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14-P-1086 (Mass. App. Ct. Nov. 4, 2015)




NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).


After a jury-waived trial, the defendant was convicted of open and gross lewdness in violation of G. L. c. 272, § 16. On appeal, he claims there was insufficient evidence to support his conviction, the judge improperly permitted the victim to testify to the defendant's statements, and that the judge improperly admitted evidence of the victim's prior encounters with the defendant. We affirm.

1. Sufficient evidence. The defendant claims there was insufficient evidence to support the fifth element of G. L. c. 272, § 16, i.e., that one or more persons were in fact alarmed or shocked by the defendant's exposing himself. See Commonwealth v. Quinn, 439 Mass. 492, 501 (2003). We disagree. In the light most favorable to the Commonwealth, upon seeing the defendant masturbating in the stairwell of the MBTA station, the victim screamed; she testified that she was "disgusted" by the defendant's lewd act. The victim immediately called the police, and assisted the police in their attempt to locate the defendant. This was sufficient to establish that element. See Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 345-347 (2012).

2. The defendant's statements. The defendant also claims the judge erred in permitting the victim to testify that the defendant, upon being identified by the victim, stated: "Oh, bitch, you're going to get me arrested, I'm going to fucking kill you." The defendant objected and moved to strike, but did not state the grounds for the objection. The judge overruled the objection, and explained that it was a statement of the defendant. On appeal, the defendant claims the statements should not have been admitted because their probative value was outweighed by their prejudicial effect. Even if this were preserved, there was no error.

Aside from not being hearsay, these statements were probative of the defendant's consciousness of guilt. See Commonwealth v. Fernandes, 427 Mass. 90, 94 (1998). While evidence of a threat is prejudicial to the defendant, in the circumstances of this case, it was not unfairly prejudicial especially against the backdrop of a jury-waived trial. See Commonwealth v. Montanez, 439 Mass. 441, 450 (2003).

3. Prior encounters. Finally, the defendant claims it was improper for the victim to testify that she was familiar with the defendant because of his improper behavior in the past. Some examples of his past behavior included the defendant's being "drunk," "out of control," and "a nuisance on the train," and that he "screams and yells." Although there was no objection to the victim's testimony, the judge carefully had the prosecutor limit this evidence to the victim's past encounters with the defendant without details of the past incidents. This evidence properly put into context the victim's eventual identification of the defendant a few days after the incident in question. Again, this was a jury-waived trial, and we can presume the judge did not consider the evidence for any improper purpose. See Commonwealth v. Green, 52 Mass. App. Ct. 98, 103 (2001). There was no error, and thus no risk that justice miscarried.

The defendant moved in limine to have this evidence excluded, but failed to object at trial. See Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998).

Judgment affirmed.

By the Court (Cohen, Meade & Agnes, JJ.),

The panelists are listed in order of seniority. --------


Entered: November 4, 2015.