Commonwealth v. Snow

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22-P-562 Appeals Court

COMMONWEALTH vs. RUSSELL B. SNOW.

No. 22-P-562.

Bristol. September 19, 2023. – July 8, 2024.

Present: Rubin, Neyman, & Walsh, JJ.

Open and Gross Lewdness and Lascivious Behavior. Probable
Cause. Practice, Criminal, Dismissal.

Complaint received and sworn to in the New Bedford Division
of the District Court Department on March 2, 2021.

A motion to dismiss was heard by Joseph P. Harrington, Jr.,
J.

Julianne Campbell, Assistant District Attorney, for the
Commonwealth.
Thomas J. Chirokas for the defendant.

NEYMAN, J. The Commonwealth appeals from a District Court

judge's order dismissing a count of open and gross lewdness and

lascivious behavior (open and gross lewdness), G. L. c. 272,

§ 16, against the defendant, Russell B. Snow. This case

requires us to analyze whether the defendant's conduct could be
2

found to be "open" within the meaning of the statute. We

conclude that the information contained in the criminal

complaint application failed to establish probable cause that

the defendant exposed himself "openly" and thus affirm.

Background. 1. Facts. We describe the facts as set forth

in the criminal complaint application and the police reports

attached thereto. The victim and her boyfriend knew the

defendant through their church and hired him to paint the

victim's residence. The defendant met with the victim at her

house two days prior to the incident to discuss the quote for

the paint job. During their conversation, the defendant

"pointed to one of [the] cameras inside the house and asked what

those were." The victim replied that she had installed cameras

in the house "after her husband had passed away and [while] her

mother-in-law [was] staying at the residence." She further

explained to the defendant that she used the cameras to "keep

an[] eye on people who are coming in and out of the house for

her [mother-in-law] when [the victim] was at work."

On February 9, 2021, the defendant arrived at the victim's

residence, at which time the video cameras captured the

following incident.1 The defendant walked around the house for

1 The police reports submitted with the criminal complaint
application detail the content of the "camera footage" retrieved
from the victim's "surveillance camera system."
3

approximately nine minutes, during which time he "[went] around

the rooms checking the ceiling corners," "look[ed] into Camera

3," moved the ladder twice, "place[d] a drop cloth over the

ladder," and "c[ame] back into the room without his shoes on."

Next, the defendant entered the bathroom. Less than one minute

later, he "c[ame] out of the bathroom with no pants on and [was]

masturbating." He entered the room "with a cloth in his left

hand and his right hand on his penis and briefly look[ed] at the

camera." The defendant walked into various rooms throughout the

house including the kitchen while masturbating, and looked at or

"into" the camera several times. Approximately two minutes

after leaving the bathroom, the defendant "ejaculate[d] into the

rag he [was] holding . . .[,] walk[ed] back into the

bathroom[,]" and then exited the bathroom with his pants on. He

then removed the drop cloth from the ladder, moved the ladder

back near the couch, cleaned the floor in the kitchen, and left

the residence. "After [the defendant] finished masturbating and

was grabbing his belongings he did not look at the cameras

once."

On February 10, Detective Nathan Avelar of the police

department family service and sexual assault unit was assigned

to the case and contacted the victim. Detective Avelar met with

the victim at her residence on February 11, and the victim

explained the incident and showed the detective her surveillance
4

camera system in the basement of her residence. The victim

stated that on the date of the incident, she witnessed "on the

cameras" the defendant masturbating in the kitchen.2 She also

provided Detective Avelar with the time at which the incident

occurred. Another detective retrieved the video footage and

loaded it onto a universal serial bus (USB) drive. On February

16, Detective Avelar interviewed the defendant at the police

station during which the defendant eventually admitted to having

masturbated in the victim's residence on February 9, stating, "I

thought I was by myself."3

2 As acknowledged by the Commonwealth at oral argument,
there was no evidence in the criminal complaint application and
attached police reports that the victim viewed the video footage
contemporaneously with the incident. To the contrary, as
indicated by the Commonwealth, the record reflects that the
victim observed the defendant's conduct "on a recorded video."

