MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was found guilty of open and gross lewdness, in violation of G. L. c. 272, § 16, indecent exposure, in violation of G. L. c. 272, § 53, and failing to stop for police, in violation of G. L. c. 90, § 25. He now brings this direct appeal.
Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following: On the evening of June 25, 2017, the defendant was walking in the area of Parker Elementary School in Quincy wearing only a long white T-shirt. The T-shirt hung down to “beneath his bottom.” One witness described the defendant as waving or “swishing [the T-shirt] up and down a little bit,” and testified that he “could see his genitals, his testicles, his penis.” This occurred near a playground at the Parker Elementary School where children were pressed against the fence with their hands and faces and had their eyes on the defendant. The witness who saw the defendants genitals was “disgusted mostly for the children.” The waving or swishing of the T-shirt permitted the witness to confirm that indeed he had seen the defendants genitals. The defendant entered his white pickup truck and drove away from the area erratically. One witness, who testified that the defendant appeared to be drunk, called the police. The police responded and began looking for the defendant and soon observed him operating his pickup truck nearby on Felton Street. An officer followed the defendant and observed him driving back to his original location, across the street from the playground. When the defendant observed the police officer, he pulled away from the curb and began driving away.
The officer activated his cruisers lights to effectuate a motor vehicle stop and the defendant stopped in front of the nearby Atlantic Middle School. By now there were two police cruisers present. Officers John McGowen and David Levine exited their respective cruisers to approach the defendant, but as they were approaching, the defendant drove away.
The officers returned to their cruisers and pursued the defendant. He was stopped a block away when police positioned their cruisers to block his travel lane.
Both officers exited their cruisers, drew their weapons, and ordered the defendant to show his hands. The defendant responded by moving his hands in and out of the vehicle. With guns drawn, officers approached the defendant and ordered him out of the vehicle. He refused.
The officers then opened the drivers side door to remove him, and saw that he had removed his T-shirt and was completely naked. Officer McGowan testified that he saw all parts of the defendant, including his genitals, that he felt “shocked,” and that he had never seen anything like it. Officer Levine testified that he, too, saw the defendants genitals as well as his buttocks, “everything from head to toe.” He also testified that he was “shocked” and “alarmed.”
The jury were instructed that the open and gross lewdness charge arose from the defendants conduct at the time of the police stop, and that the indecent exposure charge was based on the observations of the defendant by the civilian adult who observed the defendants genitals while the defendant was walking by the elementary school.
Discussion. Indecent exposure is a lesser included offense of open and gross lewdness. E.g. Commonwealth v. Waterman, 98 Mass. App. Ct. 651, 654-656 (2020). The defendants first argument is that the defendant committed but a single crime through his conduct of being exposed -- from the moment at which he was first observed walking near the elementary school until the moment minutes later when the police pulled him from his truck -- albeit a single crime with several victims, including the civilian witness and the two police officers. The defendant contends that, because he committed a single crime, the convictions were duplicative. He raises this claim for the first time on appeal, so we review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Mamay, 407 Mass. 412, 418 (1990). But if there is “any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act,” then we will find a substantial risk of a miscarriage of justice. Commonwealth v. Kelly, 470 Mass. 682, 701 (2015).
We disagree with the premise of the defendants argument. The defendant argues that this was one continuous uninterrupted act, and therefore not “two distinct, conduct-based offenses.” Commonwealth v. Botev, 79 Mass. App. Ct. 281, 289 (2011). Although there is no bright line for determining when a crime like this is a single offense with more than one victim rather than more than one offense, “the appropriate inquiry in a case like this ․ asks what ‘unit of prosecution’ was intended by the Legislature as the punishable act․ The inquiry requires us to look to the language and purpose of the statute[ ], to see whether [it] speak[s] directly to the issue of the appropriate unit of prosecution ․ keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendants favor.” Id. at 286 (quotation omitted). The relevant statutes here are concerned with “punishing the defendant for conduct offensive to society, as distinct from punishing the defendant for the effect of that conduct on particular victims.” Id. at 287. Accordingly, the focus of our inquiry is the defendants conduct and what factors divide such conduct into separable episodes, as opposed to the number of victims affected. Id. at 287-288.
We conclude that, based upon all the facts and circumstances here, the incident at the school and the incident of the defendants removal from the truck, were sufficiently separate and distinct that they can support both convictions. Although the two events were close in time they were separated by some physical distance. This alone might not be enough to render them distinct acts -- one can imagine, for example, a completely unclothed person exposing himself on a street, and then getting into his car to drive home and we might not say it was a second offense when arresting officers saw him -- but in this case the defendant engaged in two further acts between the first and second events that rendered them distinct. First, he completely removed his T-shirt, which the jury could have found provided at least intermittent coverage of his genitals during the initial episode when he was seen by the civilian adult witness as well as two other testifying adult witnesses who did not see his genitals. The jury could have thus found that through that removal, the defendant engaged in a separate act of exposure. The defendant also fled from the police while two officers were approaching his vehicle on foot after the defendant had been stopped, creating a high likelihood that they would give chase, remove him from the vehicle, and see his exposed genitals.
