Commonwealth v. Waterman

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19-P-576 Appeals Court

COMMONWEALTH vs. JAMES D. WATERMAN.

No. 19-P-576.

Plymouth. April 14, 2020. - October 19, 2020.

Present: Wolohojian, Maldonado, & Ditkoff, JJ.

Incest. Rape. Open and Gross Lewdness and Lascivious Behavior.
Indecent Exposure. Indecent Assault and Battery. Due
Process of Law, Elements of criminal offense. Practice,
Criminal, Lesser included offense, Required finding.
Evidence, Prior misconduct.

Indictments found and returned in the Superior Court
Department on August 18, 2017.

The case was tried before Cornelius J. Moriarty, II, J.

The case was submitted on briefs.
Ethan C. Stiles for the defendant.
Timothy J. Cruz, District Attorney, & Audrey Anderson,
Assistant District Attorney, for the Commonwealth.

DITKOFF, J. The defendant appeals from his convictions,

after a Superior Court jury trial, of two counts of rape of a

child, G. L. c. 265, § 23, two counts of incest, G. L. c. 272,

§ 17, one count of indecent assault and battery on a child,
2

G. L. c. 265, § 13B, and two counts of open and gross lewdness,

G. L. c. 272, § 16. The Commonwealth concedes that there was

insufficient evidence of open and gross lewdness and asks us to

enter convictions on the lesser-included offenses of indecent

exposure, G. L. c. 272, § 53. Concluding that indecent exposure

is a lesser-included offense of open and gross lewdness, but

that there was insufficient evidence of that offense as well, we

reverse the convictions of open and gross lewdness and remand

for the entry of required findings of not guilty. Further

concluding that the defendant was not entitled to a lesser-

included offense instruction on the counts of rape of a child

and that there was no prejudice to the defendant from the

admission of prior bad act evidence, we affirm the other

convictions.

1. Background. "Because the defendant challenges the

sufficiency of the evidence, we recite the facts the jury could

have found in the light most favorable to the Commonwealth."

Commonwealth v. Salazar, 481 Mass. 105, 107 (2018). The

defendant is the father of three girls. The defendant routinely

woke up his eldest daughter by coming into her room completely

naked. When the oldest daughter was eleven or twelve, she had a

bandage on her upper right thigh. When the defendant was

changing the bandage, "he had one hand on the bandage and stuck
3

the other hand up [her] vagina." He "wiggled" his fingers

around inside her.

While in elementary school, the middle daughter took

gymnastics. Usually by the time the middle daughter returned

from her gymnastics practices, everybody but the defendant and

the middle daughter would be asleep. The defendant and the

middle daughter routinely would massage each other's backs. The

defendant "would put his hands further down [her] back, until

his hands were . . . around . . . [her] vagina." He placed one

hand "between [her] labia." His hand was "[m]ore on the

inside." This happened so often that it became "routine," and

the middle daughter came to think it was normal.

One time during these massage sessions, the defendant

flipped over so that the middle daughter's hand was on his

penis. Her hand was on his penis for approximately forty-five

seconds and then she felt something wet come from his penis.

Most mornings, the defendant masturbated in his bedroom

with the door open, and the eldest and middle daughters observed

his penis in his hand in a mirror.1 This happened both before

and after the rape of the eldest daughter.

1 There is no reason in the testimony to believe that the
daughters saw the same acts of masturbation. See Commonwealth
v. Botev, 79 Mass. App. Ct. 281, 288-289 (2011) (single act of
exposure may support only one count of open and gross lewdness,
no matter how many witnesses).
4

When the eldest daughter was in middle school, her best

friend often came over to her house both before and after

school. The eldest daughter's best friend saw the defendant in

a state of undress three times. Once, he was standing by the

washer and dryer and had an open towel. He said, "Oh, sorry."

Another time, he was naked in his bedroom getting dressed and

made eye contact with the friend. The third time, she walked

into the living room while he was masturbating, and he made eye

contact with her.

The defendant was charged with nine crimes. He was charged

with two counts each of rape of a child and incest, one relating

to the eldest daughter, and one relating to the middle daughter.

