Opinion
No. 15–P–885.
10-24-2016
COMMONWEALTH v. Chantelle ONEILL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant, Chantelle ONeill, was convicted of committing an unnatural and lascivious act, in violation of G.L. c. 272, § 35. On appeal, she claims the trial judge erred in denying her motion for a required finding of not guilty because there was insufficient evidence to prove that the sexual act upon which the conviction is based occurred in public. We affirm.
Background. We summarize the relevant facts, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On the evening of November 11, 2014, Officer Richard Fucci was on patrol in an unmarked cruiser in the area of Lewis and Union Streets in the city of Lynn. At approximately 9:30 P.M., he saw the defendant, whom he recognized. Officer Fucci noted that the defendant was looking at the passing cars and it appeared to him that “she was working as a prostitute.” While he was watching, Officer Fucci saw a green Toyota pull up and stop near the defendant, who then approached the vehicle and spoke briefly with the driver. Thereafter, the defendant entered the vehicle and the two drove to a nearby Dunkin' Donuts restaurant. The driver, who was never identified at trial, and the defendant went into the Dunkin' Donuts where they remained for about fifteen minutes. Then, they drove to a parking lot of a Rite Aid Pharmacy (Rite Aid) located on Lewis Street and parked in the middle of the lot.
Officer Fucci parked his vehicle and walked toward the Toyota. He was approximately fifty feet away when he saw the defendant's head “bobbing up and down in the [driver's] lap” for ten to twenty seconds. Officer Fucci approached the car and knocked on the window. The defendant brought her head up, and Officer Fucci saw the driver's penis.
There was evidence that the Rite Aid parking lot is accessible from Lewis Street, a two-lane road with businesses and residences located on both sides of the street, and from Stone Place, a dead-end residential street. Officer Fucci described the vehicle traffic in the area as heavy. A number of businesses, including a liquor store, a bar, and a pizza shop are located on Lewis Street across from the Rite Aid parking lot. The area was illuminated and some of the businesses were open at that hour. In addition, Officer Fucci saw an individual leave the Rite Aid and observed three or four other vehicles in the parking lot.
Discussion. “A consensual unnatural act must be committed in a public place in order to be punishable under G.L. c. 272, § 35.” Commonwealth v. Morrill, 68 Mass.App.Ct. 812, 813 (2007), quoting from Commonwealth v. Scagliotti, 373 Mass. 626, 628 (1977). “The essential query to determine whether a place is public for the purposes of G.L. c. 272, § 35, is ‘whether the defendant intended public exposure or recklessly disregarded a substantial risk of exposure to one or more persons.’ “ Id. at 814, quoting from Commonwealth v. Ferguson, 384 Mass. 13, 16 (1981). At trial, the Commonwealth proceeded on the theory that the defendant recklessly disregarded a substantial risk of exposure to one or more persons.
The defendant contends that the evidence is insufficient to support a finding that the sexual act was performed in public for three reasons. First, she asserts that by parking in the middle of the lot both she and the driver took reasonable measures to ensure privacy. Second, she claims that because no one other than Officer Fucci observed the act, the Commonwealth cannot meet its burden of proving the public element of the offense. And third, she alleges that the interior of the vehicle was not visible from the outside.
None of these reasons persuades us that the defendant's motion for a required finding of not guilty should have been allowed. Apart from the fact that the defendant incorrectly views the evidence in the light most favorable to her, the argument misses the mark. As we have noted, the question is whether there was sufficient evidence to prove that the defendant recklessly disregarded a substantial risk of disclosure to others at the time she committed the sexual act. “Acts are committed in a public place when they occur in an area likely to be ... observed by persons other than the perpetrators.” Id. at 814 n. 1. Here, the evidence demonstrated that the act in question occurred in a parking lot to which the public had access and at a time when nearby businesses were open. In these circumstances it was not reasonable for the defendant to expect privacy. To the contrary, the likelihood of being observed by another person was reasonably foreseeable. See id., at 814 (conviction of committing an unnatural and lascivious act upheld where defendant acted on unreasonable expectation that his conduct would remain private). Contrast Commonwealth v. Beauchemin, 410 Mass. 181, 184 (1991) (acts committed in parking lot of closed school during snowstorm and in faculty lounge on weekend not public because “little ‘likelihood of [the act] being observed by a casual passerby’ “ [citation omitted] ); Commonwealth v. Nicholas, 40 Mass.App.Ct. 255, 257–258 (1996) (wooded area one hundred feet from closed rest stop on highway not public because no evidence that anyone used wooded area).