Opinion
14-P-1768
10-22-2015
COMMONWEALTH v. LUCIO TOMAR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Boston Municipal Court, the defendant was convicted of two counts of open and gross lewdness (G. L. c. 272, § 16). Because we agree with the defendant that the trial evidence for both convictions was insufficient as a matter of law with regard to one element of the crime, we reverse.
Open and gross lewdness requires proof beyond a reasonable doubt that, inter alia, a defendant "exposed his or her[] genitals, buttocks, or female breasts to one or more persons." Commonwealth v. Quinn, 439 Mass. 492, 501 (2003). Genitals are not "exposed" for purposes of G. L. c. 272, § 16, absent proof that someone could see them. See Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 479 (2010). The Commonwealth need not put forward an eyewitness who affirmatively testifies that she or he saw the person's genitalia, buttocks, or female breasts; rather, proof can be circumstantial. Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 302-303 & n.3 (1999). However, such proof still must be sufficient to allow a jury to conclude beyond a reasonable doubt that the defendant's genitalia (or buttocks or female breasts) were displayed to one or more persons. Commonwealth v. Arthur, 420 Mass. 535, 536-537 (1995) (insufficient proof that defendant exposed his genitalia even where there was testimony that he had pulled down one side of his bathing suit to mid-thigh, thereby "reveal[ing] his crotch area and pubic hair" before the eyewitnesses had turned their heads).
The two incidents before us occurred three days apart and were witnessed by the same woman. The woman had been walking her dog in a residential neighborhood when she spotted the defendant while he was masturbating outdoors. She could tell he was masturbating because "[h]e had the -- his back thrown towards the back and with the pelvic area towards the front with his hands in the pelvic area and making movements." The woman made no claim that she could see the defendant's penis, and she affirmatively acknowledged that she had not. She stated that he was masturbating with his "hands" (that is, plural), and that she could not have seen "what was inside the hands because his hands were closed." Based on the particular record before us, we conclude that the evidence that the defendant exposed his penis "to one or more persons" is insufficient as a matter of law. Commonwealth v. Quinn, supra. See Commonwealth v. Blackmer, supra.
The defendant testified and claimed that he was not masturbating but instead urinating, and that he was doing that because he had an overactive bladder. We, of course, do not evaluate the credibility of such testimony in reviewing the sufficiency of the evidence. Instead, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
It is not clear whether this statement about the closed hands was made in specific reference to the first incident, the second one, or both. However, the eyewitness's testimony consistently described the defendant as using the same modus operandi in both incidents, and she acknowledged that she saw only his hands in both incidents.
Commonwealth v. Poillucci, 46 Mass. App. Ct. at 302-303, the case on which the Commonwealth principally relies, is not to the contrary. In that case, there was proof that the child witness did see the defendant's penis even if she did not appreciate what she was seeing or use precise vocabulary in describing it.
We recognize that there are portions of the eyewitness's testimony that, if viewed in isolation, could be taken to suggest that she might have been able to see the defendant's penis had she not turned away. There is therefore some force to the Commonwealth's argument that such testimony raises the possibility that this case fits into the circumstances recognized by the Supreme Judicial Court in Commonwealth v. Arthur, supra at 537 n.2. However, the eyewitness here went on to indicate that the reason she could not see what the defendant was holding in his hands was that his hands were closed. Based on this, we do not view the mere suggestion that she might have been able to see his penis had she not turned away as allowing a jury to conclude beyond a reasonable doubt that the defendant exposed his penis to her.
The eyewitness stated that
"[w]hat I did was that as soon as I noticed what was going on, I just crossed the street, and I went away. I did not stop to look at his penis and to see how it looked like, or what size, or what color, nothing like that. I was surprised and I was scared, so I turned away and I -- I just walked towards my house."Later, she added that she was able to tell that the defendant was masturbating even though she "did not see the color, or the size, or any details of the -- his genitalia."
Although in Commonwealth v. Arthur the court held that the eyewitness accounts there were insufficient to prove the defendant had exposed his genitalia to them, the court inserted a footnote that states:
"Our agreement with the defendant's argument concerning the sufficiency of the evidence will not benefit the individual whose conduct is sufficiently offensive that his victims turn away before he has completed an act of indecent exposure. There may be evidence sufficient to prove that exposure of genitalia occurred, even when a victim has averted his or her eyes. Such evidence was lacking in this case."420 Mass. at 537 n.2.
Through one of their mid-deliberation questions, the jury revealed that it was unclear to them whether the eyewitness would have to have seen the defendant's penis in order to convict him of open and gross lewdness. The judge declined to treat that issue as a question of law and instead instructed the jury that this was a fact question that fell to them to resolve. Given our resolution of this case, we need not address the defendant's separate claim that there was error in the judge's instructions. Nor do we address the defendant's arguments that the judge erred in denying his motion to suppress and in not sua sponte instructing the jury on the defense of necessity.
We note that our reading of the statute does not leave the Commonwealth without an avenue to prosecute conduct of the sort at issue in this case. Public masturbation plainly can be prosecuted as lewd, wanton, and lascivious behavior in violation of G. L. c. 272, § 53, a statute that does not require proof that someone's genitals were exposed. See Commonwealth v. Blackmer, 77 Mass. App. Ct. at 480 ("[U]nlike in § 16, exposure of the relevant anatomy is not required under § 53"). In fact, the Commonwealth separately charged the defendant with two violations of that statute, but the jury acquitted him of those charges.
Judgments reversed. Verdicts set aside. Judgments for defendant.
By the Court (Cypher, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 22, 2015.