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18-P-342 Appeals Court

COMMONWEALTH vs. SCOTT E. FIELDING.

No. 18-P-342.

Dukes. November 13, 2018. - January 29, 2019.

Present: Milkey, Henry, & Englander, JJ.

Open and Gross Lewdness and Lascivious Behavior. 

Identification. Social Media. Evidence, Photograph, 

Authentication, Identification. Due Process of Law, 

Identification. Practice, Criminal, Identification of 

defendant in courtroom.

Complaint received and sworn to in the Edgartown Division 

of the District Court Department on May 16, 2016. 

The case was tried before J. Thomas Kirkman, J. 

Darla J. Mondou for the defendant.

Elizabeth M. Carey, Assistant District Attorney, for the 

Commonwealth.

MILKEY, J. A District Court jury convicted the defendant 

of open and gross lewdness based on testimony that he had 

masturbated in front of a woman (victim) in a health club sauna 

in Tisbury. The principal defense at trial was 
2

misidentification. On appeal, the defendant challenges the 

admission at trial of a photograph of a man that the victim 

identified as the perpetrator the day after the incident, as 

well as the victim's in-court identification of the defendant. 

Discerning no error, we affirm.

Background.1 1. The incident. On May 2, 2016, at 

approximately 6:00 P.M., the victim was swimming laps at the 

health club's pool. A man whom she had not before met appeared 

at the shallow end of the pool and began talking to her. The 

victim continued her workout but would pause to converse with 

him in between her laps. The man introduced himself to the 

victim as "Scott," and the two interacted in the pool for 

approximately fifteen minutes. 

After the victim completed her swimming, she and the man

she knew as "Scott" went into the hot tub, where they sat close 

to each other and chatted some more. They then each expressed 

 

1 Some of the evidentiary issues were resolved based on the 

defendant's motion to suppress, on which the judge held an 

evidentiary hearing. Given that what happened during the 

victim's reporting of the incident lay at the heart of the 

motion to suppress, the victim provided far more detail about 

that issue during the motion hearing than she did at trial. Her 

testimony about the events otherwise was consistent. The 

description of the victim's reporting of the incident is drawn 

from the oral findings that the judge made from the bench at the 

conclusion of the motion hearing, supplemented slightly by 

testimony at that hearing that the judge "explicitly or 

implicitly credited." Commonwealth v. Jones-Pannell, 472 Mass. 

429, 431 (2015), quoting Commonwealth v. Isaiah I., 448 Mass. 

334, 337 (2007), S.C., 450 Mass. 818 (2008).
3

an interest in going into the sauna. When the victim arrived at 

the sauna, "Scott" was already inside with the light off. The 

victim turned on the light and entered the sauna, and the two 

conversed some more, bringing their total interaction to about 

thirty minutes long. The victim testified that she was "[o]ne 

hundred percent certain" the person inside the sauna was the 

same man from the pool and hot tub. After chatting with "Scott" 

for several minutes, the victim heard a "scratching" sound from 

where he was sitting, and as she got up to leave the sauna, he 

asked her, "[D]o you want to look?" She turned and observed the 

man stroking his genitalia, which shocked and angered her. 

2. The reporting of the incident. The following day, the 

victim went to a sexual assault crisis center to report what had 

happened. She then reported it to the police. That same day, 

she returned to the health club for a yoga class, where she told 

her instructor that something had occurred the day before that 

might make it difficult to get through class. The yoga 

instructor convinced her to report whatever had happened to club 

personnel, and the victim did so after class. While the victim 

was relaying the incident to the receptionist, the yoga 

instructor came up to the victim and listened to her description 

of the man. According to the victim, the yoga instructor then 

interjected "that she thought she knew him because [a man of 

similar description] had approached her and her daughter." 
4

Then, on the club's computer, the yoga instructor located a 

photograph of the man she was thinking of on the social media 

Web site known as "Facebook." She showed that photograph to the 

victim, who identified the man depicted there as the one who 

first had approached her in the pool and later had masturbated 

in front of her in the sauna. 

3. The video surveillance evidence. Some areas of the 

building in which the health club was located were monitored by 

a video surveillance system.2 A still image from footage 

recorded on the evening of the incident, time stamped at 6:35 

P.M., showed someone apparently resembling the defendant exiting 

the health club.3 

 

2 The judge held a voir dire prior to trial with the club 

manager who maintained the video system, as well as the police 

officer who went to the club to review the surveillance footage. 

