Commonwealth v. Taranovsky, 17–P–400

• Decision Date: 18 June 2018
• Docket Number: No. 17–P–400,17–P–400
• Citation: 105 N.E.3d 266,93 Mass.App.Ct. 399
• Parties: COMMONWEALTH v. Dmytro TARANOVSKY.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 399
105 N.E.3d 266

COMMONWEALTH
v.
Dmytro TARANOVSKY.

No. 17–P–400

Appeals Court of Massachusetts, Suffolk..

Argued December 7, 2017
Decided June 18, 2018

Christopher DeMayo for the defendant.

Dara Z. Kesselheim, Assistant District Attorney, for the Commonwealth.

Present: Agnes, Blake, & McDonough, JJ.

AGNES, J.

93 Mass.App.Ct. 400

As pertinent here, the statute punishing "open and gross lewdness and lascivious behavior," G. L. c. 272, § 16, has remained unchanged for more than 230 years. See Commonwealth v. Quinn, 439 Mass. 492, 495 & n.7, 789 N.E.2d 138 (2003), citing St. 1784, c. 40, § 3. However, during that time, the definition of the crime has "evolved through our decisional law." Commonwealth v. Maguire, 476 Mass. 156, 158, 65 N.E.3d 1160 (2017). The Maguire decision represents the most recent "judicial construction" of the statute. Id. at 161, 65 N.E.3d 1160, quoting from Commonwealth v. Ora, 451 Mass. 125, 128, 883 N.E.2d 1217 (2008). In Maguire, the court announced

105 N.E.3d 269

that one of the five elements of the offense (element four) requires the Commonwealth to prove an "objective component," namely, that the defendant's conduct not only caused one or more persons to be shocked or alarmed, but in addition, "that ‘shock’ or ‘alarm’ was an objectively reasonable reaction in the circumstances of the conduct." Maguire, supra at 161, 65 N.E.3d 1160.¹ This requirement does not appear in any previously reported Massachusetts appellate decision. Not surprisingly, the jury in this case were not instructed in accordance with Maguire, which was decided approximately three months after the conclusion of the defendant's trial. We conclude that the absence of such an instruction created a substantial risk of a miscarriage of justice, and accordingly reverse the defendant's conviction of open and gross lewdness.

Background. Taking the evidence in the light most favorable to the

93 Mass.App.Ct. 401

Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), the jury could have found the following facts.

On August 9, 2015, a twenty-seven year old female witness, N.M., was out for a boat ride on the Charles River with her father and some friends. The boat was tied up in front of the Hatch Shell on the Esplanade, which is owned by the Department of Conservation and Recreation, patrolled by the State police, and open to the public. N.M. noticed two children, between the ages of five and seven, who were riding scooters. They stopped suddenly and turned their heads toward something. When she followed their gaze to see what had caught their attention, she saw an individual, later identified as the defendant, walking in a "casual strut" down the walkway on the Esplanade. He walked the way models walk down the runway, to "let everybody see the outfit." The defendant was wearing a black sock-like object over his genitals, held in place by three strings in the shape of a "T." N.M. described it as a "banana hammock." The defendant's buttocks were exposed and he was otherwise completely naked.

When N.M. saw the defendant, she felt "shocked" and "just a little disgusted." She explained that she "wouldn't expose that to anybody," and further described what she had seen as "just a little unnerving." She testified that her reaction was based, in part, on the fact that there were children in the area who also saw the defendant. She took a photograph of the defendant, which was admitted in evidence. N.M. then decided to flag down a State police trooper passing by to report what she had seen. As the trooper, David Twomey, approached the defendant, he quickly turned away and put on his pants. The defendant

105 N.E.3d 270

appeared nervous, as "his eyebrows were twitching and he was stuttering." He told Twomey that he was sunbathing. Twomey subsequently placed the defendant under arrest.

