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19-P-576 Appeals Court

COMMONWEALTH vs. JAMES D. WATERMAN.

No. 19-P-576.

Plymouth. April 14, 2020. - October 19, 2020.

Present: Wolohojian, Maldonado, & Ditkoff, JJ.

Incest. Rape. Open and Gross Lewdness and Lascivious Behavior.

Indecent Exposure. Indecent Assault and Battery. Due 

Process of Law, Elements of criminal offense. Practice, 

Criminal, Lesser included offense, Required finding.

Evidence, Prior misconduct.

Indictments found and returned in the Superior Court 

Department on August 18, 2017.

The case was tried before Cornelius J. Moriarty, II, J.

The case was submitted on briefs.

Ethan C. Stiles for the defendant.

Timothy J. Cruz, District Attorney, & Audrey Anderson, 

Assistant District Attorney, for the Commonwealth.

DITKOFF, J. The defendant appeals from his convictions, 

after a Superior Court jury trial, of two counts of rape of a 

child, G. L. c. 265, § 23, two counts of incest, G. L. c. 272, 

§ 17, one count of indecent assault and battery on a child, 
2

G. L. c. 265, § 13B, and two counts of open and gross lewdness, 

G. L. c. 272, § 16. The Commonwealth concedes that there was 

insufficient evidence of open and gross lewdness and asks us to 

enter convictions on the lesser-included offenses of indecent 

exposure, G. L. c. 272, § 53. Concluding that indecent exposure 

is a lesser-included offense of open and gross lewdness, but 

that there was insufficient evidence of that offense as well, we 

reverse the convictions of open and gross lewdness and remand 

for the entry of required findings of not guilty. Further 

concluding that the defendant was not entitled to a lesserincluded offense instruction on the counts of rape of a child 

and that there was no prejudice to the defendant from the 

admission of prior bad act evidence, we affirm the other 

convictions.

1. Background. "Because the defendant challenges the 

sufficiency of the evidence, we recite the facts the jury could 

have found in the light most favorable to the Commonwealth." 

Commonwealth v. Salazar, 481 Mass. 105, 107 (2018). The 

defendant is the father of three girls. The defendant routinely 

woke up his eldest daughter by coming into her room completely 

naked. When the oldest daughter was eleven or twelve, she had a 

bandage on her upper right thigh. When the defendant was 

changing the bandage, "he had one hand on the bandage and stuck 
3

the other hand up [her] vagina." He "wiggled" his fingers 

around inside her.

While in elementary school, the middle daughter took 

gymnastics. Usually by the time the middle daughter returned 

from her gymnastics practices, everybody but the defendant and 

the middle daughter would be asleep. The defendant and the 

middle daughter routinely would massage each other's backs. The 

defendant "would put his hands further down [her] back, until 

his hands were . . . around . . . [her] vagina." He placed one 

hand "between [her] labia." His hand was "[m]ore on the 

inside." This happened so often that it became "routine," and 

the middle daughter came to think it was normal.

One time during these massage sessions, the defendant

flipped over so that the middle daughter's hand was on his 

penis. Her hand was on his penis for approximately forty-five 

seconds and then she felt something wet come from his penis.

Most mornings, the defendant masturbated in his bedroom 

with the door open, and the eldest and middle daughters observed 

his penis in his hand in a mirror.1 This happened both before 

and after the rape of the eldest daughter.

 

1 There is no reason in the testimony to believe that the 

daughters saw the same acts of masturbation. See Commonwealth

v. Botev, 79 Mass. App. Ct. 281, 288-289 (2011) (single act of 

exposure may support only one count of open and gross lewdness, 

no matter how many witnesses).
4

When the eldest daughter was in middle school, her best 

friend often came over to her house both before and after 

school. The eldest daughter's best friend saw the defendant in 

a state of undress three times. Once, he was standing by the 

washer and dryer and had an open towel. He said, "Oh, sorry." 

Another time, he was naked in his bedroom getting dressed and 

made eye contact with the friend. The third time, she walked 

into the living room while he was masturbating, and he made eye

contact with her.

The defendant was charged with nine crimes. He was charged 

with two counts each of rape of a child and incest, one relating 

to the eldest daughter, and one relating to the middle daughter. 

