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14-P-752 Appeals Court

COMMONWEALTH vs. LAWRENCE F. MAGUIRE.

No. 14-P-752.

Suffolk. February 27, 2015. - August 11, 2015.

Present: Vuono, Milkey, & Blake, JJ.

Open and Gross Lewdness and Lascivious Behavior. Resisting 

Arrest. 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. 

Bradford R. Stanton for the defendant.

Anthony Riley (Matthew T. Sears, Assistant District 

Attorney, with him) for the Commonwealth.

VUONO, J. Following a jury trial in the Boston Municipal 

Court, the defendant, Lawrence F. Maguire, was convicted 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.

1 On appeal, the defendant claims that the evidence was 

insufficient to support the convictions.

2 We affirm.

Background. As is required in considering a question of 

the sufficiency of the evidence, "we must look at the evidence 

in the light most favorable to the Commonwealth to determine 

whether any rational jury could have found the essential 

elements of the crime beyond a reasonable doubt." Commonwealth

v. Ruci, 409 Mass. 94, 96 (1991), citing Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979). A reasonable jury could 

have found the following facts.

On the afternoon of October 14, 2010, Detective Sean Conway 

of the Massachusetts Bay Transportation Authority (MBTA) and the 

defendant were on a train headed for the Park Street station. 

Once the train arrived at the station, the defendant transferred

to another train and sat down across from a college-aged woman. 

Unbeknownst to the defendant, Detective Conway had followed him 

 

1 The jury acquitted the defendant of assault and battery on 

a public employee, G. L. c. 265, § 13D, and the lesser included 

offense of assault and battery.

2 The defendant moved for a required finding of not guilty 

at the close of the Commonwealth's case and renewed his motion 

at the close of all the evidence. The defendant testified on 

his own behalf and denied engaging in any inappropriate or 

criminal behavior. As the jury was entitled to reject the 

defendant's testimony in its entirety, the Commonwealth's case 

did not deteriorate with the presentation of the defendant's 

case. See Commonwealth v. Berry, 68 Mass. App. Ct. 78, 81

(2007). Therefore, we limit our discussion of the evidence to 

that presented by the Commonwealth in its case-in-chief.
3

and was standing about eight to ten feet away when he saw the 

defendant rub his penis with his hand over his pants for thirty 

seconds to a minute.

3 The defendant alighted from the train at 

the Hynes Convention Center station, and Detective Conway 

continued to follow him.

Upon arriving on the station platform, Detective Conway saw 

the defendant lean against a pillar with his hands in front of 

him. There were about twenty to twenty-five people on the 

platform and two or three women sitting on a bench five to six 

feet away from the defendant. The defendant faced the women and 

jerked his head up and down as if he was seeking their 

attention, and then he began to move his hands as if he was 

preparing to urinate. Detective Conway was approximately thirty 

feet behind the defendant when he observed this behavior, which 

he demonstrated to the jury.

In order to better see what the defendant was doing, 

Detective Conway crossed over the platform to the other side of 

the tracks. As he was coming down the stairs, he had a clear 

view of the defendant, who, while still facing the women sitting 

on the bench, had exposed his penis. Detective Conway testified 

that he saw the defendant's penis for one or two seconds and was 

 

3 The record does not disclose the reasons for which 

Detective Conway initially followed the defendant.
4

"disgusted" and "concerned" that the women sitting on the bench 

were being "victimized" by the defendant's behavior.

Almost simultaneously with seeing the defendant expose his 

penis, Detective Conway made eye contact with the defendant, who 

immediately tried to zip up his pants and ran away. Detective 

Conway returned to the other side of the platform and attempted 

to speak with the women for whom he was concerned. However, for 

reasons which are not clear from the record, he was not able to 

communicate with them. Meanwhile, the defendant was running 

away; thus, Detective Conway cut short his inquiry and chased 

after the defendant. During the ensuing pursuit, Detective 

Conway said, "[S]top, police," to no avail. Eventually,

Detective Conway caught up with the defendant, and once again 

commanded the defendant to stop by repeating, "[S]top, police." 

At this point, the defendant stopped, turned toward Detective 

Conway, and put up his fists in a fighting stance. He then

punched Detective Conway in the "chest and arm area." Detective 

Conway struggled with the defendant for two to three minutes 

before he was able to subdue him and place him in handcuffs.

Discussion. 1. Open and gross lewdness. While the 

statute, G. L. c. 272, § 16, does not define "open and gross 

lewdness and lascivious behavior," our decisional law requires 

proof of five elements to support a conviction: "that the 

defendant (1) exposed genitals, breasts, or buttocks; (2) 
5

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)

(Swan), quoting from Commonwealth v. Kessler, 442 Mass. 770, 773 

& n.4 (2004). See Instruction 7.400 of the Criminal Model Jury 

Instructions for Use in the District Court (2009). The 

defendant contends there was insufficient evidence as to all 

five elements.

