Commonwealth v. Maguire (Lawyers Weekly No. 10-002-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12013 COMMONWEALTH vs. LAWRENCE F. MAGUIRE. Suffolk. September 8, 2016. – January 3, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Open and Gross Lewdness and Lascivious Behavior. Practice, Criminal, Required finding. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on October 15, 2010. The case was tried before David B. Poole, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Bradford R. Stanton for the defendant. Matthew T. Sears, Assistant District Attorney (Ashley E. Polin, Assistant District Attorney, with him) for the Commonwealth. HINES, J. After a jury trial, the defendant, Lawrence F. Maguire, was convicted in the Boston Municipal Court of open and gross lewdness and lascivious behavior in violation of G. L. c. 272, § 16, and resisting arrest in violation of G. L. c. 268, § 32B. The Appeals Court affirmed the convictions in a divided decision. See Commonwealth v. Maguire, 87 Mass. App. Ct. 855 (2015). We granted the defendant’s application for further appellate review. After the case was entered in this court, the defendant requested and received leave to file a new brief. See Mass. R. A. P. 27.1 (f), as amended, 441 Mass. 1601 (2004). We consider the brief “in lieu of the Appeals Court brief.” Id. See Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006). The brief filed in this court makes no argument bearing on the conviction of resisting arrest, and we do not, therefore, address the merits of that conviction. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). See also Commonwealth v. Walsh, 407 Mass. 740, 745 (1990). We affirm the conviction of resisting arrest. We reverse the conviction of open and gross lewdness and lascivious behavior because there was insufficient evidence that the defendant’s conduct caused any person to experience “shock” or “alarm,” as the statute requires. We remand for entry of a conviction of the lesser included offense of indecent exposure. We also clarify that the “shock” or “alarm” requirement has both a subjective and an objective component. Facts. We summarize the facts in the light most favorable to the Commonwealth, focusing on those relevant to the defendant’s claim […]