The purpose of the voir dire was to assess the defendant's 

argument that the Commonwealth could not authenticate the video 

still taken from the surveillance footage that it wanted to 

introduce at trial. We need not review the facts relevant to 

the authentication of the video still, because the defendant no 

longer presses that claim on appeal. 

3 A police witness testified at trial that when the 

defendant was arrested, he was wearing "very bright orange head 

phones" and carrying a black backpack. Photographs of these 

items were admitted without objection. In closing, the 

Commonwealth pointed to the still image from the video 

surveillance, which was entered as exhibit two at trial, and 

highlighted that the man in the photograph was "wearing the 

orange headphones with the black backpack." The Commonwealth 

noted that the jurors would be able to examine the still image 

during their deliberations and see that the man was wearing "the 

very two things [the defendant] was wearing when he was 
5

4. The photographic array.4 Nine months after the 

incident, the police showed the victim a photographic array, 

which consisted of five photographs they showed to her serially. 

She identified the photograph of the defendant as the person who 

had masturbated in front of her. 

5. Pretrial motions. Prior to trial, the defendant filed 

a motion to suppress the photograph that the yoga instructor had 

found on Facebook (Facebook photo), the photographic array, and 

any in-court identification. Following an evidentiary hearing, 

the judge made findings from the bench. Subsequently, he 

allowed the motion to suppress the photographic array on the 

grounds that it was done so long after the incident and did not 

comply with approved photographic array procedures in various 

respects. However, the judge denied the motion to suppress with 

respect to the Facebook photo and any in-court identification. 

Immediately prior to trial, the defendant moved in limine 

to exclude the Facebook photo on the ground that the 

Commonwealth could not authenticate it. The judge tabled a 

ruling on that motion until he had a chance to review the case 

 

apprehended by the police." 

4 As noted infra, the photographic array was suppressed and 

therefore was not admitted or referenced at trial. The facts 

about it are drawn from the findings the judge made at the 

motion to suppress hearing. The propriety of the order 

suppressing the photographic array is not before us.
6

law and hear the trial evidence. The defendant also moved --

again -- to preclude the victim from making an in-court 

identification. The judge announced that he was "going to deny 

[that] motion at this point based on [his] earlier ruling."5 

6. The use of the identification evidence at trial. 

During the trial, the Facebook photo -- scrubbed of any text or 

other potential indicator of its provenance -- and one of the 

surveillance stills were admitted over the defendant's 

objection. The victim testified that the Facebook photo was 

shown to her the day after the incident and that she at that 

time identified the person shown there as the perpetrator. The 

victim also was allowed to identify the defendant as the 

perpetrator in court, again over the defendant's objection. She 

testified that she was "[o]ne hundred percent certain" of that 

identification. After being given a jury instruction on 

identification that closely hued to the one set forth in 

Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015) (Appendix), 

the jury convicted the defendant. 

 

5 In addition, the defendant moved in limine to exclude any 

still photograph from the surveillance video because the 

Commonwealth would be unable to authenticate it, and because of 

the result of an alleged discovery violation. After holding a 

voir dire of two witnesses with regard to the surveillance 

still, the judge appeared to indicate that he was inclined to 

allow such an exhibit in evidence, and in any event, he did so 

at trial. On appeal, the defendant has not renewed his argument 

that the surveillance still was inadequately authenticated. 
7

Discussion. 1. The Facebook photo. The defendant argues 

that the judge abused his discretion in concluding that the 

Commonwealth had authenticated the Facebook photo adequately. 

We disagree. To establish authentication, the Commonwealth was 

required to show "that the item in question is what the 

proponent claims it to be." Commonwealth v. Purdy, 459 Mass. 

442, 447 (2011). See Mass. G. Evid. § 901(a) (2018). Notably, 

the Commonwealth offered the Facebook photo only as a photograph

that the yoga instructor had shown the victim, not as a 

photograph that had been displayed on the defendant's Facebook 

page. In addition, neither the victim nor any other witness 

identified the person shown in the Facebook photo as the 

defendant (leaving that issue instead to the jury). With the 

victim having testified that the Facebook photo was the one 

shown to her, nothing more was required to authenticate it.

