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SJC-12013

             COMMONWEALTH    vs.   LAWRENCE F. MAGUIRE.



       Suffolk.       September 8, 2016. - January 3, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Open and Gross Lewdness and Lascivious Behavior.     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.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Bradford R. Stanton for the defendant.
     Matthew T. Sears, Assistant District Attorney (Ashley E.
Polin, Assistant District Attorney, with him) for the
Commonwealth.


    HINES, J.     After a jury trial, the defendant, Lawrence F.

Maguire, was convicted in the Boston Municipal Court 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.    The Appeals Court affirmed the convictions in a divided

decision.    See Commonwealth v. Maguire, 87 Mass. App. Ct. 855

(2015).   We granted the defendant's application for further

appellate review.    After the case was entered in this court, the

defendant requested and received leave to file a new brief.      See

Mass. R. A. P. 27.1 (f), as amended, 441 Mass. 1601 (2004).      We

consider the brief "in lieu of the Appeals Court brief."     Id.

See Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006).    The brief

filed in this court makes no argument bearing on the conviction

of resisting arrest, and we do not, therefore, address the

merits of that conviction.   See Mass. R. A. P. 16 (a) (4), as

amended, 367 Mass. 921 (1975).    See also Commonwealth v. Walsh,

407 Mass. 740, 745 (1990).    We affirm the conviction of

resisting arrest.   We reverse the conviction of open and gross

lewdness and lascivious behavior because there was insufficient

evidence that the defendant's conduct caused any person to

experience "shock" or "alarm," as the statute requires.     We

remand for entry of a conviction of the lesser included offense

of indecent exposure.    We also clarify that the "shock" or

"alarm" requirement has both a subjective and an objective

component.

    Facts.    We summarize the facts in the light most favorable

to the Commonwealth, focusing on those relevant to the

defendant's claim of insufficiency of the evidence of open and
                                                                    3


gross lewdness and lascivious behavior.    See Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979).

    On October 14, 2010, Detective Sean Conway of the

Massachusetts Bay Transportation Authority (MBTA) transit police

department observed the defendant on an MBTA train traveling

toward the Park Street station.   At Park Street, the defendant

transferred to another train, and sat across from a college-aged

woman.   Detective Conway transferred onto the same train.   From

a distance of approximately eight to ten feet, the detective

observed the defendant rub his penis over his pants for thirty

seconds to one minute.   When the defendant departed the train at

the Hynes Convention Center station, Detective Conway continued

to follow him.

    There were between fifteen and twenty-five people on the

Hynes Convention Center station platform at that time.    From a

distance of about thirty feet behind the defendant, while on the

same side of the train tracks, Detective Conway saw the

defendant lean against a pillar with his left shoulder, with his

hands in front of him, facing a bench five or six feet away.

Two or three females were sitting on the bench.   The defendant

jerked his head up and down as if he were trying to attract the

females' attention and he began to manipulate his hands in front

of him, "consistent with someone who's about to urinate."    No
                                                                      4


urine was observed on the ground.     Detective Conway demonstrated

the defendant's movements to the jury.

    Detective Conway ascended a flight of stairs, crossed over

a landing, and went down another flight of stairs to a different

area of the same platform, so that he could see more clearly

what the defendant was doing.    As he descended the stairs, the

detective observed the defendant still facing the women seated

on the bench.   He saw the defendant's exposed penis for one or

two seconds.    Detective Conway testified that he was "disgusted"

and "concerned" that the women on the bench were being

"victimized" by the defendant's behavior.     Almost

simultaneously, the detective made eye contact with the

defendant, and the defendant tried to zip his pants and run

away.   Detective Conway attempted to speak with the women on the

bench but was unable to communicate with them, for reasons not

apparent on the record.    The detective then pursued the

defendant, who eventually was arrested.

