Commonwealth v. Goudy

COMMONWEALTH v. STEPHEN M. GOUDY.

No. 21-P-19

Appeals Court of Massachusetts

May 23, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0

The defendant was found guilty of open and gross lewdness, in violation of G. L. c. 272, § 16, indecent exposure, in violation of G. L. c. 272, § 53, and failing to stop for police, in violation of G. L. c. 90, § 25. He now brings this direct appeal.

Viewing the evidence in the light most favorable to the Commonwealth the jury could have found the following: On the evening of June 25, 2017, the defendant was walking in the area of Parker Elementary School in Quincy wearing only a long white T-shirt. The T-shirt hung down to "beneath his bottom." One witness described the defendant as waving or "swishing [the T-shirt] up and down a little bit," and testified that he "could see his genitals, his testicles, his penis." This occurred near a playground at the Parker Elementary School where children were pressed against the fence with their hands and faces and had their eyes on the defendant. The witness who saw the defendant's genitals was "disgusted mostly for the children." The waving or swishing of the T-shirt permitted the witness to confirm that indeed he had seen the defendant's genitals. The defendant entered his white pickup truck and drove away from the area erratically. One witness, who testified that the defendant appeared to be drunk, called the police. The police responded and began looking for the defendant and soon observed him operating his pickup truck nearby on Felton Street. An officer followed the defendant and observed him driving back to his original location, across the street from the playground. When the defendant observed the police officer, he pulled away from the curb and began driving away.

The officer activated his cruiser's lights to effectuate a motor vehicle stop and the defendant stopped in front of the nearby Atlantic Middle School. By now there were two police cruisers present. Officers John McGowen and David Levine exited their respective cruisers to approach the defendant, but as they were approaching, the defendant drove away.

The officers returned to their cruisers and pursued the defendant. He was stopped a block away when police positioned their cruisers to block his travel lane.

Both officers exited their cruisers, drew their weapons, and ordered the defendant to show his hands. The defendant responded by moving his hands in and out of the vehicle. With guns drawn, officers approached the defendant and ordered him out of the vehicle. He refused.

The officers then opened the driver's side door to remove him, and saw that he had removed his T-shirt and was completely naked. Officer McGowan testified that he saw all parts of the defendant, including his genitals, that he felt "shocked," and that he had never seen anything like it. Officer Levine testified that he, too, saw the defendant's genitals as well as his buttocks, "everything from head to toe." He also testified that he was "shocked" and "alarmed."

The jury were instructed that the open and gross lewdness charge arose from the defendant's conduct at the time of the police stop, and that the indecent exposure charge was based on the observations of the defendant by the civilian adult who observed the defendant's genitals while the defendant was walking by the elementary school.

Discussion.

Indecent exposure is a lesser included offense of open and gross lewdness. E.g. Commonwealth v. Waterman, 98 Mass.App.Ct. 651, 654-656 (2020). The defendant's first argument is that the defendant committed but a single crime through his conduct of being exposed -- from the moment at which he was first observed walking near the elementary school until the moment minutes later when the police pulled him from his truck -- albeit a single crime with several victims, including the civilian witness and the two police officers. The defendant contends that, because he committed a single crime, the convictions were duplicative. He raises this claim for the first time on appeal, so we review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Mamay, 407 Mass. 412, 418 (1990). But if there is "any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act," then we will find a substantial risk of a miscarriage of justice. Commonwealth v. Kelly, 470 Mass. 682, 701 (2015).

We disagree with the premise of the defendant's argument. The defendant argues that this was one continuous uninterrupted act, and therefore not "two distinct, conduct-based offenses." Commonwealth v. Botev, 79 Mass.App.Ct. 281, 289 (2011) . Although there is no bright line for determining when a crime like this is a single offense with more than one victim rather than more than one offense, "the appropriate inquiry in a case like this . . . asks what 'unit of prosecution' was intended by the Legislature as the punishable act. . . . The inquiry requires us to look to the language and purpose of the statute[], to see whether [it] speak[s] directly to the issue of the appropriate unit of prosecution . . . keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant's favor." Id. at 286 (quotation omitted). The relevant statutes here are concerned with "punishing the defendant for conduct offensive to society, as distinct from punishing the defendant for the effect of that conduct on particular victims." Id. at 287. Accordingly, the focus of our inquiry is the defendant's conduct and what factors divide such conduct into separable episodes, as opposed to the number of victims affected. Id. at 287-288.

We conclude that, based upon all the facts and circumstances here, the incident at the school and the incident of the defendant's removal from the truck, were sufficiently separate and distinct that they can support both convictions. Although the two events were close in time they were separated by some physical distance. This alone might not be enough to render them distinct acts -- one can imagine, for example, a completely unclothed person exposing himself on a street, and then getting into his car to drive home and we might not say it was a second offense when arresting officers saw him -- but in this case the defendant engaged in two further acts between the first and second events that rendered them distinct. First, he completely removed his T-shirt, which the jury could have found provided at least intermittent coverage of his genitals during the initial episode when he was seen by the civilian adult witness as well as two other testifying adult witnesses who did not see his genitals. The jury could have thus found that through that removal, the defendant engaged in a separate act of exposure. The defendant also fled from the police while two officers were approaching his vehicle on foot after the defendant had been stopped, creating a high likelihood that they would give chase, remove him from the vehicle, and see his exposed genitals.

Given all the facts and circumstances, then, we see no error in...