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14-P-752                                              Appeals Court

            COMMONWEALTH      vs.   LAWRENCE F. MAGUIRE.


                             No. 14-P-752.

       Suffolk.       February 27, 2015. - August 11, 2015.

                Present:   Vuono, Milkey, & Blake, JJ.


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


     Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on October 15, 2010.

    The case was tried before David B. Poole, J.


     Bradford R. Stanton for the defendant.
     Anthony Riley (Matthew T. Sears, Assistant District
Attorney, with him) for the Commonwealth.


    VUONO, J.     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,
                                                                   2


§ 32B.1   On appeal, the defendant claims that the evidence was

insufficient to support the convictions.2   We affirm.

     Background.   As is required in considering a question of

the sufficiency of the evidence, "we must look at the evidence

in the light most favorable to the Commonwealth to determine

whether any rational jury could have found the essential

elements of the crime beyond a reasonable doubt."   Commonwealth

v. Ruci, 409 Mass. 94, 96 (1991), citing Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979).   A reasonable jury could

have found the following facts.

     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


     1
       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.
     2
       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 inappropriate or
criminal behavior. As the jury was entitled to reject the
defendant's testimony in its entirety, the Commonwealth's case
did not deteriorate with the presentation of the defendant's
case. See Commonwealth v. Berry, 68 Mass. App. Ct. 78, 81
(2007). Therefore, we limit our discussion of the evidence to
that presented by the Commonwealth in its case-in-chief.
                                                                        3


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.3      The defendant alighted from the train at

the Hynes Convention Center station, and Detective Conway

continued to follow him.

       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




       3
       The record does not disclose the reasons for which
Detective Conway initially followed the defendant.
                                                                     4


"disgusted" and "concerned" that the women sitting on the bench

were being "victimized" by the defendant's behavior.

    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)
                                                                    5


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, 73 Mass. App. Ct. 258, 260-261 (2008)

(Swan), quoting from Commonwealth v. Kessler, 442 Mass. 770, 773

& n.4 (2004).    See Instruction 7.400 of the Criminal Model Jury

Instructions for Use in the District Court (2009).     The

defendant contends there was insufficient evidence as to all

five elements.

    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 as evidence that

defendant exposed himself in a manner so as to produce shock or

alarm).   However, the sufficiency of the evidence as to the

fifth element of the offense, which requires the Commonwealth to

prove that the defendant actually caused one or more persons to
                                                                     6


experience shock or alarm, is a closer question.     We recently

addressed the quantum of evidence required to prove this element

beyond a reasonable doubt in Commonwealth v. Pereira, 82 Mass.

App. Ct. 344, 346-348 (2012) (Pereira).   In that case, we said

that "[w]here 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."     Id. at 347,

quoting from Commonwealth v. Kessler, supra at 775.     We further

noted that "[w]itnesses are not required to use any special

words to express that they experienced a significant negative

emotion" and "[c]ourts have found a variety of formulations of

negative emotions to satisfy the element of causing actual shock

or alarm, so long as the emotions were of a significant

character."   Pereira, supra at 347.

    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
                                                                        7


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 Detective Conway.4        See Commonwealth v. Gray, 40 Mass. App.

Ct. 901, 901 (1996) (evidence sufficient where victim, a member


       4
       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.
                                                                    8


of the maintenance staff at a shopping mall, was "disgusted" by

sight of two men engaged in act of fellatio in public bathroom);

Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 303-304 (1999)

(even though witness "did not express herself hysterically," a

rational fact finder could conclude that she had been "shocked

or alarmed" based on her description of what she saw and that

she felt "very uncomfortable and nervous"); Swan, 73 Mass. App.

Ct. at 261 (witness's testimony that he was "grossed out" and

"nervous" sufficient for finding that he was "alarmed").

    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, 82

Mass. App. Ct. at 348, and, ultimately, supports the conclusion

that the defendant's conduct caused him to be shocked or

alarmed.   Accordingly, we conclude that the judge did not err in

denying the defendant's motion for a required finding of not

guilty.

    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
                                                                     9


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, 433 Mass. 135, 145

(2001) (quotation omitted).     The relevant inquiry is an

objective one:     i.e., whether, under the circumstances, a

reasonable person would have understood that he was being

arrested.    Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208

(2008).

    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
                                                                     10


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., 457 Mass.

107, 111 (2010).     Accordingly, we reject the defendant's

challenge to his conviction of resisting arrest.

                                      Judgments affirmed.
     MILKEY, J. (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, 73 Mass. App. Ct.

