COMMONWEALTH v. TIRADO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a one-day trial in the District Court, a jury found the defendant, Jose C. Tirado, guilty of open and gross lewdness and lascivious behavior, in violation of G. L. c. 272, § 16. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty, which the judge denied. On the second offense portion of the complaint, the defendant waived his right to a jury, and following a bench trial, the judge found the defendant guilty. The defendant timely appealed. The defendant argues that his motion for a required finding of not guilty should have been allowed because there was insufficient evidence that he exposed his genitals to the victim. We affirm.

Discussion. On a claim of insufficiency of the evidence, we determine “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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

In order to convict a defendant of open and gross lewdness and lascivious behavior under G. L. c. 272, § 16, the Commonwealth must prove beyond a reasonable doubt 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” (quotation and citation omitted). Commonwealth v. Maguire, 476 Mass. 156, 158 (2017). Here, the defendant only disputes the sufficiency of the Commonwealth's evidence to establish the first element.

“Exposure is generally defined as an act of exposing, a condition or instance of being laid bare or exposed to view, or to lay open to view” (quotation and citation omitted). Commonwealth v. Coppinger, 86 Mass. App. Ct. 234, 237 (2014). The Commonwealth may demonstrate exposure through circumstantial evidence. See Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 303 n.3 (1999). “The inferences drawn from [circumstantial] evidence need only be reasonable and possible, not necessary or inescapable.” Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 402 (2018), quoting Commonwealth v. Morgan, 449 Mass. 343, 349 (2007). Moreover, the Commonwealth need not provide eyewitness testimony from one who saw the defendant's genitals, nor must the eyewitness provide a detailed description of the genitals. See Commonwealth v. St. Louis, 473 Mass. 350, 364 (2015) (evidence of exposure sufficient where witness could not remember appearance of defendant's genitals); Poillucci, 46 Mass. App. Ct. at 302 (witness's testimony that defendant “pull[ed] up and down on a skin-colored belt” sufficient to prove exposure). A defendant may still “expose” his genitals without being fully nude, as long as he is “displaying [his genitals] such that [they are] clearly visible.” Coppinger, supra at 238. See id. at 237 (defendant exposed himself by wearing sheer compression shorts that displayed his genitals, buttocks, and “flesh color of his skin”); Poillucci, supra (defendant exposed genitals by undoing pants, uncovering his abdomen, and “pulling up and down” on genitals). Contrast Commonwealth v. Arthur, 420 Mass. 535, 536-537 (1995) (no exposure where victims turned away after defendant “revealed his crotch area and pubic hair”).

Here, there was sufficient evidence that the defendant exposed his genitals to the victim. The victim testified that she pulled into the driveway of her home and saw the defendant standing in the first-floor window of the house next door, which was in the victim's line of sight, about five feet to her left, and had no blinds. She observed the defendant “in the shadows in the corner ․ playing with himself” and “saw a fist near his crotch going back and forth.” The victim “gasped and covered [her] mouth,” and the defendant appeared to respond by “stepp[ing] ․ directly in front of the window, for [the victim] to see him ․ with his hand still going.” She further testified that “he stepped in front of the window like he wanted me to see it.” At this point, the victim saw “the shadow of his genitals.” Asked how close the defendant was to the window, the victim answered, “He was right against it.”

The victim then entered her house and called the police. Shortly thereafter, the responding police officer spoke with the defendant while they stood outside in front of the subject window, and the officer relayed to the jury their ensuing conversation. The defendant asked the officer if he “could see in the house through that window.” The officer responded, “Yeah I can see inside.” Hearing that, the defendant quickly entered the house, shut off the inside light, and then rejoined the officer outside. He explained to the officer that “the light was off before,” and asked the officer to “[l]ook in there now.” The officer responded, “Sir, I can still see in your house. I can still see the TV. It's darker, but I can still see some things in your home.”

The jury could properly infer that the victim was able to see through the window the shadow of the defendant's genitals -- cast by the light in the room -- only because his genitals were “outside of his pants.” St. Louis, 473 Mass. at 364 (“Although [the victim] did testify that it was so dark out that she could not even see his ‘private parts,’ she also testified that his ‘private part’ was outside of his pants. Conflicting inferences that can be drawn from the evidence are for the jury to resolve”). The victim's testimony that she saw just “the shadow of his genitals” does not detract from the sufficiency of the evidence because the defendant's genital area remained “bare” and “exposed to view.” Coppinger, 86 Mass. App. Ct. at 237. Based on this evidence, the jury could have concluded that the defendant caused his genitals to be “la[id] open to view” by rubbing his crotch with his fist in front of an uncovered window in the victim's line of sight, and upon noticing the victim's reaction, pressed himself against the window. Id.

Thus, the jury could have found beyond a reasonable doubt that the defendant exposed his genitals to the victim, within the meaning of “open and gross lewdness and lascivious behavior” under G. L. c. 272, § 16. Accordingly, the judge properly denied the defendant's motion for a required finding of not guilty.

Judgment affirmed.