The jury convicted him of all four of these crimes. He was 

charged with two counts of indecent assault and battery on a 

child, both relating to the middle daughter. The jury convicted 

him of the count charging him with touching her vagina2 but 

acquitted him of the count charging him with making her touch 

his penis. He was charged with two counts of open and gross 

lewdness, one relating to each victim's seeing him masturbating. 

The jury convicted him of both counts. Finally, he was charged

with lewd and lascivious behavior, G. L. c. 272, § 53, relating 

 

2 The defendant makes no claim that this conviction is 

duplicative of the conviction for rape of a child. See 

Commonwealth v. Suero, 465 Mass. 215, 220 (2013).
5

to his exposing himself to the eldest daughter's best friend

while masturbating. The jury acquitted him of that charge. 

This appeal followed.

2. Lesser-included offense of open and gross lewdness. 

a. Sufficiency of the evidence of open and gross lewdness. The 

defendant argues, and the Commonwealth agrees, that there was 

insufficient evidence of open and gross lewdness. In addition 

to the four elements described infra, the fifth element of that 

crime is that the defendant's conduct "did, in fact, produce 

'alarm or shock' in one or more persons." Commonwealth v. 

Pereira, 82 Mass. App. Ct. 344, 346 (2012). "This requires 

evidence of strong negative emotions -- a subjective inquiry --

most commonly corroborated by an immediate physical response." 

Commonwealth v. Maguire, 476 Mass. 156, 159 (2017). See 

Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334 (2006) 

(nervousness and discomfort not enough).

The eldest daughter described the significant emotional 

damage that the rape caused her, but she was neither asked for 

nor described any reaction to observing the defendant's 

masturbation. Indeed, she merely got up and got ready for 

school. Similarly, the middle daughter testified that it was 

"upsetting" that the defendant had to move out, and that she 

"wish[ed] he hadn't done the things he's done, 'cause then I 

could have him in my life," but was neither asked for nor 
6

described any reaction to observing the defendant's 

masturbation. Having fulfilled our duty of independently 

determining whether there was error, we agree with the 

Commonwealth's concession that there was insufficient evidence 

of open and gross lewdness. See Commonwealth v. Tiernan, 96 

Mass. App. Ct. 588, 589 n.2 (2019).

The Commonwealth asks us to enter convictions on these 

counts for indecent exposure. When there is insufficient 

evidence to support a conviction, but there is sufficient 

evidence of a lesser-included offense of the crime of 

conviction, we vacate the conviction and "remand for entry of a 

conviction of the lesser included offense and for resentencing." 

Commonwealth v. Sudler, 94 Mass. App. Ct. 150, 156 (2018). 

Accord Commonwealth v. Garrett, 473 Mass. 257, 266-267 (2015). 

Accordingly, we determine first whether indecent exposure is a 

lesser-included offense of open and gross lewdness and second 

whether there is sufficient evidence of indecent exposure.

b. Comparison of open and gross lewdness to indecent 

exposure. "[A] lesser included offense is one whose elements 

are a subset of the elements of the charged offense." 

Commonwealth v. Labadie, 467 Mass. 81, 86, cert. denied, 574 

U.S. 902 (2014), quoting Commonwealth v. Porro, 458 Mass. 526, 

531 (2010). "The test is whether, '[i]n order to convict [of 

the greater offense], all the elements of [the lesser offense] 
7

must be found, plus an additional aggravating factor.'" 

Commonwealth v. Kelly, 470 Mass. 682, 703 (2015), quoting

Commonwealth v. Schuchardt, 408 Mass. 347, 351 (1990).

The elements of open and gross lewdness are "[1] That the 

defendant exposed his [or her genitals, buttocks, or female 

breasts] to one or more persons; [2] That the defendant did so 

intentionally; [3] That the defendant did so 'openly'[3] . . . ; 

[4] That the defendant's act was done in such a way as would 

alarm or shock a reasonable person; and [5] That at least one 

person was alarmed or shocked." Instruction 7.400 of the 

Criminal Model Jury Instructions for Use in the District Court 

(May 2017). Accord Commonwealth v. Taranovsky, 93 Mass. App. 

Ct. 399, 400 n.1 (2018). According to the model instruction, 

the elements of indecent exposure are "[1] That the defendant 

exposed his [or her genitals] to one or more persons; [2] That 

the defendant did so intentionally; and [3] That one or more 

persons were offended by the defendant's thus exposing himself

[or herself]." Instruction 7.340 of the Criminal Model Jury 

 

3 Openly does not require a public place, but rather that 

"the actor in the given circumstances was being recklessly 

indifferent to a substantial chance that others would observe 

the act and might be offended by the sight." Commonwealth v. 