Discussion. 1. Sufficiency of the evidence. The defendant argues on appeal that the Commonwealth's evidence was not sufficient to prove that his behavior was objectively and subjectively shocking or alarming as required by Maguire.²

Initially, we must determine whether the interpretation of the open and gross

93 Mass.App.Ct. 402

lewdness statute announced in Maguire is applicable to the case before us. "Where a decision does not announce new common-law rules or rights but rather construes a statute, no analysis of retroactive or prospective effect is required because at issue is the meaning of the statute since its enactment." McIntire, petitioner, 458 Mass. 257, 261, 936 N.E.2d 424 (2010). See id. at 262 n.7, 936 N.E.2d 424. Maguire is applicable in the instant case because the court, through the process of judicial construction, explained that the open and gross lewdness statute contains an objective component.

The question for us thus becomes "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Latimore, 378 Mass. at 677, 393 N.E.2d 370. "The inferences drawn from [the] evidence need only be reasonable and possible, not necessary or inescapable." Commonwealth v. Morgan, 449 Mass. 343, 349, 868 N.E.2d 99 (2007) (quotation omitted). See Commonwealth v. Bush, 427 Mass. 26, 30, 691 N.E.2d 218 (1998).

a. Objective component of "shock" or "alarm." The fourth element of the crime of open and gross lewdness, as defined anew in Maguire, requires the Commonwealth to "demonstrate that ‘shock’ or ‘alarm’ was an objectively reasonable reaction in the circumstances of the conduct." Maguire, 476 Mass. at 161, 65 N.E.3d 1160. Whether a person's reaction is reasonable based on the circumstances is typically a question to be determined by the fact finder. See ibid. See also Trenz v. Norwell, 68 Mass. App. Ct. 271, 275, 861 N.E.2d 777 (2007) ("Reasonableness is a question of fact for the [fact finder] whose decision is based on consideration of all the relevant circumstances" [quotation omitted] ).

Although we regard this as a close question, reasonable minds could differ as to whether N.M.'s reaction to the defendant's deliberate exposure of his buttocks in a public area was objectively reasonable.³

105 N.E.3d 271

Thus, the Commonwealth should have the opportunity

93 Mass.App.Ct. 403

to present its case to a properly instructed jury, at a new trial.

b. Subjective component of "shock" or "alarm." The fifth element of proof requires the Commonwealth to demonstrate that at least one person was in fact shocked or alarmed by the defendant's exposure. See Quinn, 439 Mass. at 501, 789 N.E.2d 138 ; Commonwealth v. Botev, 79 Mass. App. Ct. 281, 287–288, 945 N.E.2d 956 (2011). "Where 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." Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 347, 973 N.E.2d 679 (2012), quoting from Commonwealth v. Kessler, 442 Mass. 770, 775, 817 N.E.2d 711 (2004). "[T]he fact finder may consider not only the words used by the witness, but also other indicia of the witness's emotional state" in determining whether the observer suffered significant negative emotions as a result of the defendant's actions. Pereira, supra. One such indicium is "whether the witness immediately reported the incident." Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334, 848 N.E.2d 406 (2006).

Here, N.M. testified that she was "shocked" and "just a little disgusted" by the defendant's exposure. She found it "[a] little nerve racking" both because she had never seen anything similar before and because there were children around. Indeed, she took a photograph of what she had seen and flagged down Twomey. While N.M. testified that her reaction was based in part on her concern over the impact of the defendant's behavior on the children who were on the Esplanade, she also testified that she experienced "a little shock[ ]" herself. For this reason, there was sufficient evidence to permit the jury to find that the Commonwealth had proved the fifth element of the offense.

2. Testimony and closing argument. The defendant contends that it was error to allow N.M. to testify as to her observations of the children on the Esplanade. Because the defendant did not object to this testimony, we review to determine if there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Renderos, 440 Mass. 422, 425, 799 N.E.2d 97 (2003). Although "[v]icarious concern for other people," without more, is not sufficient to demonstrate an individual's shock or

93 Mass.App.Ct. 404

alarm, see Maguire, 476 Mass. at 160, 65 N.E.3d 1160, the Commonwealth had the right to present N.M.'s account of the...