gross lewdness
requires proof of a specific intent. In fact, in trying to
explain the relationship between the fourth and fifth elements
of the crime, the judge described the crime as a specific intent
crime. This was error, though not prejudicial to the defendant
because it added to the Commonwealth's burden of proof. Cf.
Commonwealth v. Cummings, 273 Mass. 229 (1930) (rejecting
defendant's argument that Commonwealth was required to prove
that his conduct in a public restroom was intentionally open and
public). The defendant does not challenge the sufficiency of
the evidence as to the first three elements of the crime.
                                                                     6


Latimore, 378 Mass. at 677.    "The inferences drawn from [the]

evidence need only be reasonable and possible, not necessary or

inescapable."   Commonwealth v. Morgan, 449 Mass. 343, 349 (2007)

(quotation omitted).    See Commonwealth v. Bush, 427 Mass. 26, 30

(1998).

     a.   Objective component of "shock" or "alarm."    The fourth

element of the crime of open and gross lewdness, as defined anew

in Maguire, requires the Commonwealth to "demonstrate that

'shock' or 'alarm' was an objectively reasonable reaction in the

circumstances of the conduct."    Maguire, 476 Mass. at 161.

Whether a person's reaction is reasonable based on the

circumstances is typically a question to be determined by the

fact finder.    See ibid.   See also Trenz v. Norwell, 68 Mass.

App. Ct. 271, 275 (2007) ("Reasonableness is a question of fact

for the [fact finder] whose decision is based on consideration

of all the relevant circumstances" [quotation omitted]).

     Although we regard this as a close question, reasonable

minds could differ as to whether N.M.'s reaction to the

defendant's deliberate exposure of his buttocks in a public area

was objectively reasonable.3    Thus, the Commonwealth should have


     3 What makes this case close is that unlike in Quinn, supra,
where the Supreme Judicial Court held, for the first time, that
"exposure of genitalia is not an essential element of the
crime," 439 Mass. at 495, the examples given by the court in
Quinn of facts that could satisfy the "shock or alarm"
components of the offense involve acts where the victims are
                                                                    7


the opportunity to present its case to a properly instructed

jury, at a new trial.

    b.   Subjective component of "shock" or "alarm."   The fifth

element of proof requires the Commonwealth to demonstrate that

at least one person was in fact shocked or alarmed by the

defendant's exposure.   See Quinn, 439 Mass. at 501; Commonwealth

v. Botev, 79 Mass. App. Ct. 281, 287-288 (2011).   "Where an

'observer suffered significant negative emotions as a result of

the exposure,' the observer's reaction 'could justifiably be

deemed alarm or shock,' . . . [sufficient] to convict a

defendant of open and gross lewdness."   Commonwealth v. Pereira,

82 Mass. App. Ct. 344, 347 (2012), quoting from Commonwealth v.

Kessler, 442 Mass. 770, 775 (2004).   "[T]he fact finder may

consider not only the words used by the witness, but also other

indicia of the witness's emotional state" in determining whether

the observer suffered significant negative emotions as a result

of the defendant's actions.   Pereira, supra.   One such indicium




children who are in close proximity to the defendant. "The
sudden exposure of buttocks by dropping one's pants in front of
children in an area (school) where such conduct would be wholly
unexpected may alarm or shock, as surely as revealing one's
penis. . . . A woman approaching a group of school children
suddenly opening her blouse to expose her breasts may alarm or
shock just as a man masturbating in a passing automobile might."
Id. at 497-498. Whether the offense of open and gross lewdness
should be limited to the type of conduct described in Quinn is
for the Supreme Judicial Court to decide.
                                                                        8


is "whether the witness immediately reported the incident."

Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334 (2006).

    Here, N.M. testified that she was "shocked" and "just a

little disgusted" by the defendant's exposure.     She found it

"[a] little nerve racking" both because she had never seen

anything similar before and because there were children around.

Indeed, she took a photograph of what she had seen and flagged

down Twomey.   While N.M. testified that her reaction was based

in part on her concern over the impact of the defendant's

behavior on the children who were on the Esplanade, she also

testified that she experienced "a little shock[]" herself.        For

this reason, there was sufficient evidence to permit the jury to

find that the Commonwealth had proved the fifth element of the

offense.

    2.     Testimony and closing argument.    The defendant contends

that it was error to allow N.M. to testify as to her

observations of the children on the Esplanade.     Because the

defendant did not object to this testimony, we review to

determine if there was error, and if so, whether it created a

substantial risk of a miscarriage of justice.     See Commonwealth

v. Renderos, 440 Mass. 422, 425 (2003).      Although "[v]icarious

concern for other people," without more, is not sufficient to

demonstrate an individual's shock or alarm, see Maguire, 476

Mass. at 160, the Commonwealth had the right to present N.M.'s
                                                                    9


account of the circumstances in which she made her observations.