Guy G., 53 Mass. App. Ct. 271, 275 (2001). Contrast 

Commonwealth v. Catlin, 1 Mass. 8, 9-10 (1804) (not open where 

defendant was in room with closed shutters and closed door and 

witness observed him committing adultery through broken pane of 

glass).
8

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

Commonwealth v. Kennedy, 478 Mass. 804, 811-812 (2018). The 

Supreme Judicial Court has not yet determined whether there is a 

fourth element to indecent exposure, that the exposure would 

offend a reasonable person. Cf. Maguire, 476 Mass. at 159 (for 

open and gross lewdness, declaring that, "[i]n future cases, 

. . . it will be incumbent on the Commonwealth to demonstrate 

not only subjective 'shock' or 'alarm' on the part of a victim, 

but also that the victim's reaction was objectively 

reasonable").4 A mechanical comparison of the elements of the 

two crimes yields the following:

Open and gross lewdness Indecent exposure

exposure of genitalia, 

buttocks, or female breasts

exposure of genitalia

intentional intentional

openly

done in a manner that would 

shock or alarm a reasonable 

person

(would offend a reasonable 

person)5

at least one person was 

shocked or alarmed

at least one person was 

offended

 

4 As with open and gross lewdness, such an element would 

serve to prevent a defendant from being found guilty where a 

person is offended but the exposure was not objectively 

offensive. See Maguire, 476 Mass. at 161 ("A person's 

particular reaction -- or the particular words used to 

characterize his or her emotional response -- to the misconduct 

will not suffice to support a conviction under § 16 if the 

reaction is not one that a fact finder finds reasonable").
9

See Kennedy, supra; Taranovsky, supra.

At first blush, this comparison suggests that indecent 

exposure is not a lesser-included offense of open and gross 

lewdness, because of the mismatch in the first and fifth 

elements. Closer examination reveals that this mismatch is 

illusory.

Concerning the fifth element, it is important to understand 

that shock or alarm for open and gross lewdness means an 

offensive shock or alarm. For example, if a patient exposed his 

genitalia to a doctor to reveal an advanced cancerous growth, 

the doctor very well may be alarmed. But that sort of 

nonoffensive alarm is not the kind of shock or alarm that open 

and gross lewdness involves. See, e.g., Pereira, 82 Mass. App. 

Ct. at 346-348 (witness angry and disgusted by defendant 

masturbating in car); Commonwealth v. Melo, 95 Mass. App. Ct. 

257, 258-260 (2019) (witnesses shocked and frantic when 

defendant pulled down pants and danced in donut shop parking 

lot, exposing his buttocks). Cf. Commonwealth v. Ora, 451 Mass. 

125, 128 (2008) ("the central purpose of G. L. c. 272, § 16

[open and gross lewdness], [is] one of preventing fright and 

intimidation"). Once this is understood, it is evident that the 

shock or alarm necessary for open and gross lewdness is simply a 

 

5 As mentioned supra, the Supreme Judicial Court has not yet 

determined whether this is an element of indecent exposure.
10

more pronounced form of the offense required to show indecent 

exposure. Thus, shock or alarm for purposes of open and gross 

lewdness is a subset of offense. See Ora, supra at 127 (open 

and gross lewdness "requires a substantially more serious and 

negative impact" than indecent exposure).6

Concerning the first element, the crime of open and gross 

lewdness historically required the exposure of genitalia, just 

like the crime of indecent exposure. See Commonwealth v. Quinn, 

439 Mass. 492, 497 (2003). Accord Commonwealth v. Arthur, 420 

Mass. 535, 541 (1995) ("Cases of conduct . . . brought pursuant 

to the provisions of G. L. c. 272, § 16, invariably have 

involved exposure of the genitalia"). In 2003, however, the 

Supreme Judicial Court expanded the crime of open and gross 

lewdness to include also the exposure of buttocks or female 

breasts, prospectively only. Quinn, supra at 501.

It is well-settled that, where a crime may be committed 

under different theories with different elements, another crime 

may be a lesser-included offense of it under one theory, but not 

others. See Commonwealth v. Thompson, 89 Mass. App. Ct. 456, 

463-464 (2016). Accord Commonwealth v. Roderiques, 462 Mass. 