    Discussion.     The statute criminalizing "open and gross

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

remained essentially unchanged for more than 200 years.     See

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

St. 1784, c. 40, § 3.     The elements of the crime, however, have

evolved through our decisional law.    See Commonwealth v. Gray,
                                                                    5


40 Mass. App. Ct. 901, 901 (1996), citing Commonwealth v. Fitta,

391 Mass. 394, 395-397 (1984).   We recognize that

    "proof of five elements [is required] to support a
    conviction, i.e., 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, 73 Mass. App. Ct. 258, 260-261 (2008),

quoting Commonwealth v. Kessler, 442 Mass. 770, 773 & n.4

(2004).   See Commonwealth v. Ora, 451 Mass. 125, 127 (2008).    It

is established that proof of the fourth and fifth elements --

both of which require "shock" or "alarm" -- is what

distinguishes "open and gross lewdness and lascivious behavior,"

which is a felony, from the "closely similar" misdemeanor of

indecent exposure under G. L. c. 272, § 53.   See Fitta, supra at

396, quoting Commonwealth v. Sefranka, 382 Mass. 108, 116

(1980).   In this case, the fifth distinguishing element is

absent:   there was insufficient evidence that the police

detective himself was "in fact" subjectively alarmed or shocked

by the defendant's conduct.   See Commonwealth v. Botev, 79 Mass.

App. Ct. 281, 287 (2011).   On the view we take of the evidence,

we therefore need not address the objective reasonableness of

the detective's subjective reaction, which is the focus of the

fourth element.   In future cases, however, it will be incumbent

on the Commonwealth to demonstrate not only subjective "shock"
                                                                      6


or "alarm" on the part of a victim, but also that the victim's

reaction was objectively reasonable.

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

element of proof requires the Commonwealth to demonstrate that

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

defendant's exposure.     See Botev, 79 Mass. App. Ct. at 287-288

(requirement that "one or more persons in fact be shocked or

alarmed . . . has remained unchanged since 1880").     This

requires evidence of strong negative emotions -- a subjective

inquiry -- most commonly corroborated by an immediate physical

response.    See, e.g., Swan, 73 Mass. App. Ct. at 261 (where

young student was "grossed out" and made "nervous" by exposure,

and rushed from room, alarm sufficiently established);

Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 273-274 (2001)

(evidence sufficient where student testified to being in shock,

upset, angry, and sad; that she left after defendant's exposure;

and that her failure to report instantly "was due . . . to her

being 'too in shock'"); Commonwealth v. Poillucci, 46 Mass. App.

Ct. 300, 303-304 (1999) (evidence sufficient where girl alerted

her parents to defendant's conduct and testified that she felt

"very uncomfortable and nervous"); Gray, 40 Mass. App. Ct. at

901 (jury could find alarm where witness testified that he was

"'disgust[ed]' by what he saw," and "acted swiftly and

purposefully to stop and identify the perpetrators for the
                                                                   7


police").   Contrast Kessler, 442 Mass. at 772-775 (where boys

reacted to viewing masturbation with nervous giggling, and

continued to watch, insufficient evidence of shock or alarm);

Commonwealth v. Militello, 66 Mass. App. Ct. 325, 333-334 (2006)

(where "boys did not experience a reaction so intense that they

immediately sought to notify someone of the defendant's

behavior," evidence insufficient to establish "serious negative

emotional experience" [citation omitted]).

    In this case, the detective was the only eyewitness who

testified to the defendant's conduct.   There was no evidence

that the women seated on the bench or any other person noticed

the defendant or his actions.   The detective's testimony was

that he was "disgusted" after viewing the defendant's exposed

penis, not for himself, but rather out of "concern" for the

women seated on the bench.   While we do not discount the

sincerity of the detective's concern, there is nothing to

suggest that the women themselves experienced any strong

negative emotion, such as fright or intimidation.   See Ora, 451

Mass. at 128 ("central purpose of G. L. c. 272, § 16, [is] one

of preventing fright and intimidation, particularly regarding

children").   Indeed, the women remained seated while the

detective traversed the station platform and stairs, and while

the defendant's penis was exposed.
                                                                    8


     With respect to the detective, we agree with the dissenting

judge of the Appeals Court, who described the detective's use of

the term "'disgusted' to mean something analogous to 'offensive'

under the indecent exposure statute.   See Commonwealth v.

