Commonwealth v. Aguiar do Nascimento (Lawyers Weekly No. 11-074-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   16-P-1092                                       Appeals Court   COMMONWEALTH  vs.  VALDEIR AGUIAR DO NASCIMENTO.     No. 16-P-1092.   Nantucket.     April 6, 2017. – June 7, 2017.   Present:  Vuono, Wolohojian, & Carhart, JJ.[1]     Electronic Surveillance.  Privacy.  Statute, Construction.       Complaint received and sworn to in the jury session of the Nantucket Division of the District Court Department on July 17, 2015.   The case was tried before Thomas S. Barrett, J.     Edward Crane for the defendant. Catherine H. Robertson, Assistant District Attorney, for the Commonwealth.     WOLOHOJIAN, J.  We consider here whether G. L. c. 272, § 105, as amended by St. 2014, c. 43, in response to Commonwealth v. Robertson, 467 Mass. 371 (2014), protects people in public places.  The defendant argues that, although the Legislature clearly intended that the amended statute apply to public places, it failed to effectuate its intent.  We disagree, and affirm the defendant’s conviction. The defendant was charged with, and convicted of, violating G. L. c. 272, § 105, for using his cellphone to videotape surreptitiously two teenage girls under their sundresses while traveling on the ferry to Nantucket.  The conduct took place on July 12, 2015, more than a year after the Legislature had — in response to public outcry over the Robertson decision — amended the statute to add the following language, portions of which we have highlighted because they are our focus here: “Whoever wilfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public, and without the person’s knowledge and consent, shall be punished . . . ”   L. c. 272, § 105(b).   “‘Sexual or other intimate parts,’ [are defined as] human genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola, whether naked or covered by clothing or undergarments.”   L. c. 272, § 105(a). In essence, the defendant argues that because no reasonable person would believe his or her clothed anatomy would not be visible in a public place, the statute must be limited to non-public spaces. The amended language came about, as we […]

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