258, 261 (2008) (quotation omitted).    However, as the Supreme

Judicial Court has repeatedly emphasized, significant additional

proof is required for the far more serious charge of open and

gross lewdness under G. L. c. 272, § 16.1   See Commonwealth v.

Kessler, 442 Mass. 770, 774 (2004) (Kessler) (insufficient proof

that defendant's masturbating in front of window constituted

open and gross lewdness).   Because I believe the necessary

additional proof is absent here, I respectfully dissent.2

     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, 451 Mass. 125, 128 (2008) (Ora).    A conviction under that

statute requires, inter alia, proof beyond a reasonable doubt

that at least one person was in fact "alarmed" or "shocked" by a


     1
       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.
     2
       I agree with the majority that there was sufficient
evidence to support the defendant's conviction of resisting
arrest.
                                                                          2


defendant's conduct.      See Kessler, supra at 772-773 & n.4.     Open

and gross lewdness is a "much more serious offense than . . .

indecent exposure and consequently requires a substantially more

serious and negative impact as a result of the behavior."          Ora,

supra at 127 (citation omitted), citing Kessler, supra at 774-

775.       Detective Conway was the only known eyewitness to the

defendant's exposing himself,3 and consequently, the

Commonwealth's case depended on proof that the exposure caused

the detective to experience a "serious negative emotional

experience" above and beyond "mere nervousness [or] offense."

Kessler, supra at 774.      In my view, the Commonwealth did not

come close to meeting its burden here.

       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, 82 Mass. App. Ct. 344, 348

(2012) (Pereira).       However, relying on a police officer as the

victim obviously also cannot lower the Commonwealth's burden; it

still must prove that the officer personally was "alarmed" or

"shocked" by a defendant's conduct.      To be sure, Detective

Conway stated that he "was disgusted" upon seeing the

       3
       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.
                                                                      3


defendant's exposed penis, and the majority accurately points

out that such language is similar to that used by witnesses in

cases in which convictions for open and gross lewdness have been

affirmed.   See, e.g., Commonwealth v. Gray, 40 Mass. App. Ct.

901, 901 (1996) (victim "disgusted" by sight of oral sex act in

public bathroom).   But, as the cases make clear, the specific

language used by an eyewitness to alleged open and gross

lewdness is not dispositive.    See Pereira, supra at 347

("Witnesses are not required to use any special words to express

that they experienced a significant negative emotion").     Just as

the absence of any particular language in a witness's

description of his reaction is not necessarily fatal to the

Commonwealth's case, so too the presence of any particular

language is not necessarily sufficient.

    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, born 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, 446 Mass. 778, 781 (2006) ("Offensive
                                                                     4


acts are those that [are] . . . repugnant to the prevailing

sense of what is decent or moral") (quotation omitted).

       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.4   After the detective observed the defendant's exposed penis,

he proceeded in a prompt but measured manner to effect the

defendant's arrest.    His moving in this manner is not evidence

of his "shock" or "alarm" but, rather, is merely evidence that

       4
       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, 369 Mass. 138, 142-143 (1975), appeal
dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877
(1976). Needless to say, an officer who views offensive conduct
as part of his or her job is differently situated from a
civilian who voluntarily views such conduct. However, the
differences do not necessarily aid the Commonwealth. Cf.
Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 584 (2003)
(evidence that officers were concerned with disruption caused by
defendant's yelling by itself could not satisfy public element
of disorderly conduct charge; "behavior that has an impact only
upon members of the police force is significantly different from
that affecting other citizens in [part because] it is an
unfortunate but inherent part of a police officer's job to be in
the presence of distraught individuals").
                                                                    5


he effectively was doing his job.   Contrast Commonwealth v.

Gray, 40 Mass. App. Ct. at 901 (highlighting that citizen victim

reacted "swiftly" by moving to stop the defendants and to

contact the police).   Simply put, a police officer's moving

quickly to arrest someone that he observed exposing his genitals

in public reveals nothing about the officer's emotional state.

    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, 82 Mass. App.

Ct. at 345.   Moreover, Pereira does not state that a police

officer's "disgust" on behalf of others, without more, suffices

to support a finding that the officer was "alarmed or shocked."

Reading Pereira in this manner would render it inconsistent with

Kessler.   In addition, this would allow the Commonwealth to

convert any ordinary indecent exposure case into one for open

and gross lewdness anytime there was a police eyewitness who was

willing to state that, out of concern for others, he or she was

"disgusted" by the defendant's actions.

    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
                                                             6


gross lewdness and remand for entry of a conviction on the

lesser included crime of indecent exposure.
