COMMONWEALTH v. CIRINO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant, Hector Cirino, was found guilty of open and gross lewd behavior.¹ See G. L. c. 272, § 16. On appeal, he contends that the evidence was insufficient to prove that the victim suffered a strong negative reaction, as required for a conviction of open and gross lewdness. We affirm.

Discussion. On a claim of insufficiency of the evidence, we review the record in the light most favorable to the Commonwealth. Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 400-401 (2018), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). A conviction for open and gross lewdness and lascivious behavior requires proof “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. Maguire, 476 Mass. 156, 158 (2017), quoting Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008).

The defendant claims that the evidence is insufficient to establish the fifth element, which “requires the Commonwealth to demonstrate that at least one person in fact was alarmed or shocked by the defendant's exposure” (quotations omitted). Maguire, 476 Mass. at 159. See Taranovsky, 93 Mass. App. Ct. at 402-403 (distinguishing between fourth and fifth elements). Evidence of a “serious negative emotional experience” is required to warrant a finding that a victim was “in fact alarmed or shocked.” Commonwealth v. Kessler, 442 Mass. 770, 774 (2004). “Mere nervousness and offense” is not sufficient. Id.

The incident took place in the group kitchen of a home run by a nearby shelter. The defendant made lewd remarks, demanded sex for several minutes, and groped the victim's thigh. She batted his hand away, but he persisted. He then unzipped his pants, took out his penis, and told her to “suck him off.” The victim testified that she felt “very nervous” and “very disgusted.” She tried to physically block her view of the defendant's body with her hand. The victim left the kitchen, returning only to check on her food; the defendant continued to follow her and talk to her. Once she retrieved her food she returned to her room and called the police.

When Officer Mark Williams arrived at the scene, the victim “seemed uneasy. Her voice was cracking. And she seemed under some duress.” He also saw that she was “shaking.” Following the incident, she suffered a panic attack and had great difficulty falling asleep.

This evidence was sufficient to support a finding that the victim did in fact suffer both shock and alarm. See Taranovsky, 93 Mass. App. Ct. at 403 (sufficient evidence where victim testified that she experienced “a little shock”). See also Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 347-348 (2012) (sufficient evidence where observer testified that he was “angry” and “a little bit disgusted”). The jury were permitted to assess the victim's alarm in the context of the immediately preceding assault. See Commonwealth v. Melo, 95 Mass. App. Ct. 257, 260 (2019) (“shock or alarm is properly assessed in the context of the defendant's immediately preceding sexual assault against her”). In addition, the jury could properly consider the “other indicia of the witness's emotional state” such as her effort to block her view of the defendant's body, the officer's description of her appearance, and her subsequent panic attack. Pereira, supra at 347.

The defendant contends that the victim's reaction did not rise to the level of “shock” or “alarm” because she returned to the shared kitchen where the incident occurred to collect her meal. There is no litmus test for a response to a shocking event. See Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 272-273 (2001) (student was shocked and alarmed by indecent exposure that occurred when she returned to cubicle where defendant had previously put his hand on her thigh and asked her to “play[ ] with his dick”). Here, the victim reported the event as soon as she got her meal and returned to her room. See Taranovsky, 93 Mass. App. Ct. at 403, quoting Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334 (2006) (“One such indicium is ‘whether the witness immediately reported the incident’ ”). Whether the victim was in fact shocked and alarmed was for the finder of fact. See Taranovsky, supra at 403; Guy G., supra.

Judgments affirmed.

FOOTNOTES

1.   The jury also returned a verdict of not guilty on the charge of indecent assault and battery, but a verdict of guilty on the lesser included offense of assault and battery. Although the defendant's notice of appeal encompasses this conviction, his brief makes no argument with respect to it. We therefore affirm the conviction without further discussion.