Commonwealth v. James J. Fiorentini.

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

24-P-44

COMMONWEALTH

vs.

JAMES J. FIORENTINI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant James Fiorentini, a high school teacher, was

charged in the District Court with accosting or annoying another

person -- a student in his class, whom we will call Jane -- in

violation of G. L. c. 272, § 53.1 The defendant moved to dismiss

this charge for lack of probable cause. See Commonwealth v.

DiBennadetto, 436 Mass. 310, 313 (2002). The judge allowed the

defendant's motion, and the Commonwealth appealed from the

judgment of dismissal. Because the evidence presented by the

1The defendant was additionally charged with a second count
of accosting or annoying another person. That charge, which
arose out of a complaint from a different student in the
defendant's class, is not at issue in this appeal.
Commonwealth established probable cause as to each of the

necessary elements of the alleged offense, we reverse.

Discussion. "[A] motion to dismiss a criminal complaint

for lack of probable cause is decided from the four corners of

the complaint application, without evidentiary hearing"

(citation omitted). Commonwealth v. Huggins, 84 Mass. App. Ct.

107, 111 (2013). The complaint application must include

information to support probable cause for each essential element

of the charged offense. Commonwealth v. Humberto H., 466 Mass.

562, 565-566 (2013).

"[P]robable cause exists where . . . the facts and

circumstances within the knowledge of police are enough to

warrant a prudent person in believing that the individual

arrested has committed or was committing an offense."

Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016),

quoting Commonwealth v. Stewart, 469 Mass. 257, 262 (2014). "A

demonstration of probable cause 'requires more than mere

suspicion but something less than evidence sufficient to warrant

a conviction.'" Leonard, supra, quoting Commonwealth v. Roman,

414 Mass. 642, 643 (1993). We review a judge's probable cause

determination de novo, Humberto H., 466 Mass. at 566, and view

the information in a complaint application "in the light most

favorable to the Commonwealth." Leonard, supra.

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In the present case, the defendant was charged with

violating G. L. c. 272, § 53 (a), which provides for the

punishment of "persons who with offensive and disorderly acts or

language accost or annoy another person." G. L. c. 272, § 53.

Under § 53, "offensive" and "disorderly" are distinct elements,

and the Commonwealth must establish probable cause that the

defendant's conduct satisfied both. Commonwealth v. Sullivan,

469 Mass. 621, 625 (2014).

Analysis. 1. Conduct was offensive. "We interpret the

'offensive' acts or language element of G. L. c. 272, § 53, as

requiring proof of sexual conduct or language, either explicit

or implicit. . . . By implicit sexual conduct or language, we

mean that which a reasonable person would construe as having

sexual connotations." Sullivan, 469 Mass. at 625-626.

Additionally, the "'offensive' acts or language [must] cause a

complainant to feel displeasure, anger, resentment, or the

like." Id. at 625. Finally, such acts or language must be such

that they "would be considered indecent or immoral by a

reasonable person." Id.

Viewed in the light most favorable to the Commonwealth, see

Leonard, 90 Mass. App. Ct. at 190, the complaint application in

the present case established probable cause that the defendant's

conduct was "offensive" under G. L. c. 272, § 53. Jane was in

the defendant's class twice a week. During each class, the

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defendant would come up to her desk approximately five to six

times, smile at her, look at her chest, and attempt to look down

her shirt.2 This conduct was at least implicitly sexual, see

Sullivan, 469 Mass. at 628 (male defendant's acts of following

young woman victim on foot and with car and attempting to get

her into his car, all while calling her "little girl," were

implicitly sexual), and could reasonably be considered

explicitly sexual, given that the defendant made repeated

attempts to view Jane's breasts. The sexual nature of the

conduct is reinforced by the fact that it occurred in the

context of the defendant's classroom, which Jane described to

officers as an inappropriately sexualized environment.3 See

Commonwealth v. Cahill, 446 Mass. 778, 781 (2006) ("defendant's

act . . . was offensive, particularly when considered in the

2 We note that, while the charged conduct at issue on appeal
is the defendant's act of staring at Jane's chest and attempting
to look down her shirt, the Commonwealth's argument before the
motion judge focused on the defendant's inappropriate speech in
his classroom as the charged conduct, and framed the act of
attempting to look down Jane's shirt as evidence that the speech
was directed at her. As a result, the judge followed that lead
and held that the defendant's conduct -- the speech -- was not
"uniquely or specifically directed at [Jane]." On de novo
review, we take a different approach, focusing on the
defendant's staring at Jane's chest and looking down her shirt -
- conduct that was specifically directed at Jane.

3 Specifically, Jane reported that the defendant discussed
"his personal life and sex life with the class" in explicit
detail for "at least 20 minutes or so each class."

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context of the defendant's other behaviors toward the victim");

Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 16 (2007)

("context is critical in analyzing convictions under G. L.

c. 272, § 53").