The jury convicted him of all four of these crimes. He was

charged with two counts of indecent assault and battery on a

child, both relating to the middle daughter. The jury convicted

him of the count charging him with touching her vagina2 but

acquitted him of the count charging him with making her touch

his penis. He was charged with two counts of open and gross

lewdness, one relating to each victim's seeing him masturbating.

The jury convicted him of both counts. Finally, he was charged

with lewd and lascivious behavior, G. L. c. 272, § 53, relating

2 The defendant makes no claim that this conviction is
duplicative of the conviction for rape of a child. See
Commonwealth v. Suero, 465 Mass. 215, 220 (2013).
5

to his exposing himself to the eldest daughter's best friend

while masturbating. The jury acquitted him of that charge.

This appeal followed.

2. Lesser-included offense of open and gross lewdness.

a. Sufficiency of the evidence of open and gross lewdness. The

defendant argues, and the Commonwealth agrees, that there was

insufficient evidence of open and gross lewdness. In addition

to the four elements described infra, the fifth element of that

crime is that the defendant's conduct "did, in fact, produce

'alarm or shock' in one or more persons." Commonwealth v.

Pereira, 82 Mass. App. Ct. 344, 346 (2012). "This requires

evidence of strong negative emotions -- a subjective inquiry --

most commonly corroborated by an immediate physical response."

Commonwealth v. Maguire, 476 Mass. 156, 159 (2017). See

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

(nervousness and discomfort not enough).

The eldest daughter described the significant emotional

damage that the rape caused her, but she was neither asked for

nor described any reaction to observing the defendant's

masturbation. Indeed, she merely got up and got ready for

school. Similarly, the middle daughter testified that it was

"upsetting" that the defendant had to move out, and that she

"wish[ed] he hadn't done the things he's done, 'cause then I

could have him in my life," but was neither asked for nor
6

described any reaction to observing the defendant's

masturbation. Having fulfilled our duty of independently

determining whether there was error, we agree with the

Commonwealth's concession that there was insufficient evidence

of open and gross lewdness. See Commonwealth v. Tiernan, 96

Mass. App. Ct. 588, 589 n.2 (2019).

The Commonwealth asks us to enter convictions on these

counts for indecent exposure. When there is insufficient

evidence to support a conviction, but there is sufficient

evidence of a lesser-included offense of the crime of

conviction, we vacate the conviction and "remand for entry of a

conviction of the lesser included offense and for resentencing."

Commonwealth v. Sudler, 94 Mass. App. Ct. 150, 156 (2018).

Accord Commonwealth v. Garrett, 473 Mass. 257, 266-267 (2015).

Accordingly, we determine first whether indecent exposure is a

lesser-included offense of open and gross lewdness and second

whether there is sufficient evidence of indecent exposure.

b. Comparison of open and gross lewdness to indecent

exposure. "[A] lesser included offense is one whose elements

are a subset of the elements of the charged offense."

Commonwealth v. Labadie, 467 Mass. 81, 86, cert. denied, 574

U.S. 902 (2014), quoting Commonwealth v. Porro, 458 Mass. 526,

531 (2010). "The test is whether, '[i]n order to convict [of

the greater offense], all the elements of [the lesser offense]
7

must be found, plus an additional aggravating factor.'"

Commonwealth v. Kelly, 470 Mass. 682, 703 (2015), quoting

Commonwealth v. Schuchardt, 408 Mass. 347, 351 (1990).

The elements of open and gross lewdness are "[1] That the

defendant exposed his [or her genitals, buttocks, or female

breasts] to one or more persons; [2] That the defendant did so

intentionally; [3] That the defendant did so 'openly'[3] . . . ;

[4] That the defendant's act was done in such a way as would

alarm or shock a reasonable person; and [5] That at least one

person was alarmed or shocked." Instruction 7.400 of the

Criminal Model Jury Instructions for Use in the District Court

(May 2017). Accord Commonwealth v. Taranovsky, 93 Mass. App.