3 During his interview with Detective Avelar, the defendant
also stated that "he didn't think the cameras were on in the
house" and that during his conversation with the victim two days
prior to the incident, "she stated it was an old system that she
had when her mom lived there. . . . [H]er mom has been deceased
for a couple of years and I didn't think anything was on." The
defendant further stated, "I thought I was by myself like at my
own house. No one was there, no one ha[d] been there . . .
[when] I was there. I looked at it like I was at my own house."
When Detective Avelar asked the defendant why he looked at the
cameras while masturbating, he responded, "[T]here were no
lights on it, I don't know camera systems. I always thought
there was a red light or green light and no lights were on. To
me it was a verification that no lights are on[,] the cameras
aren't on." As discussed below, in reviewing a motion to
dismiss for lack of probable cause, we view the information in
the criminal complaint application "in the light most favorable
to the Commonwealth," see Commonwealth v. Leonard, 90 Mass. App.
5

2. Procedural history. The defendant was arraigned on

March 4, 2021, and charged with one count of open and gross

lewdness pursuant to G. L. c. 272, § 16. The defendant filed a

motion to dismiss the complaint. Following a nonevidentiary

hearing in the District Court, the judge determined that the

information submitted to the clerk-magistrate failed to

demonstrate that the conduct was "open" pursuant to the statute

and allowed the motion. The Commonwealth now appeals.

Discussion. 1. Legal standards. a. Probable cause.

Probable cause "exists where the facts and circumstances . . .

[are] sufficient in themselves to warrant a [person] of

reasonable caution in the belief that an offense has been . . .

committed" (quotation and citation omitted). Commonwealth v.

Coggeshall, 473 Mass. 665, 667 (2016). "Probable cause requires

more than mere suspicion, but it is considerably less demanding

than proof beyond a reasonable doubt" (quotation and citation

omitted). Id. "When applying this standard we are guided by

the factual and practical considerations of everyday life on

which reasonably prudent [people], not legal technicians, act"

(quotation and citation omitted). Id. Probable cause is less

than a preponderance; it is a "reasonable likelihood" that a

crime was committed (citation omitted). Commonwealth v. Murphy,

Ct. 187, 190 (2016), and thus do not credit the defendant's
denials and explanations that conflict with other evidence.
6

95 Mass. App. Ct. 504, 509 (2019). See Commonwealth v. Preston

P., 483 Mass. 759, 774 (2020) ("proof by a preponderance of the

evidence" is "a higher standard than probable cause"). Finally,

"[p]robable cause must be determined from the totality of the

circumstances." Commonwealth v. Brennan, 481 Mass. 146, 154

(2018).

b. Motion to dismiss. Where a clerk-magistrate has issued

a criminal complaint, "a motion to dismiss[ ] is the appropriate

and only way to challenge a finding of probable cause."

Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). Except

where the record establishes that the clerk-magistrate received

additional evidence, a motion to dismiss for lack of probable

cause is decided from the four corners of the criminal complaint

application, which in this case consists of the application and

attached police reports detailing the facts underlying the

defendant's conduct. See Commonwealth v. Costa, 97 Mass. App.

Ct. 447, 449 (2020). "The complaint application must include

information to support probable cause as to each essential

element of the offense." Commonwealth v. Humberto H., 466 Mass.

562, 565-566 (2013). Our review of a judge's probable cause

determination is a question of law, which we review de novo.

Id. at 566. We view the information set forth in the complaint

application "in the light most favorable to the Commonwealth."

Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016).
7

c. Open and gross lewdness. General Laws c. 272, § 16,

provides in relevant part:

"A man or woman, married or unmarried, who is guilty of
open and gross lewdness and lascivious behavior, shall be
punished by imprisonment in the state prison for not more
than three years or in jail for not more than two years or
by a fine of not more than three hundred dollars."

