COMMONWEALTH v. DUROT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the Central Division of the Boston Municipal Court, the defendant, Jonathan A. Durot, was convicted of open and gross lewdness.² He appeals claiming that the evidence of shock and alarm was insufficient. We affirm.

“Because the defendant challenges the sufficiency of the evidence presented, we summarize the facts the [judge] could have found in the light most favorable to the Commonwealth.” Commonwealth v. Tavares, 471 Mass. 430, 431 (2015). On May 1, 2018, the victim was sitting outside of her apartment with some neighbors when the defendant approached the group asking whether they knew “another guy.” Later that afternoon, while in the same location, the victim saw the defendant “ringing everyone's doorbells.” Because her school-aged children were home, the victim decided to approach the defendant to ask him to stop ringing the doorbells. The defendant left but continued to ring doorbells.

Later that evening the victim's doorbell rang. She came out of her apartment and saw the defendant. She told him that she would call the police if he continued to ring doorbells. A neighbor joined the victim outside. The defendant was undeterred; he rang the doorbell again. The defendant told the duo that he knew where they lived and would do something to them if they called the police. As he spoke, the defendant unzipped his pants, exposed his penis, and “swung it at [the victim and her neighbor], just waving it” at them. The victim was scared. She went inside and “automatically called the police right away.” Upon their arrival, the police noted that the victim “seemed upset, bothered a little bit.” The police were unable to locate the defendant that night.

The next morning, the defendant returned to the victim's apartment building and once again, rang doorbells. When the victim saw the defendant, she “automatically ran back in the house ․ and [she] called the police.” The police responded but did not locate the defendant. Later that day, the victim saw the defendant down the street from her apartment building. She called the police a third time. At last the police were able to locate and arrest the defendant.

We review claims of insufficient evidence to determine “whether, after viewing the evidence in the light most favorable to the [Commonwealth], 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), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). In order to sustain a conviction for open and gross lewdness, the Commonwealth must prove, beyond a reasonable doubt, “that the defendant (1) exposed [his] genitals ․; (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, 260-621 (2008). It is the last element that the defendant challenges.

At oral argument, the defendant argued that the victim's reaction was not causally linked to the defendant's exposure. In his brief, the defendant claims that the quantum of the victim's reaction did not meet the requisite shock and alarm. Indeed, the defendant suggests that it was the threat to do something to the victim, a mother of young children that explains her reaction.

The central purpose of the open and gross lewdness statute is to “prevent[ ] fright and intimidation, particularly regarding children.” Commonwealth v. Ora, 451 Mass. 125, 128 (2008). While it is true that the victim testified that she was “scared” when the defendant said he knew where she lived and was going to do something if she called the police, context matters. “ ‘[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.” Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 403 (2018), quoting Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 347 (2012). “One such indicium is ‘whether the witness immediately reported the incident.’ ” Taranovsky, supra, quoting Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334 (2006).

Here, the victim was dogged in her efforts to help the police locate the defendant, calling them when the incident occurred and multiple times thereafter; three times over the course of two days. See Militello, 66 Mass. App. Ct. at 334 (sufficient evidence where witness immediately reported incident). See also Taranovsky, 93 Mass. App. Ct. at 403 (victim “flagged down [State trooper]”). The responding police officer described the victim as “upset, bothered a little bit” immediately after the defendant exposed himself. See Pereira, 82 Mass. App. Ct. at 347-348 (sufficient evidence where observer testified that he was “angry” and “a little bit disgusted”). Moreover, on cross-examination, the victim responded “yes” when she was asked if the incident was traumatic for her. See Commonwealth v. Kessler, 442 Mass. 770, 775 (2004) (victim must experience “significant negative emotions as a result of the exposure ․ [such that] his or her reaction could justifiably be deemed alarm or shock”).

While the victim testified that she was scared by the defendant's threats to do something to her if she called the police, that does not preclude an additional conclusion that the evidence, considered in its totality and in the light most favorable to the Commonwealth, was also sufficient to prove the victim was shocked and alarmed by the defendant's exposure. And, to the extent the defendant argues that the victim's testimony was subject to conflicting interpretations, it is in the province of the judge, as fact finder, to resolve any such discrepancy. See Commonwealth v. Lopez, 484 Mass. 211, 215 (2020).

Judgment affirmed.

FOOTNOTES

2.   The defendant was found not guilty of accosting and annoying another person, disorderly conduct, and threatening to commit a crime.