Commonwealth v. Waterman

Citation98 Mass.App.Ct. 651,158 N.E.3d 867
Decision Date19 October 2020
Docket NumberNo. 19-P-576,19-P-576
Parties COMMONWEALTH v. James D. WATERMAN.
CourtAppeals Court of Massachusetts

The case was submitted on briefs.

Ethan C. Stiles, Pembroke, for the defendant.

Timothy J. Cruz, District Attorney, & Audrey Anderson, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Maldonado, & Ditkoff, JJ.

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, 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 lesser-included 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, 112 N.E.3d 781 (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 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.

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 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, 973 N.E.2d 679 (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, 65 N.E.3d 1160 (2017). See Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334, 848 N.E.2d 406 (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 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, 137 N.E.3d 426 (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, 112 N.E.3d 828 (2018). Accord Commonwealth v. Garrett, 473 Mass. 257, 266-267, 41 N.E.3d 28 (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, 3 N.E.3d 1093, cert. denied, 574 U.S. 902, 135 S.Ct. 257, 190 L.Ed.2d 191 (2014), quoting Commonwealth v. Porro, 458 Mass. 526, 531, 939 N.E.2d 1157 (2010). "The test is whether, [i]n order to convict [of the greater offense], all the elements of [the lesser offense] must be found, plus an additional aggravating factor.’ " Commonwealth v. Kelly, 470 Mass. 682, 703, 25 N.E.3d 288 (2015), quoting Commonwealth v. Schuchardt, 408 Mass. 347, 351, 557 N.E.2d 1380 (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, 105 N.E.3d 266 (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 Instructions for Use in the District Court (2009). Accord Commonwealth v. Kennedy, 478 Mass. 804, 811-812, 90 N.E.3d 722 (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, 65 N.E.3d 1160 (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,       exposure of genitalia
                  buttocks, or female
                  breasts
                  intentional                  intentional
                  openly
                  done in a manner that        (would offend a reasonable
                  would shock or alarm a       person)5
                  reasonable person
                  at least one person was      at least one person was
                  shocked or alarmed           offended
                

[Editor's Note: The preceding image contains the reference for footnote5 ].

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...

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