The complaint application likewise established probable

cause that Jane felt displeasure because of the defendant's

conduct. Jane reported that she feared the defendant's sexual

interest in her and believed the defendant "was truly only

interested sexually in staring at her while making her disgusted

with herself." See Cahill, 446 Mass. at 781 (conduct can be

offensive if it causes victim to feel panic or fear, even if

other witnesses fail to testify that they considered conduct

harassing). Jane also never wanted to be left alone with the

defendant and, due to these concerns, she began skipping his

class.

Finally, the complaint application established probable

cause that the defendant's acts and language "would be

considered indecent or immoral by a reasonable person."

Sullivan, 469 Mass. at 625. This is particularly true given the

teacher-student relationship between the defendant and Jane, and

the defendant's creation of an inappropriately sexualized

atmosphere in his classroom through his regular discussion of

his sex life. Thus, the Commonwealth sufficiently established

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probable cause that the defendant's acts would be offensive to a

reasonable person.

2. Conduct was disorderly. "Disorderly acts 'are those

that involve fighting or threatening, violent or tumultuous

behavior, or that create a hazardous or physically offensive

condition for no legitimate purpose of the actor.'"

Commonwealth v. St. Louis, 473 Mass. 350, 366 (2015), quoting

Commonwealth v. Chou, 433 Mass. 229, 233 (2001). Where the

Commonwealth relies on the defendant's creation of "a hazardous

or physically offensive condition" to satisfy this element of

the offense, it need not also demonstrate that the act was

threatening. See Cahill, 446 Mass. at 783. In the present

case, however, we are persuaded that the complaint provided

probable cause to believe that the defendant's conduct was both

physically offensive and threatening.

As to "physically offensive" conduct, "physical contact

with a victim's person is not necessary to render one's actions

physically offensive." Ramirez, 69 Mass. App. Ct. at 18.

Instead, for conduct to be considered physically offensive, a

defendant must "create a condition that would cause a reasonable

person to fear imminent physical harm." Sullivan, 469 Mass. at

627.

Here, the complaint application established probable cause

that the defendant did just that by regularly and openly staring

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at Jane's chest and attempting to look down her shirt at her

breasts. It is apparent that Jane feared imminent physical harm

due to this conduct, as she stated that she never wanted to be

left alone with the defendant. Moreover, it was reasonable for

Jane to fear physical harm (namely, an inappropriate touching)

if she were to be left alone with the defendant, as he would

stand closely to Jane while attempting to look down her shirt,

and he did this many times a day as Jane was seated at her desk

in his classroom, despite his proximity to other students. See

Commonwealth v. LePore, 40 Mass. App. Ct. 543, 548-549 (1996)

(act of voyeurism alone created physically offensive condition,

despite physical distance and barrier between defendant and

victim). Cf. Ramirez, 69 Mass. App. Ct. at 19 (no physically

offensive conduct where defendant repeatedly called out to

victim but never attempted to go near her or restrict her

movement). The additional context of the age difference and

power imbalance between the defendant and Jane, and the

inappropriately sexualized environment of the defendant's

classroom, is also relevant to this analysis. See Cahill, 446

Mass. at 782-783 (defendant's conduct was physically offensive,

as it had "sexual overtones" in light of his "previous and

subsequent behavior").

Although the complaint application need not also

demonstrate probable cause that the defendant's conduct was

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"threatening," see Cahill, 446 Mass. at 783, we conclude that it

did so here. Conduct may be threatening even if there is no

"evidence that the threat will be immediately followed by actual

violence or the use of physical force." Chou, 433 Mass. at 235.

Additionally, "a threat can be made without deployment of words

explicitly stating one's intent to do harm, so long as the

circumstances support the complainant's fearful response."

Ramirez, 69 Mass. App. Ct. at 20-21, citing Chou, supra at 234.

In the present case, Jane explicitly reported that she was

fearful of being left alone with the defendant, and the

circumstances -- namely the defendant's daily attempts to look

down Jane's shirt and his repeated invasions of her physical

space while she was sitting at her desk -- support that fear.

Cf. Ramirez, 69 Mass. App. Ct. at 21 (it was not reasonable to

infer that defendant intended complainant to fear that harm

would befall her when defendant made no invasive move toward

complainant, and complainant did not state that she was in fear

of defendant). The fact that the defendant had power over Jane

as her teacher and this behavior took place at school also adds

to the threatening nature of the conduct. See Chou, 433 Mass.

at 235 (eroding victim's "reasonable expectation of safety at

school" can contribute to that victim's fear). As a result, the

Commonwealth sufficiently established probable cause that the

defendant's acts would be considered disorderly by a reasonable

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person, as the acts were both physically offensive and

threatening.

Conclusion. The application for complaint established

probable cause to believe that the defendant's conduct toward

Jane was "disorderly" and "offensive," and that it otherwise

satisfied the essential elements under G. L. c. 272, § 53.

Accordingly, it was error to dismiss count two of the complaint.

Judgment dismissing count two
of the complaint reversed.

By the Court (Vuono, Meade &
Hand, JJ.4),

Clerk

Entered: February 11, 2025.

4 The panelists are listed in order of seniority.

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