415, 421 (2012). Thus, where (as here) the crime of open and 

 

6 The same logic applies to the possible fourth element. 

Objectively reasonable shock and alarm is a subset of 

objectively reasonable offensiveness.
11

gross lewdness is prosecuted with the element of exposure of 

genitalia, indecent exposure is a lesser-included offense. See 

Maguire, 476 Mass. at 162. In the case in which it is 

prosecuted instead with the element of exposure of buttocks or 

female breasts, indecent exposure is not a lesser-included 

offense.

c. Sufficiency of the evidence of indecent exposure. In 

this case, the sufficiency issue turns on the element of the 

defendant's conduct having given offense to at least one person. 

It is not correct to instruct a jury, as the trial judge did 

here, that the lesser-included offense of indecent exposure is 

proven if the Commonwealth proves the first three elements of 

open and gross lewdness but fails to prove the fourth (done in 

such a way as to shock or alarm a reasonable person) or fifth 

(at least one person was shocked or alarmed) elements. Rather, 

the Commonwealth must still prove that at least one person was 

offended by the exposure (and, possibly, that the exposure was 

objectively offensive). See Commonwealth v. St. Louis, 473 

Mass. 350, 364 (2015).

Offense for purposes of indecent exposure means 

"displeasure, anger or resentment." Kennedy, 478 Mass. at 812, 

quoting St. Louis, 473 Mass. at 364. See Commonwealth v. Swan, 

73 Mass. App. Ct. 258, 262 (2008) (testimony that victim "felt 

embarrassed and threatened" enough to show offense). It is
12

considerably easier to prove offense than it is to prove the 

kind of offensive shock or alarm required for open and gross 

lewdness. See Commonwealth v. Kessler, 442 Mass. 770, 774 

(2004) ("That the exposure be 'offensive to one or more persons' 

is an element required for indecent exposure, . . . but an open 

and gross lewdness charge requires more"). It may be proved 

circumstantially. See St. Louis, supra at 365 (although victim 

did not testify she was offended, sufficient evidence of offense 

where victim said no and expressed "her desire to detach herself 

from the situation"). It must, however, be proved to establish 

the crime of indecent exposure.

Here, the Commonwealth failed to elicit any reaction 

whatsoever on the parts of the daughters to the defendant's 

masturbation. The eldest daughter described the emotional 

damage she suffered as resulting from "having my dad touch me," 

but described no reaction to witnessing the masturbation. The 

middle daughter similarly described no reaction to witnessing 

the masturbation. The evidence was further devoid of any 

circumstantial evidence that would allow a jury to find that 

either daughter was offended by the defendant's masturbation. 

Accordingly, the Commonwealth failed to establish that either 

daughter was offended. For this reason, the Commonwealth failed 

to produce sufficient evidence of the crime of indecent 

exposure.
13

3. Lesser-included offense of rape of a child. It is 

well-settled that indecent assault and battery on a child is a 

lesser-included offense of rape of a child. See Commonwealth v. 

Suero, 465 Mass. 215, 219-220 (2013); Commonwealth v. Prado, 94 

Mass. App. Ct. 253, 260 (2018). The question, then, is whether 

the trial judge here properly declined the defendant's request 

that he instruct the jury on this lesser-included offense.

"A lesser included offense instruction should be given 

where 'the evidence at trial presents "a rational basis for 

acquitting the defendant of the crime charged and convicting him 

of the lesser included offense."'" Commonwealth v. Rios, 96 

Mass. App. Ct. 463, 476 (2019), quoting Commonwealth v. Donlan, 

436 Mass. 329, 335 (2002). "In making this determination, we 

draw all reasonable inferences from the evidence in favor" of 

the defense. Commonwealth v. Dyous, 436 Mass. 719, 731 (2002). 

Nonetheless, "even when evidence is introduced that would 

justify conviction for a lesser included offense, the defendant 

is not entitled to an instruction thereupon unless the proof on 

the 'elements differentiating the two crimes is sufficiently in 

dispute so that the jury may consistently find the defendant 

innocent of the greater and guilty of the lesser included 

offense.'" Donlan, supra, quoting Commonwealth v. Souza, 428 

Mass. 478, 494 (1998).
14

The eldest daughter testified that the defendant "had one 

hand on the bandage and stuck the other hand up [her] vagina," 

and "wiggled" his fingers around inside her. Thus, the only 

sexual contact described was penetrative. See Commonwealth v. 

