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13-P-287                                                Appeals Court

                COMMONWEALTH     vs.   JOHN G. COPPINGER.


                               No. 13-P-287.

           Plymouth.        May 2, 2014. - September 4, 2014.

              Present:    Trainor, Fecteau, & Carhart, JJ.


Open and Gross Lewdness and Lascivious Behavior. Constitutional
     Law, Vagueness of statute. Evidence, Intent. Intent.
     Practice, Criminal, Instructions to jury, Request for jury
     instructions. Words, "Exposure."



     Indictments found and returned in the Superior Court
Department on June 3, 2011.

    The cases were tried before Robert C. Cosgrove, J.


     Brian A. Kelley for the defendant.
     Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.


    CARHART, J.        After a jury trial, the defendant was found

guilty of open and gross lewdness, in violation of G. L. c. 272,

§ 16, and of accosting a person of the opposite sex, in

violation of G. L. c. 272, § 53.       Appealing from his conviction

of open and gross lewdness, he argues that the trial judge erred
                                                                       2


in denying his motion to dismiss, alleging that the statute

prohibiting open and gross lewdness is unconstitutionally vague.

The defendant also argues that the trial judge erred in denying

his motion for a required finding of not guilty and in

instructing the jury on a definition of the word "exposure."      We

affirm.

    Background.    The following facts are not in dispute.   On

April 5, 2011, the defendant entered a Target store in Kingston.

On that occasion, he chose to wear white "see-through"

compression shorts.    On his way into the store, the defendant

asked an employee whether it was "okay" to wear his shorts

inside.   Several Target employees testified to seeing the

defendant's buttocks and the "flesh color of his skin" through

the shorts.   One witness testified that she could "clearly" see

that the defendant was not wearing underwear.    Another witness

described seeing the outline of the defendant's "semi-erect"

penis.    On redirect, the witness stated that she saw a semi-

erect penis through the shorts.    The witness also testified that

she saw the defendant's testicles through the shorts.    Various

witnesses described their shock.    A store employee notified the

police.    The police responded as the defendant was pulling on a

pair of jeans over his compression shorts outside of the store.

The defendant was arrested and charged.
                                                                         3


    Prior to trial, the defendant filed a motion to dismiss,

alleging that the statute prohibiting open and gross lewdness

was unconstitutionally vague.    That motion was denied.        At the

close of the evidence, the defendant moved for a required

finding of not guilty.    That motion was also denied.     The

defendant requested that the trial judge instruct the jury that

"expose" means "an act of exposing or the state of being

exposed" and "to lay bare or uncover."      The judge instructed the

jury as follows:

    "[W]hat does it mean to expose one's genitals or
    buttocks[?] The word expose is not a technical legal term
    but is to be understood in its common meaning. The
    Merriam-Webster dictionary defines exposed in part as 'to
    cause to be visible or open to view,' or 'to display.'
    Whether the defendant exposed his genitals or buttocks is a
    question of fact to be resolved by you, the jury."

The defendant objected to the instruction.

    Discussion.    1.    Motion to dismiss.    On appeal, the

defendant argues that the trial judge erred in denying his

motion to dismiss because G. L. c. 272, § 16, is

unconstitutionally vague.    We disagree.     Statutes "must be

sufficiently specific so as to give fair notice as to what

conduct is forbidden."    Commonwealth v. Adams, 389 Mass. 265,

270 (1983).   A statute lacks the required specificity where "men

of common intelligence must necessarily guess at its meaning."

Commonwealth v. Crawford, 430 Mass. 683, 689 (2000), quoting

from Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980).
                                                                     4


Unspecific statutory language "may nonetheless be sufficiently

definite because of 'judicial construction, common law meaning,

or the statutory history of particular terms' . . . and such a

statute may be rendered 'constitutionally definite by giving it

a reasonable construction.'"    Commonwealth v. Quinn, 439 Mass.

492, 499-500 (2003), quoting from Commonwealth v. Gallant, 373

Mass. 577, 581 (1977), and Commonwealth v. Sefranka, supra at

111.

