We often get questions relating to what the difference is between Open and Gross behavior and Lewd and Lacivious behavior. Recently in COMMONWEALTH vs. RAYMOND L. BLACKMER, III 77 Mass. App. Ct. 474 (2010) they discussed the differences and standards of proof.
In Blackmer the court stated “In reviewing the denial of a motion for a required finding, we must determine ‘whether the evidence, in its light most favorable to the Commonwealth . . . is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged [beyond a reasonable doubt] . . . .’ ” Commonwealth v. Townsend, 453 Mass. 413 , 427 (2009), quoting from Commonwealth v. Latimore, 378 Mass. 671 , 676-677 (1979).
a. General Laws c. 272, § 16: open and gross lewdness and lascivious behavior. The language of G. L. c. 272, § 16, does not define “open and gross lewdness and lascivious behavior.” However, “decisional law requires proof of five elements to support a conviction, i.e., 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. Swan, 73 Mass. App. Ct. 258 , 260-261 (2008), quoting from Commonwealth v. Kessler, 442 Mass. 770 , 773 & n.4 (2004). See Commonwealth v. Ora, 451 Mass. 125 , 127 (2008).
In this case, the judge denied the defendant’s motion for a required finding of not guilty, and instructed the jury that the first element that the Commonwealth was required to prove in establishing a violation of § 16 was that “Mr. Blackmer engaged in lewd and lascivious behavior. What is meant by lewd and lascivious behavior is conduct which involves touching of the buttocks or genitals, for the purposes of sexual arousal, gratification, or offense; or conduct which involves exposing one’s genitals or buttocks to one or more persons” (emphasis added). The jury instruction thus added to the established definition an additional theory of guilt, one where the defendant touches his genitals or buttocks “for the purposes of sexual arousal, gratification, or offense.”
The Commonwealth argues that the instruction was appropriate in light of the language in Commonwealth v. Quinn, 439 Mass. 492 , 495 (2003), stating that “exposure of genitalia is not an essential element of the crime of open and gross lewdness.” In Quinn, the court held that exposure of the buttocks, combined with the other elements listed above, was sufficient to sustain a conviction for open and gross lewdness, ibid., and certain language in Quinn appears to leave open the question whether unexposed masturbation may also be punished under § 16. See Commonwealth v. Quinn, 439 Mass. at 501 n.15. In addition, the Quinn court’s citation to State v. Maunsell, 170 Vt. 543, 547 (1999), could also suggest that unexposed masturbation would constitute open and gross lewdness in Massachusetts. Commonwealth v. Quinn, 439 Mass. at 497 & n.10, 501 n.15.
Nevertheless, all of the other case law on the issue, including, as the defendant notes, cases decided subsequent to Quinn, indicates the necessity of exposure by the defendant of some body part to sustain a conviction under § 16. See Commonwealth v. Adams, 389 Mass. 265 , 271 (1983) (defendant convicted of open and gross lewdness for driving down a public way, masturbating with penis exposed); Commonwealth v. Quinn, 439 Mass. at 498 (“A woman approaching a group of school children suddenly opening her blouse to expose her breasts may alarm or shock just as a man masturbating in a passing automobile might”); Commonwealth v. Kessler, 442 Mass. 770 , 772-773 & n.4 (2004) (utilizing Instruction 5.42 of the Model Jury Instructions for Use in the District Court ); Commonwealth v. Ora, 451 Mass. at 126 (“conviction under the statute requires the display of nudity to be intentional, done in a manner to produce alarm or shock, and actually producing alarm or shock”); Commonwealth v. Swan, 73 Mass. App. Ct. at 261.
Despite the Commonwealth’s contention, Commonwealth v. Perretti, 20 Mass. App. Ct. 36 (1985), is not to the contrary. In Perretti, we held that there was probable cause to arrest the defendant for open and gross lewdness where “he was standing at a rear, uncurtained, apartment window, at an early morning hour, with his trousers open, wearing no underwear, and his hands at his groin.” Id. at 41. In the first place, those facts permit an inference that the defendant was intentionally exposing his genitals at the time of his arrest. Second, the issue in Perretti, supra, was whether those facts were sufficient to provide probable cause for arrest for the offense, not whether they were sufficient to sustain a conviction under § 16.
Finally, the Commonwealth argues that the defendant’s public, unexposed masturbation, which shocked and alarmed the victim, was punishable conduct under § 16 in light of the legislative goal of G. L. c. 272 to create a “comprehensive and integrated approach” to the related offenses set out in its provisions. Commonwealth v. Sefranka, 382 Mass. 108 , 116 (1980). In fact, however, the opinion in Sefranka makes it clear that the statute prohibiting the behavior that the Commonwealth was able to prove here, was the “lewd, wanton and lascivious persons” provision of G. L. c. 272, § 53. As construed in Sefranka, that provision prohibits “the commission of conduct in a public place . . . when the conduct committed . . . involves the touching of the genitals, buttocks, or female breasts, for purposes of sexual arousal, gratification, or offense, by a person who knows or should know of the presence of a person or persons who may be offended by the conduct.” Commonwealth v. Sefranka, 382 Mass. at 117-118. Thus, unlike in § 16, exposure of the relevant anatomy is not required under § 53.
The defendant’s motion for a required finding of not guilty on the charge of open and gross lewdness and lascivious behavior under § 16 should have been allowed. His conviction on the charge of lewd, wanton, and lascivious behavior under § 53 is clearly supported by the evidence, see Commonwealth v. Nebel, 59 Mass. App. Ct. 316 , 318-319 (2003), and he does not contend otherwise, except as described below.
b. Identity. The defendant also argues that the judge erred in denying his motion for a required finding of not guilty based on the Commonwealth’s failure to prove that the man in the green van on February 15, seen masturbating by the first victim, was the defendant who had committed — and pleaded guilty to — the act alleged to have occurred on February 20.
Conclusion. We reiterate the requirement that, in order to sustain its burden of proof for a conviction under G. L. c. 272, § 16, the prosecution must establish, in addition to the other elements enumerated in Quinn and described above, that “the defendant exposed his or her genitals, buttocks, or breasts to one or more persons.” Commonwealth v. Quinn, 439 Mass. at 501. See Commonwealth v. Ora, 451 Mass. at 127. As a result, regarding so much of the indictment that charges this defendant with open and gross lewdness and lascivious behavior on February 15, 2007, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. On the indictment charging the defendant with being a lewd, wanton, and lascivious person in behavior under G. L. c. 272, § 53, the judgment is affirmed.”
Attorney Ronald A. Sellon