Ct. 399, 400 n.1 (2018). According to the model instruction,

the elements of indecent exposure are "[1] That the defendant

exposed his [or her genitals] to one or more persons; [2] That

the defendant did so intentionally; and [3] That one or more

persons were offended by the defendant's thus exposing himself

[or herself]." Instruction 7.340 of the Criminal Model Jury

3 Openly does not require a public place, but rather that
"the actor in the given circumstances was being recklessly
indifferent to a substantial chance that others would observe
the act and might be offended by the sight." Commonwealth v.
Guy G., 53 Mass. App. Ct. 271, 275 (2001). Contrast
Commonwealth v. Catlin, 1 Mass. 8, 9-10 (1804) (not open where
defendant was in room with closed shutters and closed door and
witness observed him committing adultery through broken pane of
glass).
8

Instructions for Use in the District Court (2009). Accord

Commonwealth v. Kennedy, 478 Mass. 804, 811-812 (2018). The

Supreme Judicial Court has not yet determined whether there is a

fourth element to indecent exposure, that the exposure would

offend a reasonable person. Cf. Maguire, 476 Mass. at 159 (for

open and gross lewdness, declaring that, "[i]n future cases,

. . . it will be incumbent on the Commonwealth to demonstrate

not only subjective 'shock' or 'alarm' on the part of a victim,

but also that the victim's reaction was objectively

reasonable").4 A mechanical comparison of the elements of the

two crimes yields the following:

Open and gross lewdness Indecent exposure
exposure of genitalia, exposure of genitalia
buttocks, or female breasts
intentional intentional
openly
done in a manner that would (would offend a reasonable
shock or alarm a reasonable person)5
person
at least one person was at least one person was
shocked or alarmed offended

4 As with open and gross lewdness, such an element would
serve to prevent a defendant from being found guilty where a
person is offended but the exposure was not objectively
offensive. See Maguire, 476 Mass. at 161 ("A person's
particular reaction -- or the particular words used to
characterize his or her emotional response -- to the misconduct
will not suffice to support a conviction under § 16 if the
reaction is not one that a fact finder finds reasonable").
9

See Kennedy, supra; Taranovsky, supra.

At first blush, this comparison suggests that indecent

exposure is not a lesser-included offense of open and gross

lewdness, because of the mismatch in the first and fifth

elements. Closer examination reveals that this mismatch is

illusory.

Concerning the fifth element, it is important to understand

that shock or alarm for open and gross lewdness means an

offensive shock or alarm. For example, if a patient exposed his

genitalia to a doctor to reveal an advanced cancerous growth,

the doctor very well may be alarmed. But that sort of

nonoffensive alarm is not the kind of shock or alarm that open

and gross lewdness involves. See, e.g., Pereira, 82 Mass. App.

Ct. at 346-348 (witness angry and disgusted by defendant

masturbating in car); Commonwealth v. Melo, 95 Mass. App. Ct.

257, 258-260 (2019) (witnesses shocked and frantic when

defendant pulled down pants and danced in donut shop parking

lot, exposing his buttocks). Cf. Commonwealth v. Ora, 451 Mass.

125, 128 (2008) ("the central purpose of G. L. c. 272, § 16

[open and gross lewdness], [is] one of preventing fright and

intimidation"). Once this is understood, it is evident that the

shock or alarm necessary for open and gross lewdness is simply a

5 As mentioned supra, the Supreme Judicial Court has not yet
determined whether this is an element of indecent exposure.
10

more pronounced form of the offense required to show indecent

exposure. Thus, shock or alarm for purposes of open and gross

lewdness is a subset of offense. See Ora, supra at 127 (open

and gross lewdness "requires a substantially more serious and

negative impact" than indecent exposure).6

Concerning the first element, the crime of open and gross

lewdness historically required the exposure of genitalia, just

like the crime of indecent exposure. See Commonwealth v. Quinn,

439 Mass. 492, 497 (2003). Accord Commonwealth v. Arthur, 420

Mass. 535, 541 (1995) ("Cases of conduct . . . brought pursuant

to the provisions of G. L. c. 272, § 16, invariably have

involved exposure of the genitalia"). In 2003, however, the

Supreme Judicial Court expanded the crime of open and gross

lewdness to include also the exposure of buttocks or female

breasts, prospectively only. Quinn, supra at 501.

It is well-settled that, where a crime may be committed

under different theories with different elements, another crime

may be a lesser-included offense of it under one theory, but not

others. See Commonwealth v. Thompson, 89 Mass. App. Ct. 456,

463-464 (2016). Accord Commonwealth v. Roderiques, 462 Mass.