"[T]he prosecution with its burden of persuasion needs

evidentiary depth to tell a continuous story."     Old Chief v.

United States, 519 U.S. 172, 190 (1997).     See Commonwealth v.

Whitehead, 379 Mass. 640, 657 (1980).     There was no error, let

alone a substantial risk of a miscarriage of justice.4

     3.    Jury instructions.   The defendant maintains that the

judge omitted an instruction on an essential element of the

crime, namely the "objective component" of open and gross

lewdness, described for the first time in Maguire, supra, as

"the focus of the fourth element."    476 Mass. at 159.

     In this case, the judge instructed the jury that the crime

of open and gross lewdness consisted of five elements, as

follows:

     "First, that the defendant exposed his genitals or buttocks
     to one or more persons; that the defendant did so
     intentionally; that -- third, that the defendant did so
     openly, that is, either he intended public exposure or he

     4 As the evidence was properly admitted, the defendant's
contention that it was error for the prosecutor to reference the
children in his opening statement and closing argument must also
fail. The defendant offers conclusory statements on these
issues, which do not rise to the level of appellate argument.
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any
event, there was no error. The opening statement was based on
what the prosecutor intended to prove by the evidence. See
Morgan, 449 Mass. at 360. And in the closing argument, the
prosecutor was "entitled to argue forcefully for the defendant's
conviction" and use "the facts in evidence and the reasonable
inferences that may be drawn therefrom." Commonwealth v. Diaz,
478 Mass. 481, 487 (2017) (quotation omitted).
                                                                      10


     recklessly disregarded a substantial risk of public
     exposure to others who might be offended by such conduct;
     fourth, that the defendant's act was done in such a way as
     to produce alarm or shock and, fifth that one or more
     persons were -- were, in fact, alarmed or shocked."5

Following the decision in Maguire, the District Court model jury

instruction was revised.      Element four of the five-element

instruction now reads as follows:     "Fourth:   That the

defendant's act was done in such a way as would alarm or shock a

reasonable person."6

     Due to the defendant's failure to object to the jury

instructions given at trial, our review is limited to

determining whether any error in the instructions gave rise to a

substantial risk of a miscarriage of justice.      See Commonwealth

v. Azar, 435 Mass. 675, 685 (2002).      See also Commonwealth v.

Johnston, 467 Mass. 674, 704 (2014) (applying substantial

likelihood of miscarriage of justice standard where, although

defendant failed to object to jury instructions, he was entitled

to "benefit of changes in decisional law . . . announced after

trial and pending his direct review").      In applying the

substantial risk of a miscarriage of justice standard, "[w]e


     5 This instruction is consistent with Instruction 7.400 of
the Model Jury Instructions for Use in the District Court
(2009), which renumbered the fourth and fifth element, but did
not change the text of Instruction 5.42 of the Model Jury
Instructions for Use in the District Court (1988). See Kessler,
442 Mass. at 773 n.4.

     6   See note 1, supra.
                                                                   11


consider the strength of the Commonwealth's case, the nature of

the error, the significance of the error in the context of the

trial, and the possibility that the absence of an objection was

the result of a reasonable tactical decision."    Azar, supra at

687.

       An initial question, therefore, is whether the pre-Maguire

model instruction effectively communicated to the jury that in

order to find the defendant guilty, it was not sufficient for

the Commonwealth to prove that his conduct produced shock or

alarm in the mind of N.M., but that, as the post-Maguire model

instruction states, the Commonwealth also must prove that "the

defendant's act was done in such a way as would alarm or shock a

reasonable person."    Instruction 7.400 of the Model Jury

Instructions for Use in the District Court (May, 2017), fourth

element.   Nowhere in the judge's instructions is there any

reference to the distinction between the subjective and the

objective components of the crime.   The jury were not informed

that although the victim's experience of shock or alarm may

satisfy the fifth element of the offense, the fourth element

requires the jury to answer the independent question whether the

victim's reaction was objectively reasonable.    Finally, it

should be noted that after the jury began their deliberations,

they asked the court for "a copy of the statute in question

including the five conditions to be met."   After consulting with
                                                                  12


counsel, the judge reinstructed the jury using the pre-Maguire

model instruction followed by an explanation of the intent

element and a reference to the fourth and fifth elements that

did not convey the distinction between the subjective and the

objective components.   For these reasons, we conclude that the

instructions in this case were deficient for failing to

communicate to the jury that in order to convict the defendant

of open and gross lewdness they must find that the defendant's

conduct produced shock or alarm in two independent respects,

namely that N.M. experienced that reaction and that a reasonable

person in her position also would have experienced shock or

alarm.

    Furthermore, the Commonwealth's case was arguably weak as

it related to the reasonableness of the victim's shock or alarm.