This statute "has remained essentially unchanged for more than

200 years." Commonwealth v. Maguire, 476 Mass. 156, 158 (2017).

However, the elements of the crime have evolved through

Massachusetts judicial construction.4 Id. To convict a person

of open and gross lewdness, the Commonwealth must prove:

"(1) the defendant exposed his or her, genitals, buttocks,
or female breasts to one or more persons; (2) the defendant
did so intentionally; (3) the defendant did so 'openly,'
that is, either he or she intended public exposure, or he
or she recklessly disregarded a substantial risk of public
exposure, to others who might be offended by such conduct;
(4) the defendant's act was done in such a way as to
produce alarm or shock; and (5) one or more persons were in
fact alarmed or shocked by the defendant's exposing himself
or herself."

Commonwealth v. Quinn, 439 Mass. 492, 501 (2003).5

4 In Maguire, for example, the Supreme Judicial Court held
that the § 16 requirement of "alarm or shock" includes both an
objective and a subjective component, and added that going
forward, "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." Maguire, 476 Mass. at 159.

5 In analyzing the requirements under G. L. c. 272, § 16,
Massachusetts courts have often looked for guidance to the
"closely similar" yet distinct offense of "indecent exposure,"
G. L. c. 272, § 53. See Quinn, 439 Mass. at 494-496 (comparing
and contrasting elements of both statutes); Commonwealth v.
8

2. Analysis. The present case hinges on the third element

of G. L. c. 272, § 16, i.e., whether there is probable cause to

show that the defendant exposed himself "openly" within the

meaning of the statute.6 See Quinn, 439 Mass. at 501. The

Commonwealth argues that the criminal complaint application

established probable cause because "the defendant, after being

advised of the presence of security cameras in the interior of

the home he had been hired to paint, masturbated while looking

into those cameras as he moved from room to room." Thus, the

Commonwealth contends, the conduct satisfied the openness

element at the probable cause stage.

Viewed in the light most favorable to the Commonwealth, the

information in the criminal complaint application and police

Fitta, 391 Mass. 394, 396-397 & n.3 (1984) (comparing elements
and noting different penalties); Commonwealth v. Waterman, 98
Mass. App. Ct. 651, 654-657 (2020) (comparing elements of both
statutes and explaining theories under which indecent exposure
is and is not lesser included offense of open and gross
lewdness). See also Maguire, 476 Mass. at 158 (proof of fourth
and fifth elements requiring "shock" or "alarm" distinguishes
felony of open and gross lewdness from "closely similar"
misdemeanor of indecent exposure). But see Commonwealth v.
Templeman, 376 Mass. 533, 538 (1978) ("The history of § 16 is
quite separate from that of § 53"). Accordingly, it is not
surprising that both parties cite to and rely on such cases
throughout their briefs. Where appropriate, we likewise look to
such authority, keeping in mind the distinct histories and
differing elements and applications of the two statutes.

6 There is no dispute that the criminal complaint
application and attached police reports contain sufficient
information to show probable cause as to all other elements of
open and gross lewdness.
9

reports may indeed have been adequate to show that the defendant

intended public exposure or recklessly disregarded a substantial

risk of public exposure. See Quinn, 439 Mass. at 501. However,

that does not end our analysis. To be "open" under G. L.

c. 272, § 16, the conduct "must occur in the presence of another

person who can be alarmed or shocked." Quinn, supra at 496 n.9.

The "presence" requirement is well established in our case law.

See Commonwealth v. Wardell, 128 Mass. 52, 53-54 (1880)

(explaining under prior version of G. L. c. 272, § 16, that

defendant's lewd conduct was "open" where act was intended to be

seen by "persons present" and "was observed by at least one of

those present").