415, 421 (2012). Thus, where (as here) the crime of open and

6 The same logic applies to the possible fourth element.
Objectively reasonable shock and alarm is a subset of
objectively reasonable offensiveness.
11

gross lewdness is prosecuted with the element of exposure of

genitalia, indecent exposure is a lesser-included offense. See

Maguire, 476 Mass. at 162. In the case in which it is

prosecuted instead with the element of exposure of buttocks or

female breasts, indecent exposure is not a lesser-included

offense.

c. Sufficiency of the evidence of indecent exposure. In

this case, the sufficiency issue turns on the element of the

defendant's conduct having given offense to at least one person.

It is not correct to instruct a jury, as the trial judge did

here, that the lesser-included offense of indecent exposure is

proven if the Commonwealth proves the first three elements of

open and gross lewdness but fails to prove the fourth (done in

such a way as to shock or alarm a reasonable person) or fifth

(at least one person was shocked or alarmed) elements. Rather,

the Commonwealth must still prove that at least one person was

offended by the exposure (and, possibly, that the exposure was

objectively offensive). See Commonwealth v. St. Louis, 473

Mass. 350, 364 (2015).

Offense for purposes of indecent exposure means

"displeasure, anger or resentment." Kennedy, 478 Mass. at 812,

quoting St. Louis, 473 Mass. at 364. See Commonwealth v. Swan,

73 Mass. App. Ct. 258, 262 (2008) (testimony that victim "felt

embarrassed and threatened" enough to show offense). It is
12

considerably easier to prove offense than it is to prove the

kind of offensive shock or alarm required for open and gross

lewdness. See Commonwealth v. Kessler, 442 Mass. 770, 774

(2004) ("That the exposure be 'offensive to one or more persons'

is an element required for indecent exposure, . . . but an open

and gross lewdness charge requires more"). It may be proved

circumstantially. See St. Louis, supra at 365 (although victim

did not testify she was offended, sufficient evidence of offense

where victim said no and expressed "her desire to detach herself

from the situation"). It must, however, be proved to establish

the crime of indecent exposure.

Here, the Commonwealth failed to elicit any reaction

whatsoever on the parts of the daughters to the defendant's

masturbation. The eldest daughter described the emotional

damage she suffered as resulting from "having my dad touch me,"

but described no reaction to witnessing the masturbation. The

middle daughter similarly described no reaction to witnessing

the masturbation. The evidence was further devoid of any

circumstantial evidence that would allow a jury to find that

either daughter was offended by the defendant's masturbation.

Accordingly, the Commonwealth failed to establish that either

daughter was offended. For this reason, the Commonwealth failed

to produce sufficient evidence of the crime of indecent

exposure.
13

3. Lesser-included offense of rape of a child. It is

well-settled that indecent assault and battery on a child is a

lesser-included offense of rape of a child. See Commonwealth v.

Suero, 465 Mass. 215, 219-220 (2013); Commonwealth v. Prado, 94

Mass. App. Ct. 253, 260 (2018). The question, then, is whether

the trial judge here properly declined the defendant's request

that he instruct the jury on this lesser-included offense.

"A lesser included offense instruction should be given

where 'the evidence at trial presents "a rational basis for

acquitting the defendant of the crime charged and convicting him

of the lesser included offense."'" Commonwealth v. Rios, 96

Mass. App. Ct. 463, 476 (2019), quoting Commonwealth v. Donlan,

436 Mass. 329, 335 (2002). "In making this determination, we

draw all reasonable inferences from the evidence in favor" of

the defense. Commonwealth v. Dyous, 436 Mass. 719, 731 (2002).

Nonetheless, "even when evidence is introduced that would

justify conviction for a lesser included offense, the defendant

is not entitled to an instruction thereupon unless the proof on

the 'elements differentiating the two crimes is sufficiently in

dispute so that the jury may consistently find the defendant

innocent of the greater and guilty of the lesser included

offense.'" Donlan, supra, quoting Commonwealth v. Souza, 428

Mass. 478, 494 (1998).
14

The eldest daughter testified that the defendant "had one

hand on the bandage and stuck the other hand up [her] vagina,"

and "wiggled" his fingers around inside her. Thus, the only

sexual contact described was penetrative. See Commonwealth v.

