Commonwealth v. Rogerio S. Thomaz Dos Reis.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1280

COMMONWEALTH

vs.

ROGERIO S. THOMAZ DOS REIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Rogerio S. Thomaz Dos Reis, appeals from his

conviction, after a jury trial in the District Court, of open

and gross lewdness, G. L. c. 272, § 16. Concluding that there

was sufficient evidence to establish that a correction officer

was "alarmed or shocked" by the defendant's exposure, we affirm.

1. Standard of review. "When reviewing the denial of a

motion for a required finding of not guilty, 'we consider the

evidence introduced at trial in the light most favorable to the

Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.'" Commonwealth v. Oliver, 102 Mass. App. Ct.

609, 611 (2023), quoting Commonwealth v. Quinones, 95 Mass. App.

Ct. 156, 162 (2019). "[T]he evidence relied on to establish a

defendant's guilt may be entirely circumstantial," Commonwealth
v. Linton, 456 Mass. 534, 544 (2010), S.C., 483 Mass. 227

(2019), and "[t]he inferences that support a conviction 'need

only be reasonable and possible; [they] need not be necessary or

inescapable.'" Commonwealth v. Wheeler, 102 Mass. App. Ct. 411,

413 (2023), quoting Commonwealth v. Ross, 92 Mass. App. Ct. 377,

378 (2017).

2. Sufficiency of the evidence. A conviction of open and

gross lewdness 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). Accord Commonwealth v. Quinn, 439 Mass.

492, 499 (2003). The defendant challenges only the

Commonwealth's proof of the fifth element.

Here, the Commonwealth presented sufficient evidence for a

reasonable trier of fact to find that the correction officer was

shocked or alarmed by the defendant's conduct. The correction

officer testified that the defendant, fully nude, stroked his

penis while making eye contact with the officer. "Where an

'observer suffered significant negative emotions as a result of

the exposure,' the observer's reaction 'could justifiably be

deemed alarm or shock,' as required to convict a defendant of

open and gross lewdness." Commonwealth v. Pereira, 82 Mass.

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App. Ct. 344, 347 (2012), quoting Commonwealth v. Kessler, 442

Mass. 770, 775 (2004). The officer testified that she was

"disgusted once [she] realized what was occurring," "because I'm

not an object of his desire, not there for that." The officer

herself was disgusted; this was not a case where she expressed

"[v]icarious concern for other people." Commonwealth v.

Maguire, 476 Mass. 156, 160 (2017).

The defendant argues that, considering that the officer had

been working in a men's prison for nearly five years, her

testimony "lacked any credibility," but "it is for the jury to

determine where the truth lies, for the weight and credibility

of the evidence is wholly within their province." Commonwealth

v. Malone, 100 Mass. App. Ct. 399, 404 (2021), quoting

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.

215 (2007) and 460 Mass. 12 (2011). Moreover, "[a]n important

factor in determining whether a witness experienced alarm or

shock is whether the witness immediately reported the incident."

Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334 (2006).

Once the officer realized what was happening, she immediately

notified her direct supervisor. Viewing the evidence in the

light most favorable to the Commonwealth, the jury could

reasonably find that the officer was alarmed or shocked by the

defendant's exposure. Cf. Commonwealth v. Gray, 40 Mass. App.

Ct. 901, 901 (1996) (janitor's statement that he was "disgusted"

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by defendant's act of fellatio, together with swift reporting of

incident to police, enough for jury to find alarm or shock).

Judgment affirmed.

By the Court (Ditkoff,
Englander & Smyth, JJ.1),

Clerk

Entered: August 6, 2024.

1 The panelists are listed in order of seniority.

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