The evidence indicates that N.M., from her vantage point near a

boat on a dock on the Charles River located near the Hatch

Shell, observed the defendant, from the side, as he walked along

the Esplanade wearing only a banana thong.   Because his genitals

were covered, the judge correctly instructed the jury that the

only basis for finding that N.M. suffered shock or alarm at the

appearance of the defendant, from the side, was the exposure of

his buttocks.   Even granting that N.M. was shocked or alarmed as

a result of this experience, the jury were not asked and thus

did not determine whether a reasonable person in N.M.'s position
                                                                  13


would have experienced shock or alarm based on the observation

of the defendant's buttocks from N.M.'s distant vantage point.

     The defendant's failure to object to the jury instruction

also cannot be characterized as a reasonable tactical decision.

The judge recited the District Court model jury instruction to

the jury, and no reported appellate decision prior to Maguire

put the defendant on notice that proof that some particular

person experienced shock or alarm as a result of witnessing the

defendant's intentional act of exposing his buttocks in public

is a fact separate and independent from whether a reasonable

person in the victim's position would experience shock or alarm.

See, e.g., Commonwealth v. Fitta, 391 Mass. 394, 396 (1984)

(conviction for open and gross lewdness and lascivious behavior

requires that "defendant's act [is] committed in such a way as

to produce alarm or shock" [quotation omitted]).7   This, coupled


     7 Most of the reported decisions prior to Maguire dealing
with the offense of open and gross lewdness address the
relationship between this offense and the offense of indecent
exposure, whether the defendant's conduct constituted exposure,
whether that exposure was intentional or done with reckless
disregard, whether the defendant's conduct was done openly,
whether the observer's reaction was sufficient to meet the
requirement of shock or alarm, whether the victim had to be an
unsuspecting or unwilling person, and whether a prosecution
based on exposure to a single victim was sufficient. See, e.g.,
Commonwealth v. Cummings, 273 Mass. 229 (1930) (conduct between
two men in public toilet qualified as "open"); Revere v.
Aucella, 369 Mass. 138, 147 (1975) (statute as applied to
consenting adults is unconstitutional); Commonwealth v. Adams,
389 Mass. 265, 271 (1983) ("Here the defendant was arrested
after a private citizen complained that he saw the defendant
                                                                   14


with the Commonwealth's arguably weak case as to the objective

component of the open and gross lewdness statute, leads us to

conclude that the defendant's failure to object to the jury

instructions cannot be considered a reasonable tactical

decision.

    Under these circumstances, we conclude that there was a

substantial risk of a miscarriage of justice.   See Commonwealth

v. Stoltz, 73 Mass. App. Ct. 642, 644 (2009), quoting from



drive by slowly in his automobile on a public way with his penis
exposed and masturbating. We believe that this conduct, if
proved, would be included under the commonly understood meaning
of 'open and gross lewdness and lascivious behavior' so as to
give the defendant fair warning that his conduct is
proscribed"); Quinn, 439 Mass. at 498 ("A woman approaching a
group of school children suddenly opening her blouse to expose
her breasts may alarm or shock just as a man masturbating in a
passing automobile might"); Kessler, 442 Mass. at 774 ("Being
'excited' or 'nervous' may sometimes be unpleasant, but it does
not connote the serious negative emotional experience required
by the statute"; "[m]ere nervousness and offense has never been
held sufficient to warrant a finding that the viewer was 'in
fact alarmed or shocked'"); Ora, 451 Mass. at 127-128
(explaining relationship between open and gross lewdness and
indecent exposure; noting that "the central purpose of G. L.
c. 272, § 16, [is] . . . preventing fright and intimidation,
particularly regarding children"); Commonwealth v. Gray, 40
Mass. App. Ct. 901, 901 (1996) (janitor's "disgust" upon seeing
two men engaging in oral sex in public toilet was sufficient to
satisfy "alarm or shock" requirement); Commonwealth v.
Poillucci, 46 Mass. App. Ct. 300, 302-303 (1999) (witnesses'
failure to identify object defendant was pulling up and down did
not render unreasonable an inference that he had exposed his
genitalia); Commonwealth v. Blackmer, 77 Mass. App. Ct. 474,
479-480 (2010) (conviction of open and gross lewdness requires
proof that defendant openly exposed "some body part," and thus
observation of act of unexposed masturbation in public place is
not sufficient).
                                                                15


Commonwealth v. Hall, 48 Mass. App. Ct. 727, 730 (2000)

("[W]here 'error pertains to the definition given to the jury of

the crime charged, the possibility of a substantial risk of a

miscarriage of justice is inherent'").   For this reason, the

defendant is entitled to a new trial.8

                                   Judgment reversed.

                                   Verdict set aside.




     8 Because of the result we reach, we need not decide whether
the judge's failure to instruct in accordance with Maguire was a
constitutional error that should be reviewed under the
prejudicial error standard on the ground that it was not an
issue that the defendant should be expected to have raised at
trial. See Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 16-17
(1986) (discussing "clairvoyance" exception).