Olmande, 84 Mass. App. Ct. 231, 239 (2013).

The middle daughter testified that the defendant placed one

hand "between [her] labia." Her description that his hand was

"[m]ore on the inside" might well create some ambiguity whether

he fully entered her vagina. The Commonwealth, however, had no

duty to prove that the defendant's fingers entered the victim's

vagina. "Intrusion into the vagina itself is not required to

make out the wrongful penetration. Touching by the male of the

vulva or labia . . . is intrusion enough." Donlan, 436 Mass. at

336, quoting Commonwealth v. Baldwin, 24 Mass. App. Ct. 200,

204-205 (1987), overruled on other grounds, Commonwealth v.

Pagan, 445 Mass. 161, 170 (2005). There was, therefore, no

version of the sexual assault in evidence that did not include

touching of the labia. See Olmande, 84 Mass. App. Ct. at 239.

To be sure, the jury had the right to disbelieve any

portion of the evidence, and could have selectively disbelieved

portions of the victims' testimony of penetration. "[T]he mere

possibility that the jury might not credit a portion of the

Commonwealth's evidence," however, is not enough to entitle the
15

defendant to an instruction on a lesser-included offense.

Donlan, 436 Mass. at 337.

4. Prior bad act evidence. The victims' grandmother

described an incident when the eldest daughter was six years

old. The grandmother was staying with the entire family in a

one-room cottage on a vacation in New Hampshire. In the

morning, she observed the defendant's semi-erect penis

protruding from the blankets of his bed. She testified that she

"wasn't sure if it was an intentional act."

"Evidence of prior bad acts is generally inadmissible to

show a defendant's propensity to commit a crime." Commonwealth

v. Don, 483 Mass. 697, 713 (2019). Nonetheless, "[s]uch

evidence may be admitted 'to show a common scheme or course of

conduct, a pattern of operation, absence of accident or mistake,

intent, or motive.'" Commonwealth v. Beaulieu, 90 Mass. App.

Ct. 773, 780 (2016), quoting Commonwealth v. Julien, 59 Mass.

App. Ct. 679, 686 (2003). "[E]ven if the evidence is relevant

to one of these other purposes, the evidence will not be

admitted if its probative value is outweighed by the risk of

unfair prejudice to the defendant." Commonwealth v. Bryant, 482

Mass. 731, 734 (2019). "These matters are 'entrusted to the

trial judge's broad discretion and are not disturbed absent

palpable error.'" Commonwealth v. Childs, 94 Mass. App. Ct. 67,
16

71 (2018), quoting Commonwealth v. Keown, 478 Mass. 232, 242

(2017), cert. denied, 138 S. Ct. 1038 (2018).

Here, the defense to the lewd and lascivious behavior

charge was that the defendant's exposures to the best friend

were accidental. For that reason, had the grandmother's

testimony truly sketched out a prior bad act, it might have been

admissible to show an absence of accident or mistake as to that

charge. See Commonwealth v. Mazariego, 474 Mass. 42, 56 (2016);

Childs, 94 Mass. App. Ct. at 73. As it was, the grandmother

described something that even she thought could be an accident,

and thus was entirely consistent with the defense. The

prosecutor ignored this evidence altogether in her closing

argument. Accordingly, even if there was error, it was not

prejudicial "due to the 'scant attention' given to the evidence

at trial" Don, 483 Mass. at 715, quoting Commonwealth v. McGee,

467 Mass. 141, 158 (2014).

5. Conclusion. On the two indictments charging the

defendant with open and gross lewdness, the judgments are

reversed, the verdicts are set aside, and judgments shall enter

for the defendant. On the indictments charging the defendant

with rape of a child, incest, and indecent assault and battery

on a child, the verdicts are affirmed, the sentences are
17

vacated, and the case is remanded to the Superior Court for

resentencing.7

So ordered.

7 Given that judgments are to enter for the defendant with
regard to the open and gross lewdness charges, we remand the
case to afford the judge the opportunity to restructure his
sentence as to the remaining judgments. See Commonwealth v.
Talbot, 444 Mass. 586, 597-598 (2005); Commonwealth v. Kruah, 47
Mass. App. Ct. 341, 348 (1999).