       General Laws c. 272, § 16, criminalizes "open and gross

lewdness and lascivious behavior."     The Supreme Judicial Court

has clearly and specifically set forth the meaning of those

terms:

       "In order to satisfy the constitutional standard of
       specificity, we construe G. L. c. 272, § 16, to prohibit
       the intentional exposure of genitalia, buttocks, or female
       breasts to one or more persons. The Commonwealth must
       prove beyond a reasonable doubt: (1) the defendant exposed
       his or her . . . genitals, buttocks, or female breasts to
       one or more persons; (2) the defendant did so
       intentionally; (3) the defendant did so 'openly,' that is,
       either he or she intended public exposure, or he or she
       recklessly disregarded a substantial risk of public
       exposure, to others who might be offended by such conduct;
       (4) the defendant's act was done in such a way as to
       produce alarm or shock; and (5) one or more persons were in
       fact alarmed or shocked by the defendant's exposing himself
       or herself."

Commonwealth v. Quinn, supra at 501.

       Notwithstanding this enunciation of the elements, the

defendant argues that the statute is unconstitutionally vague as
                                                                     5


applied to him,1 because it fails to define the term "exposure"

and provide him with notice that his conduct was criminal.     In

reviewing the statute as challenged, we view the evidence "in

the light most favorable to the Commonwealth."    Commonwealth v.

Rosa, 62 Mass. App. Ct. 622, 627 (2004).    In that light, there

is no question whatsoever that the defendant displayed his

genitals and buttocks through his compression shorts.     There is

also no question that exposing one's genitals or buttocks, in

conjunction with the other elements of the crime, violates the

statute.   See Commonwealth v. Quinn, supra at 497-499.

     Accordingly, the crux of our inquiry is whether exposure

requires a naked display or whether it is possible to expose a

body part through a covering.   We turn to "common understanding

and practices" to assist our analysis.     Commonwealth v. Jarrett,

359 Mass. 491, 496-497 (1971) ("[I]f the language which is

challenged conveys sufficiently definite warning as to the

proscribed conduct when measured by common understanding and

practices, it is constitutionally adequate").    See Commonwealth

v. King, 374 Mass. 5, 12 (1977) (turning to "common

understanding for definition" of "lewd, wanton, and lascivious

speech" and "prostitution"); Commonwealth v. Arthur, 420 Mass.

535, 540 (1995) (considering whether pubic hair fell within the


     1
       The statute is not unconstitutionally vague on its face.
See Commonwealth v. Ora, 451 Mass. 125, 126 (2008).
                                                                     6


"commonly understood meaning" of "genitalia"); Commonwealth v.

Robertson, 467 Mass. 371, 378 (2014) (turning to common

understanding to define "partial nudity").

     We consider the hypothetical scenario of a person wearing

shorts made from cellophane instead of the material that the

defendant wore.    We think that such conduct certainly falls

within a common understanding of exposure, as the person's

genitals and buttocks would be completely visible, regardless of

the covering.2    We see no meaningful difference between wearing

cellophane shorts and the defendant's choice to wear shorts that

were sufficiently revealing to a degree that the public could

see the "flesh color of his skin," his buttocks, and his

genitals.   While we are sensitive to the fine line between an

individual's freedom of expression and the criminal nature of

the conduct prohibited by the statute, the defendant's conduct

in this case went far beyond the reasonable bounds of

permissible expression.    See Commonwealth v. Ora, 451 Mass. 125,

126 (2008) (G. L. c. 272, § 16, is not facially

unconstitutional, even though it restricts "expressive conduct,"

because our case law limits the statute's reach to conduct

"imposed upon an unsuspecting or unwilling audience").