The Commonwealth does not dispute that proof of the crime

of open and gross lewdness requires the presence of another

person. Nevertheless, the Commonwealth theorizes that "virtual

presence" suffices to satisfy the requirement that the crime be

committed "openly." Quinn, 439 Mass. at 501. Our cases have

acknowledged that the interpretation of laws can evolve in

response to continuous technological advancement. See, e.g.,

Commonwealth v. Carter, 474 Mass. 624, 635-636 (2016), S.C., 481

Mass. 352 (2019), cert. denied, 140 S. Ct. 910 (2020)

(recognizing defendant's "virtual presence at the time of the

[victim's death]" as one of various circumstances that supported

probable cause to sustain indictment for involuntary
10

manslaughter); Perry v. Commonwealth, 438 Mass. 282, 285 (2002),

quoting Towne v. Eisner, 245 U.S. 418, 425 (1918) ("A word is

not a crystal, transparent and unchanged, it is the skin of a

living thought and may vary greatly in color and content

according to the circumstances and the time in which it is used"

[quotation and citation omitted]). See also note 7, infra.

That idea is perhaps even more apt in a context like the present

where, as explained above, the elements and meaning of the crime

of open and gross lewdness "have evolved through our decisional

law." Maguire, 476 Mass. at 158. While we do not opine whether

a "virtual presence" theory might prevail on different facts and

circumstances, the Commonwealth's argument falls short in the

present case for several reasons.

First, as the Commonwealth concedes, all reported decisions

in Massachusetts addressing violations of G. L. c. 272, § 16,

"appear to exclusively involve unwitting individuals being

physically present when they experience shock or alarm from a

defendant's exposure." Second, not only was the victim not

physically present to observe the defendant's conduct; she

observed the acts on recorded video footage sometime after the

conduct had occurred. See note 2, supra. Accepting the

Commonwealth's expansive theory of "virtual presence" under the

present facts could create criminal liability whereby any

recorded lewd act could rise to the level of a violation of the
11

statute. We decline to adopt such a broad reading of G. L.

c. 272, § 16. See Commonwealth v. Kelley, 25 Mass. App. Ct.

180, 183 (1987) (noting that definition of "public" conduct

requirement of G. L. c. 272, § 53, is "strict"). Finally, the

only case cited by the Commonwealth in support of its virtual

presence theory, see Carter, 474 Mass. at 635, is

distinguishable. There, the evidence was found adequate to

support probable cause that the defendant caused the victim's

suicide through remote communications. Id. at 635-636 & n.16.

Unlike the present case, openness was not a requirement of the

crime in Carter. In addition, the defendant and the victim were

aware of each other, and interacted contemporaneously via cell

phone and text messaging. Id. at 628-630. Moreover, given the

amount of real time, consensual sexual conduct lawfully engaged

in online, treating video interaction as "virtual presence"

sufficient to demonstrate openness might criminalize a broad

range of activity beyond the scope contemplated by G. L. c. 272,

§ 16.7

7 We do not categorically dismiss the possibility that some
form of virtual presence may satisfy the open requirement under
G. L. c. 272, § 16. See Commonwealth v. Carrasquillo, 489 Mass.
107, 108 (2022) (addressing analytical challenges in criminal
law context "[g]iven the rapidly evolving role of social media
in society, and the relative novelty of the technology at
issue"). On the other hand, it may be that legislative action
is needed to address such issues. See Brennan, 481 Mass. at 155
(holding that probable cause existed to prove criminal
harassment where defendant concealed global positioning system
12

3. Conclusion. Where the criminal complaint application

contained no information from which one could reasonably infer

that the victim was present within the meaning of G. L. c. 272,

§ 16, the conduct was not "open" as a matter of law. Therefore,

the order dismissing the criminal complaint must be affirmed.8

So ordered.

devices on victims' vehicles and tracked movements of devices
using his cell phone, but recognizing that "[t]he law has not
fully caught up to the new technology, and given the speed with
which technology evolves, it may sometimes leave victims without
recourse").

8 Our decision should not be read to condone the defendant's
conduct. We hold only that the under the present set of facts
the Commonwealth failed to demonstrate that the conduct was open
within the meaning of the statute.