Our review of the evidence leaves us with no question as to 

the sufficiency of the evidence with regard to the first four 

elements. Detective Conway's testimony of his observations 

permitted a rational jury to find beyond a reasonable doubt that 

the defendant "exposed" his penis and that he did so 

"intentionally" and "openly." Furthermore, because the 

defendant exposed himself while facing the women sitting on a 

bench, and in a public place, the jury also could infer that 

this action was done in such a way so as to cause alarm or 

shock. See Swan, supra at 261 (defendant's positioning himself 

in close proximity to victim considered as evidence that 

defendant exposed himself in a manner so as to produce shock or 

alarm). However, the sufficiency of the evidence as to the 

fifth element of the offense, which requires the Commonwealth to 

prove that the defendant actually caused one or more persons to 
6

experience shock or alarm, is a closer question. We recently 

addressed the quantum of evidence required to prove this element 

beyond a reasonable doubt in Commonwealth v. Pereira, 82 Mass. 

App. Ct. 344, 346-348 (2012) (Pereira). In that case, we said 

that "[w]here an 'observer suffered significant negative 

emotions as a result of the exposure,' the observer's reaction 

'could justifiably be deemed alarm or shock,' [sufficient] to 

convict a defendant of open and gross lewdness." Id. at 347, 

quoting from Commonwealth v. Kessler, supra at 775. We further

noted that "[w]itnesses are not required to use any special 

words to express that they experienced a significant negative 

emotion" and "[c]ourts have found a variety of formulations of 

negative emotions to satisfy the element of causing actual shock 

or alarm, so long as the emotions were of a significant 

character." Pereira, supra at 347.

Our decision in Pereira, contrary to the conclusion reached 

by the dissent, controls the outcome here. In that case, we 

concluded that a rational jury could have found beyond a 

reasonable doubt that the defendant's actions -- masturbating 

while sitting in his vehicle, which was parked near the Sullivan 

Square MBTA station -- produced the requisite shock and alarm in 

a police officer who observed the defendant. The officer's 

attention was drawn to the defendant because "he had his head 

down" and "his right shoulder was hunching up and down." Id. at 
7

345. The officer approached the defendant's vehicle and upon

looking in the window observed the defendant with his pants 

down, masturbating. Ibid. The officer described his reaction 

to the defendant as feeling "personally, angry, a little bit 

disgusted." Ibid. The officer also noted that it was "a busy 

area, a lot of women around there, kids, everything so I wasn't 

happy about it." Ibid.

Here, Detective Conway stated that the defendant's exposure 

caused him to feel "disgusted" and "concerned that the females 

that were sitting on the bench were being victimized by his 

behavior." The defendant argues that "disgust" and "concern," 

absent other evidence, are too equivocal to convey a significant 

negative emotion. We note no significant distinction between 

the "little bit disgusted" and "angry" described by the police 

officer in Pereira and the "disgust" and "concern[ ]" described 

by Detective Conway.4 See Commonwealth v. Gray, 40 Mass. App.

Ct. 901, 901 (1996) (evidence sufficient where victim, a member 

 

4 We respectfully disagree with the conclusion reached by 

our dissenting colleague that Detective Conway's feeling of 

"disgust" was of a "vicarious sort" more akin to being offended 

than shocked or alarmed and, therefore, insufficient to satisfy 

the fifth element of the offense charged. That a rational jury 

could reasonably so conclude is inconsequential. The question 

so often repeated in our cases is whether any rational trier of 

fact could conclude, beyond a reasonable doubt, that the 

defendant's actions produced shock or alarm in Detective Conway. 

Moreover, that the detective, according to the dissent, should 

not have been surprised by the defendant's conduct does not 

preclude a finding that he was, in fact, shocked or alarmed.
8

of the maintenance staff at a shopping mall, was "disgusted" by 

sight of two men engaged in act of fellatio in public bathroom); 

Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 303-304 (1999)

(even though witness "did not express herself hysterically," a 

rational fact finder could conclude that she had been "shocked 

or alarmed" based on her description of what she saw and that 

she felt "very uncomfortable and nervous"); Swan, 73 Mass. App. 

Ct. at 261 (witness's testimony that he was "grossed out" and 

"nervous" sufficient for finding that he was "alarmed").

Further, contrary to the defendant's assertion, Detective 

Conway's expressed concern for the public is relevant in that it

illuminates "how the circumstances surrounding the incident 

influenced [Detective Conway's] reaction to it," Pereira, 82 

Mass. App. Ct. at 348, and, ultimately, supports the conclusion 

that the defendant's conduct caused him to be shocked or 

alarmed. Accordingly, we conclude that the judge did not err in 

denying the defendant's motion for a required finding of not 

guilty.