The defendant also argues that the victim's being shown the 

Facebook photo by the yoga instructor was so suggestive an 

identification procedure that the judge erred in denying the 

motion to suppress it. The defendant points out that even 

though the victim's exposure to the Facebook photo involved no 

State action, the case law recognizes that it still could be 

excluded under common-law principles of fairness. See 

Commonwealth v. Jones, 423 Mass. 99, 109 (1996). As the Supreme 

Judicial Court recently clarified, appellate review in this 
8

context is limited to whether the judge abused his discretion in 

determining whether the probative value of the relevant evidence 

was substantially outweighed by unfair prejudice. Commonwealth

v. Johnson, 473 Mass. 594, 600-602 (2016).

Applying that standard of review, we have little trouble 

affirming the judge's decision. This is not a case where the 

eyewitness and the defendant had only fleeting contact. 

Although their total time of interaction was only approximately 

thirty minutes, the nature of their interaction provided the 

victim with a solid basis for focusing on, and remembering, the 

appearance of the person with whom she had been conversing oneon-one in the pool, hot tub, and sauna. Furthermore, the yoga 

instructor's presenting the Facebook photo as an individual with 

the same description who recently had approached her and her 

daughter was not particularly conducive to misidentification. 

Unlike a situation in which an eyewitness is presented with a 

showup of someone already taken into police custody, the yoga 

instructor's showing the victim the Facebook photo was not 

particularly suggestive. We are confident that the judge's 

decision to allow the victim to testify about her pretrial 

identification of the perpetrator in the Facebook photo did not 

constitute "'a clear error of judgment in weighing' the factors 

relevant to the decision such that the decision [fell] outside 

the range of reasonable alternatives" (citation omitted). L.L. 
9

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse 

of discretion standard).

2. The in-court identification. The defendant also argues 

that the judge erred in allowing the victim to identify him in 

court. The primary ground on which he presses this argument is 

that any in-court identification was unduly tainted by the yoga 

instructor's having shown the victim the Facebook photo.6 

However, for the reasons set forth above, we have rejected the 

defendant's claim that the victim's being shown the Facebook 

photo had to be excluded as unduly suggestive. In addition, it 

is uncontested that the victim looked at the Facebook photo only 

briefly because she "didn't want to keep looking at it." We are 

confident that the victim's in-court identification was not 

based on her passing exposure to the Facebook photo many months 

before.

Although the defendant's brief includes multiple citations 

to Commonwealth v. Crayton, 470 Mass. 228 (2014), it does not 

squarely rely on the key holding there that an eyewitness's incourt identification should be precluded unless there was "good 

 

6 The defendant contends, albeit in passing, that the 

surveillance still also should have been excluded because it was 

tainted by the victim's exposure to the Facebook photo. His 

theory seems to be that during their investigation, the police 

themselves identified the defendant in the surveillance still 

based on his resemblance to the Facebook photo. The defendant's 

argument that this investigative procedure somehow tainted the 

surveillance still lacks any merit.
10

reason" for the eyewitness not having participated in a pretrial 

identification procedure. Id. at 241-242.7 In any event, such 

an argument would be unavailing for two reasons. First, given 

that the victim here had such an extensive and intensive 

opportunity to observe the defendant, we view this as being a 

good reason to justify not having a pretrial identification. 

See id. at 242 ("there may be 'good reason' for the first 

identification procedure to be an in-court showup where the 

eyewitness was familiar with the defendant before the commission 

of the crime"). Second, the day after the incident, the victim 

did identify the person in the Facebook photo as the 

perpetrator, and the judge who heard the evidence taken at the 

motion to suppress hearing specifically found that the person 

shown in that photograph was the defendant. Thus, even if a 

pretrial identification had been required here before an incourt identification properly could be allowed, that requirement 

was satisfied.8

 

7 The court in Crayton, 470 Mass. at 243, stated that "the 

burden [is] on the prosecutor to move in limine to admit [an] 

in-court identification of the defendant by a witness where 

there has been no out-of-court identification." Here, the 

defendant himself moved to exclude an in-court identification, 

first through his motion to suppress and then through his motion 

in limine. On appeal, he raises no issue regarding which party 

moved first, and in any event, as explained below, we conclude 

that there was an out-of-court identification here.

8 We need not consider whether -- in assessing if Crayton

was satisfied -- we could take into account the victim's 
11

Judgment affirmed.

 

identification of the defendant in the photographic array 

procedure that was excluded at trial.