     2
       Indeed, defense counsel conceded, at oral argument, that
wearing shorts made from "Saran Wrap" would constitute exposure.
                                                                   7


    We also consider that the Supreme Judicial Court recently

opined that exposure is "generally defined as 'an act of

exposing,' 'a condition or instance of being laid bare or

exposed to view,'" or "to lay open to view; lay bare; make

known."    Commonwealth v. Robertson, supra at 377, quoting from

Webster's Third New International Dictionary 802 (2002), and

American Heritage Dictionary of the English Language 626 (4th

ed. 2006).    The defendant in this case certainly "opened," or

"exposed," his genitals and buttocks "to view" and made them

"known."    We think that displaying something such that it is

clearly visible, even while wearing shorts of the sort worn by

the defendant, fits within these definitions of "exposure."

    In concluding that the defendant's conduct fell within a

common understanding of exposure and that the statute was not

vague as applied to the defendant, we note that the vagueness

doctrine recognizes "the practical difficulties in drawing

criminal statutes both general enough to take into account a

variety of human conduct and sufficiently specific to provide

fair warning that certain kinds of conduct are prohibited."

Commonwealth v. Gallant, 373 Mass. at 580, quoting from Colten

v. Kentucky, 407 U.S. 104, 110 (1972).    See Commonwealth v.

Jarrett, 359 Mass. at 496 ("[M]ere difficulty in determining

whether certain marginal offences are within the meaning of the

language under attack as vague does not automatically render it
                                                                   8


unconstitutional for indefiniteness"); Commonwealth v. Miozza,

67 Mass. App. Ct. 567, 570 (2006), quoting from Commonwealth v.

Conefrey, 37 Mass. App. Ct. 290, 301-302 (1994), S.C., 420 Mass.

508 (1995) ("[A] statute is not vague merely because 'it

requires a person to conform his conduct to an imprecise but

comprehensible normative standard'").   Compare Commonwealth v.

Quinn, 439 Mass. at 501 (holding that the defendant could not be

prosecuted under G. L. c. 272, § 16, "for exposing his buttocks"

because all prior cases at that time involved genitalia, which

is commonly understood to include reproductive organs, not the

buttocks).

     Although our case law does not directly address exposure

through a covering,3 the defendant nonetheless had fair warning

that his conduct was prohibited because a common understanding

of exposure certainly includes his conduct in the Target store.

We believe that a person of "common intelligence" would not have

difficulty imagining that the statute proscribes displaying

one's genitals and buttocks through sheer material.

     3
       In Commonwealth v. Kelley, we considered whether a
defendant who was caught "masturbating in a pair of women's
underpants near a window in the master bedroom" indecently
exposed himself under G. L. c. 272, § 53. Commonwealth v.
Kelley, 25 Mass. App. Ct. 180, 181-182 (1987). See Commonwealth
v. Fitta, 391 Mass. 394, 396 (1984) (stating that G. L. c. 272,
§ 16, and G. L. c. 272, § 53, which criminalizes "indecent
exposure," are similar). We held that there was insufficient
evidence to convict because the defendant's conduct was not
"public." We did not address whether the defendant had
"exposed" himself while wearing underwear.
                                                                   9


Accordingly, we conclude that a person indeed exposes himself or

herself where his or her genitals, buttocks, or female breasts

are clearly visible to the public, regardless of whether the

person is naked or wearing a see-through covering.4   Thus, the

trial judge did not err in denying the motion to dismiss.

     2.   Motion for a required finding.   The defendant also

argues that the trial judge erred in denying his motion for a

required finding of not guilty because the judge did not apply

the rule of lenity in defining "exposure" and because there was

insufficient evidence that the defendant intentionally or

recklessly exposed himself to the public.5   In reviewing a

denial, we ask, "whether, after viewing the evidence in the

light most favorable to the Commonwealth, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt."   Commonwealth v. Arce, 467 Mass. 329, 333