2. Resisting arrest. A defendant resists arrest if "he 

[or she] knowingly prevents or attempts to prevent a police 

officer, acting under color of his official authority, from 

effecting an arrest of the actor or another, by: (1) using or 

threatening to use physical force or violence against the police 

officer or another; or (2) using any other means which creates a 
9

substantial risk of causing bodily injury to such police officer 

or another." G. L. c. 268, § 32B(a), inserted by St. 1995, 

c. 276. The crime occurs at the time an officer is "effecting" 

an arrest, which is when "there is (1) an actual or constructive 

seizure or detention of the person, [2] performed with the 

intention to effect an arrest and [3] so understood by the 

person detained." Commonwealth v. Grandison, 433 Mass. 135, 145 

(2001) (quotation omitted). The relevant inquiry is an 

objective one: i.e., whether, under the circumstances, a 

reasonable person would have understood that he was being 

arrested. Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 

(2008).

Viewed in the light most favorable to the Commonwealth, the 

evidence established that in response to Detective Conway's 

repeated commands of "[S]top, police," the defendant continued 

to run, and when the detective caught up with the defendant, the 

defendant assumed a fighting stance and threw a punch at the 

detective. Afterward, the defendant struggled with Detective 

Conway, even though the detective repeatedly ordered him to 

place his hands behind his back. Even if we were to assume, as 

the defendant claims, that he did not initially recognize 

Detective Conway as a police officer (Detective Conway was not 

in uniform, but he wore a badge and his firearm was visible),

the evidence was sufficient to support the finding that the 
10

defendant understood that Detective Conway was a police officer 

when he said, "[S]top, police." Moreover, given the protracted 

struggle to place him in handcuffs and the shouts to comply, a 

reasonable person would have understood that he or she was

subject to arrest. See Commonwealth v. Quintos Q., 457 Mass.

107, 111 (2010). Accordingly, we reject the defendant's 

challenge to his conviction of resisting arrest.

Judgments affirmed.
MILKEY, J. (concurring in part and dissenting in part). 

There plainly was sufficient proof that the defendant committed 

an indecent exposure under G. L. c. 272, § 53. That statute 

requires only an "intentional act of lewd exposure, offensive to 

one or more persons." Commonwealth v. Swan, 73 Mass. App. Ct. 

258, 261 (2008) (quotation omitted). However, as the Supreme 

Judicial Court has repeatedly emphasized, significant additional 

proof is required for the far more serious charge of open and 

gross lewdness under G. L. c. 272, § 16.1 See Commonwealth v. 

Kessler, 442 Mass. 770, 774 (2004) (Kessler) (insufficient proof 

that defendant's masturbating in front of window constituted 

open and gross lewdness). Because I believe the necessary 

additional proof is absent here, I respectfully dissent.2

As the Supreme Judicial Court has made clear, "the central 

purpose of G. L. c. 272, § 16, [i]s one of preventing fright and 

intimidation, particularly regarding children." Commonwealth v. 

Ora, 451 Mass. 125, 128 (2008) (Ora). A conviction under that 

statute requires, inter alia, proof beyond a reasonable doubt 

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

 

1 Open and gross lewdness is a felony punishable by up to 

three years in State prison. G. L. c. 272, § 16. Indecent 

exposure is a misdemeanor punishable by up to six months in a 

jail or house of correction. G. L. c. 272, § 53.

2 I agree with the majority that there was sufficient 

evidence to support the defendant's conviction of resisting 

arrest.
2

defendant's conduct. See Kessler, supra at 772-773 & n.4. Open 

and gross lewdness is a "much more serious offense than . . . 

indecent exposure and consequently requires a substantially more 

serious and negative impact as a result of the behavior." Ora, 

supra at 127 (citation omitted), citing Kessler, supra at 774-

775. Detective Conway was the only known eyewitness to the 

defendant's exposing himself,3 and consequently, the 

Commonwealth's case depended on proof that the exposure caused 

the detective to experience a "serious negative emotional 

experience" above and beyond "mere nervousness [or] offense." 

Kessler, supra at 774. In my view, the Commonwealth did not 

come close to meeting its burden here.

As we recently held, the Commonwealth may put forward a 

police officer as the victim of an open and gross lewdness 

charge, and this does not raise the Commonwealth's burden of 

proof. Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 348 

(2012) (Pereira). However, relying on a police officer as the 

victim obviously also cannot lower the Commonwealth's burden; it 

still must prove that the officer personally was "alarmed" or 

"shocked" by a defendant's conduct. To be sure, Detective 

Conway stated that he "was disgusted" upon seeing the 

 

3 The Commonwealth presented no evidence that the women on 

the bench or any person other than Detective Conway in fact 

observed the defendant's exposure. Detective Conway himself was 

able to view the defendant's exposed penis only by running up 

the stairs to get to the opposite subway platform.
3

defendant's exposed penis, and the majority accurately points 

out that such language is similar to that used by witnesses in 

cases in which convictions for open and gross lewdness have been 

affirmed. See, e.g., Commonwealth v. Gray, 40 Mass. App. Ct. 