Olmande, 84 Mass. App. Ct. 231, 239 (2013).

The middle daughter testified that the defendant placed one 

hand "between [her] labia." Her description that his hand was 

"[m]ore on the inside" might well create some ambiguity whether 

he fully entered her vagina. The Commonwealth, however, had no 

duty to prove that the defendant's fingers entered the victim's 

vagina. "Intrusion into the vagina itself is not required to 

make out the wrongful penetration. Touching by the male of the 

vulva or labia . . . is intrusion enough." Donlan, 436 Mass. at

336, quoting Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 

204-205 (1987), overruled on other grounds, Commonwealth v. 

Pagan, 445 Mass. 161, 170 (2005). There was, therefore, no 

version of the sexual assault in evidence that did not include 

touching of the labia. See Olmande, 84 Mass. App. Ct. at 239.

To be sure, the jury had the right to disbelieve any 

portion of the evidence, and could have selectively disbelieved 

portions of the victims' testimony of penetration. "[T]he mere 

possibility that the jury might not credit a portion of the 

Commonwealth's evidence," however, is not enough to entitle the 
15

defendant to an instruction on a lesser-included offense. 

Donlan, 436 Mass. at 337.

4. Prior bad act evidence. The victims' grandmother 

described an incident when the eldest daughter was six years 

old. The grandmother was staying with the entire family in a 

one-room cottage on a vacation in New Hampshire. In the 

morning, she observed the defendant's semi-erect penis 

protruding from the blankets of his bed. She testified that she 

"wasn't sure if it was an intentional act."

"Evidence of prior bad acts is generally inadmissible to 

show a defendant's propensity to commit a crime." Commonwealth

v. Don, 483 Mass. 697, 713 (2019). Nonetheless, "[s]uch 

evidence may be admitted 'to show a common scheme or course of 

conduct, a pattern of operation, absence of accident or mistake, 

intent, or motive.'" Commonwealth v. Beaulieu, 90 Mass. App. 

Ct. 773, 780 (2016), quoting Commonwealth v. Julien, 59 Mass. 

App. Ct. 679, 686 (2003). "[E]ven if the evidence is relevant 

to one of these other purposes, the evidence will not be 

admitted if its probative value is outweighed by the risk of 

unfair prejudice to the defendant." Commonwealth v. Bryant, 482 

Mass. 731, 734 (2019). "These matters are 'entrusted to the 

trial judge's broad discretion and are not disturbed absent 

palpable error.'" Commonwealth v. Childs, 94 Mass. App. Ct. 67, 
16

71 (2018), quoting Commonwealth v. Keown, 478 Mass. 232, 242 

(2017), cert. denied, 138 S. Ct. 1038 (2018).

Here, the defense to the lewd and lascivious behavior 

charge was that the defendant's exposures to the best friend

were accidental. For that reason, had the grandmother's 

testimony truly sketched out a prior bad act, it might have been 

admissible to show an absence of accident or mistake as to that 

charge. See Commonwealth v. Mazariego, 474 Mass. 42, 56 (2016); 

Childs, 94 Mass. App. Ct. at 73. As it was, the grandmother 

described something that even she thought could be an accident, 

and thus was entirely consistent with the defense. The 

prosecutor ignored this evidence altogether in her closing 

argument. Accordingly, even if there was error, it was not 

prejudicial "due to the 'scant attention' given to the evidence 

at trial" Don, 483 Mass. at 715, quoting Commonwealth v. McGee, 

467 Mass. 141, 158 (2014).

5. Conclusion. On the two indictments charging the 

defendant with open and gross lewdness, the judgments are 

reversed, the verdicts are set aside, and judgments shall enter 

for the defendant. On the indictments charging the defendant 

with rape of a child, incest, and indecent assault and battery 

on a child, the verdicts are affirmed, the sentences are 
17

vacated, and the case is remanded to the Superior Court for 

resentencing.7

So ordered.

 

7 Given that judgments are to enter for the defendant with 

regard to the open and gross lewdness charges, we remand the 

case to afford the judge the opportunity to restructure his 

sentence as to the remaining judgments. See Commonwealth v. 

Talbot, 444 Mass. 586, 597-598 (2005); Commonwealth v. Kruah, 47 

Mass. App. Ct. 341, 348 (1999).