Cahill, 446 Mass. 778, 781 (2006) ('Offensive acts are those

that [are] . . . repugnant to the prevailing sense of what is

decent or moral')."   Maguire, 87 Mass. App. Ct. at 862 (Milkey,

J., concurring in part and dissenting in part).   To be sure,

special words neither prove nor disprove shock or alarm.     See

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

What is required, however, is evidence that a witness personally

sustained the type of "serious negative emotional experience"

that is stronger that "mere nervousness and offense."    Ora, 451

Mass. at 127, quoting Kessler, 442 Mass. at 774-775.    Vicarious

concern for other people or even disgust does not "convert any

ordinary indecent exposure case into one for open and gross

lewdness."   Maguire, 87 Mass. App. Ct. at 863 (Milkey, J.,

concurring in part and dissenting in part).   Someone must be

personally and "in fact" "shocked or alarmed" by the conduct; it

is not sufficient that someone merely might be.   See Pereira,

supra at 346.1


     1
       In the Pereira case, a police officer viewed a public sex
act (masturbation) and testified that he was "personally, angry"
in addition to being "disgusted." Pereira, 82 Mass. App. Ct. at
345. Although the Appeals Court concluded that the evidence was
                                                                     9


    In this case, the detective observed an exposed penis and

testified that he was "disgusted" and concerned for others.

Compare id. at 345.   Nothing about his testimony or his actions,

however, would have permitted a rational jury to find that he

(or anyone else) personally experienced shock or alarm.     Cf.

Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 584 (2003)

("behavior that has an impact only upon members of the police

force is significantly different from that affecting other

citizens," for purposes of disorderly conduct charge under G. L.

c. 272, § 53).

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

element, "shock" or "alarm" impact, requires the Commonwealth to

demonstrate a "substantially more serious and negative impact"

to prove conduct constituting "open and gross lewdness and

lascivious behavior," under G. L. c. 272, § 16, as compared to

conduct that violates the indecent exposure statute, G. L.

c. 272, § 53.    Ora, 451 Mass. at 127.   The "process of judicial

construction," id. at 128, now leads us to emphasize that this

element includes an objective component.    Cf. Commonwealth v.



sufficient to establish that the police officer "experienced a
significant negative emotion," id. at 347, it did not address
whether, as an objective matter, there was evidence to
demonstrate that it was reasonable for an experienced police
officer to be "shocked and alarmed" by the conduct. Cf. Revere
v. Aucella, 369 Mass. 138, 142-143 (1975) (G. L. c. 272, § 16,
may not constitutionally apply where there is no imposition of
"lewdness or nudity on an unsuspecting or unwilling person").
                                                                   10


Braica, 68 Mass. App. Ct. 244, 246 (2007) (criminal harassment

statute expressly requires conduct or speech that both

"seriously alarmed the victim" and would "cause a reasonable

person to suffer substantial emotional distress," G. L. c. 265,

§ 43A [a]).    Cf. also Commonwealth v. Johnson, 470 Mass. 300,

308, 313 (2014) (construing element of "serious[] alarm[]" under

criminal harassment statute), citing Kessler, 442 Mass. at 773-

774 (offense did not satisfy shock or alarm component of open

and gross lewdness statute).

       The objective of G. L. c. 272, § 16, is to criminalize

behavior that is shocking or alarming to society generally, "as

distinct from punishing the defendant for the effect of that

conduct on particular victims."    Botev, 79 Mass. App. Ct. at

287.   The requirement that one or more persons was personally

and in fact shocked or alarmed is the first step in "insur[ing]

that the conduct in question indeed is of a character warranting

a felony conviction under G. L. c. 272, § 16, as distinct from a

misdemeanor conviction under G. L. c. 272, § 53."    Id. at 288.

The requirement that the person's reaction be reasonable is the

second step.   A person's particular reaction -- or the

particular words used to characterize his or her emotional

response -- to the misconduct will not suffice to support a

conviction under § 16 if the reaction is not one that a fact

finder finds reasonable.    See Braica, 68 Mass. App. Ct. at 246.
                                                                  11


See also Commonwealth v. Sullivan, 469 Mass. 621, 624-629 (2014)

(applying objective standard to charge of accosting or annoying

person of opposite sex under G. L. c. 272, § 53).     Requiring the

Commonwealth to demonstrate that "shock" or "alarm" was an

objectively reasonable reaction in the circumstances of the

conduct is consistent with the statutory objective.

    Conclusion.    The judgment of conviction of resisting arrest

is affirmed.   The judgment of conviction of open and gross

lewdness and lascivious behavior is reversed.     Because the

defendant does not challenge the sufficiency of the evidence

with respect to the first four elements of open and gross

lewdness and lascivious behavior, including public exposure of

his penis, see G. L. c. 277, § 79, the case is remanded for

entry of a conviction on the lesser included offense of indecent

exposure.

                                    So ordered.