     4
       We acknowledge that there may be a fine line regarding the
acceptable opacity of clothing. We limit our holding to the
facts in this case, where the defendant's genitals and buttocks
were clearly visible.
     5
       At the close of the Commonwealth's case, the defendant
moved for a required finding of not guilty on both counts: open
and gross lewdness, G. L. c. 272, § 16, and accosting a person
of the opposite sex, G. L. c. 272, § 53. While he moved
generically on the count charging accosting a member of the
opposite sex, the main focus of his argument was that the
provisions of G. L. c. 272, § 16, are unconstitutionally vague.
On appeal, he does not press his argument as to the count
charging a violation of G. L. c. 272, § 53, nor did he do so at
oral argument. In light of our decision herein, however, we are
persuaded that the Commonwealth presented sufficient evidence to
support convictions on both counts.
                                                                     10


(2014), quoting from Commonwealth v. Latimore, 378 Mass. 671,

677 (1979).

    Under the rule of lenity, we interpret ambiguous statutory

language in a criminal defendant's favor.     See Commonwealth v.

Maloney, 447 Mass. 577, 584-585 (2006).     "However, the rule of

lenity 'is a guide for resolving ambiguity, rather than a rigid

requirement that we interpret each statute in the manner most

favorable to defendants.'"     Id. at 585, quoting from

Commonwealth v. Roucoulet, 413 Mass. 647, 652-653 (1992).     Just

as we concluded that G. L. c. 272, § 16, is not void for

vagueness, we also conclude that the statute is not ambiguous.

Contrary to the defendant's argument, exposure is a word with a

commonly understood meaning.    See Commonwealth v. Carrion, 431

Mass. 44, 47 (2000) (rejecting a defendant's vagueness and

ambiguity arguments where the phrase, "any escape from custody

of the department," was "within common understanding").

    Moreover, even if we were to adopt the defendant's most

favorable suggested definition of exposure, "to lay bare or

uncover," a rational trier of fact could have returned a guilty

verdict.   Based on the testimony presented at trial, a rational

juror could have found that the defendant was "bared" or

"uncovered," in that he wore "see-through" shorts that displayed

his skin tone, genitals, and buttocks instead of the pants he

later used to cover himself when the police arrived.      We again
                                                                    11


consider the hypothetical scenario regarding cellophane and

suggest that a rational juror could find that a person wearing

cellophane shorts was "bare" or "uncovered," just as a rational

juror could have made such a finding here.     We also conclude

that a rational juror could have found that the defendant acted

intentionally or recklessly given that, among other behavior

indicating intent, the defendant asked permission to wear his

shorts in the store and immediately covered himself with pants

when the police arrived.    The denial of the motion was not

error.

    3.   Jury instructions.    Finally, the defendant argues that

the trial judge erred in providing a jury instruction that did

not include the defendant's suggested definition of exposure.

We review the instruction, to which the defendant objected, for

prejudicial error.    See Commonwealth v. Szlachta, 463 Mass. 37,

45 (2012).   In doing so, we are mindful that a trial judge has

discretion in giving jury instructions.     See Commonwealth v.

Robinson, 449 Mass. 1, 78 (2007).    Specifically, a trial judge

may use a dictionary in instructing jurors on statutorily

undefined terms.     See Commonwealth v. Walker, 442 Mass. 185,

194-195 (2004) (trial judge did not err in using Webster's

Dictionary to define "poison"); Commonwealth v. LeBlanc, 73

Mass. App. Ct. 624, 629 (2009), S.C., 456 Mass. 135 (2010)

(trial judge did not err in using a dictionary definition where
                                                                  12


the definition embodied the word's "usual and accepted

meanings").   Here, although the trial judge did not use the

exact definition suggested by the defendant, the judge provided

an acceptable dictionary definition couched in important

language that "[t]he word expose is not a technical legal term"

and the term should "be understood in its common meaning."     See

Commonwealth v. Robinson, supra (we consider the charge as a

whole).   We see no error.

    The defendant also argues that the trial judge erred in

giving the instruction because he did not apply the doctrine of

lenity in defining "exposure."   We, again, note that exposure is

not ambiguous and that the doctrine of lenity does not apply.

We conclude that there was no prejudicial error.

                                    Judgments affirmed.