901, 901 (1996) (victim "disgusted" by sight of oral sex act in 

public bathroom). But, as the cases make clear, the specific 

language used by an eyewitness to alleged open and gross 

lewdness is not dispositive. See Pereira, supra at 347 

("Witnesses are not required to use any special words to express 

that they experienced a significant negative emotion"). Just as 

the absence of any particular language in a witness's 

description of his reaction is not necessarily fatal to the 

Commonwealth's case, so too the presence of any particular 

language is not necessarily sufficient.

Here, the detective himself went on to explain in detail 

the nature of his reaction. Immediately after noting that he 

"was disgusted," he elaborated that he "was concerned that the 

females that were sitting on the bench were being victimized by 

[the defendant's] behavior." Thus, his "disgust" was of a 

vicarious sort, born of his "concern" that others might be 

affected by the defendant's behavior. In this sense, Detective 

Conway used the term "disgusted" to mean something analogous to 

"offensive" under the indecent exposure statute. See 

Commonwealth v. Cahill, 446 Mass. 778, 781 (2006) ("Offensive 
4

acts are those that [are] . . . repugnant to the prevailing 

sense of what is decent or moral") (quotation omitted).

The rest of the detective's testimony reinforces that he 

personally was not "shocked" or "alarmed." He acknowledged that 

it was "common" for him to see exposed penises in such settings 

as public restrooms and locker rooms, and that he personally was 

not disgusted by seeing them. In addition, he hardly can claim 

surprise by the sight of the defendant's penis after the great 

lengths he went to in order to put himself in a position to see 

it.4 After the detective observed the defendant's exposed penis, 

he proceeded in a prompt but measured manner to effect the 

defendant's arrest. His moving in this manner is not evidence 

of his "shock" or "alarm" but, rather, is merely evidence that 

 

4 The fact that Detective Conway voluntarily placed himself 

in a position to observe the defendant's penis itself raises 

some doubt as to the validity of this prosecution. The Supreme 

Judicial Court has made clear that the open and gross lewdness 

"statute cannot be constitutionally applied to public displays 

of lewdness and nudity unless they are imposed upon an 

unsuspecting or unwilling audience." Ora, 451 Mass. at 126, 

citing Revere v. Aucella, 369 Mass. 138, 142-143 (1975), appeal 

dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 

(1976). Needless to say, an officer who views offensive conduct 

as part of his or her job is differently situated from a 

civilian who voluntarily views such conduct. However, the 

differences do not necessarily aid the Commonwealth. Cf. 

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

(evidence that officers were concerned with disruption caused by 

defendant's yelling by itself could not satisfy public element 

of disorderly conduct charge; "behavior that has an impact only 

upon members of the police force is significantly different from 

that affecting other citizens in [part because] it is an 

unfortunate but inherent part of a police officer's job to be in 

the presence of distraught individuals").
5

he effectively was doing his job. Contrast Commonwealth v. 

Gray, 40 Mass. App. Ct. at 901 (highlighting that citizen victim 

reacted "swiftly" by moving to stop the defendants and to 

contact the police). Simply put, a police officer's moving 

quickly to arrest someone that he observed exposing his genitals 

in public reveals nothing about the officer's emotional state.

Nothing in Pereira dictates an affirmance here. That case 

involved a public sex act (masturbation) rather than mere 

exposure, and the officer there testified that he was "angry" in 

addition to being somewhat "disgusted." Pereira, 82 Mass. App. 

Ct. at 345. Moreover, Pereira does not state that a police 

officer's "disgust" on behalf of others, without more, suffices 

to support a finding that the officer was "alarmed or shocked." 

Reading Pereira in this manner would render it inconsistent with 

Kessler. In addition, this would allow the Commonwealth to 

convert any ordinary indecent exposure case into one for open 

and gross lewdness anytime there was a police eyewitness who was 

willing to state that, out of concern for others, he or she was 

"disgusted" by the defendant's actions.

In sum, I believe there was insufficient evidence that the 

defendant's conduct here caused a "substantially more serious 

and negative impact" on the detective than that required to make 

out a case of indecent exposure. Ora, 451 Mass. at 127. I 

therefore would reverse the defendant's conviction of open and 
6

gross lewdness and remand for entry of a conviction on the 

lesser included crime of indecent exposure.