Given all the facts and circumstances, then, we see no error in treating the two incidents as distinct acts, and in charging them in two different counts. Consequently, we conclude that the two convictions are not duplicative.
2
The defendant next argues that there was insufficient evidence to support the conviction of open and gross lewdness. To prove open and gross lewdness the Commonwealth must prove five elements: 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. Maguire, 476 Mass. 156, 158 (2017), quoting Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008).
The defendant argues first that the evidence was insufficient to support a finding he exposed himself intentionally or openly to the police officers. We disagree. The evidence supported a finding that he had intentionally exposed himself, and his action in pulling away from the officers after they had stopped him was sufficient to demonstrate a reckless disregard of the risk of public exposure to the police.
The defendant next notes that the officers’ claims of shock and alarm must have been “objectively reasonable” to support the conviction, Maguire, 476 Mass. at 159, and he claims that the evidence was insufficient to prove they were.
We are not persuaded. The evidence supported the jurys finding beyond a reasonable doubt that one or both of the officers reactions of shock or alarm were objectively reasonable. The jury were entitled to conclude that it was objectively reasonable to be shocked by finding the defendant completely naked upon opening the door of the car he was driving in a circumstance where the officers testified that they have never seen anything like that before. The officers also both testified that they were in fact subjectively shocked, and, although the defendant claims that the evidence on this point (which of course tracked the very language of the statute) was insufficient, the credibility of that testimony was for the jury.
Next, the defendant contends that evidence concerning the schools, the schoolchildren, and the playground should not have been admitted. Specifically, the defendant objected to the admission of testimony that he was at some point at or around the Atlantic Middle School or the Parker Elementary School playground, any testimony regarding what unidentified witnesses including children might have seen at either location, video surveillance footage from Atlantic Middle School, and four photos depicting the schools and the playground. At argument, however, the defendant conceded that the facts revealed by that evidence may have had a bearing on whether the witnesses were offended by the indecent exposure, an element of that crime, a point with which we agree. Commonwealth v. Kennedy, 478 Mass. 804, 811-812 (2018) (indecent exposure “requires proof of an intentional act of lewd exposure, offensive to one or more persons”), quoting Commonwealth v. St. Louis, 473 Mass. 350, 364 (2015). Although there is a serious concern in a case like this about the prejudicial effect of evidence of the presence of children where the defendant is not in fact charged with exposing himself to a child, we think that, given the relevance of the evidence to the question of offense, the judge was within his discretion in admitting the challenged evidence.
Finally, the defendant challenges two aspects of the prosecutors closing. Because neither was objected to at trial, we review both claims to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 310 (2000). First, the prosecutor described both the Parker Elementary and Atlantic Middle School as “packed with children.” Given the permissibly admitted evidence of a group of children with their faces and hands pressed up against a fence at the elementary school looking at the defendant, however, we do not think that any error created a substantial risk of a miscarriage of justice.
The prosecutor also argued that the defendant “knows exactly what he was doing. He knows hes guilty of this offense and I ask that you find him guilty.” The defendant, quoting Commonwealth v. Young, 399 Mass. 527, 532 (1987), argues that this “may be an improper reference to a defendants failure to testify; it may be a suggestion or implication that the prosecutor has particular knowledge of a fact not in evidence; or it may be an attempt to ask the jury to draw an inference that is not fairly warranted.”
That language, however, taken from Young, refers to commentary on what a defendant said or did in the courtroom while not testifying. Given the record here, we cannot say that the comment here amounted to such a reference, although it may have been improper and certainly would better have been left unsaid. Nonetheless, even assuming there was some error here, on this record we cannot say it created a substantial risk of a miscarriage of justice.
Judgments affirmed.
FOOTNOTES
2
. In this light, we are unable to conclude that the trial judge improperly usurped the jurys role as factfinder by instructing that the indecent exposure charge arose from incidents “in the area of the Parker Elementary School” whereas the open and gross lewdness and lascivious behavior charge arose from conduct that took place after the defendant was “found in his truck by the police officers.” “Convictions of two cognate offenses will be sustained where the judge instructs the jury explicitly that they must find separate and distinct acts underlying the different charges.” Kelly, 470 Mass. at 699 (quotation omitted). The judge here so instructed the jury, describing with particularity which alleged acts supported which charges.