COMMONWEALTH vs. GUY G., a juvenile.

KAPLAN, J. In Brockton Juvenile Court a six-person jury found the juvenile defendant, Guy G. (a pseudonym), delinquent for his violation, first, of G. L. c. 272, § 16 ("open and gross lewdness

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and lascivious behavior") (as appearing in St. 1987, c. 43), and, second, of a provision of G. L. c. 272, § 53 ("lewd, wanton and lascivious persons in speech or behavior") (as appearing in St. 1983, c. 66, § 1). The juvenile noted his appeal from the delinquency convictions and the denial of his motion for a new trial, claiming the prosecution failed for want of evidence in certain particulars. He also appealed from the (presumed) denial of his motion pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), to set aside the verdict on the § 16 offense and enter a finding of delinquency of the included offense of "indecent exposure" (also set out in § 53).

It will be convenient to describe the case as the jury could find it, then to consider the supposed material gaps in the evidence, and finally to examine the handling of the rule 25(b)(2) motion to reduce the delinquency. We shall conclude that the verdicts were fully supported, but there is a need in the interests of justice to remit the case to the trial judge so he may pass anew on the motion in his discretion.

1. On December 19, 1996, Guy and the complaining witness, Carol Denver (a pseudonym), were both aged sixteen and in the junior grade of the Whitman-Hanson Regional High School in Hanson. That morning, the school was in session. Under a program of remedial tutoring by student peers, Denver was trying to assist Guy in a history assignment. They were seated in one of the cubicles to the side of study room no. 25. The cubicles were partitioned for privacy but were not closed and could be readily entered. Two students were at tables in the area outside the cubicles. One, Chris, could, if he rose, see over the partition and into the cubicle. Four or five students were in the adjoining room no. 23. A teacher would "rotate" between the two rooms.

Denver had been coaching Guy at times since mid-November and had had some trouble with him. [Note 1] On this occasion, Guy refused to concentrate on the work and began making passes at Denver. He said she was cute; could she come home with him and play with him; if she "play[ed] with his dick," he would offer her marijuana or CDs, otherwise he might give her a "titty-

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twister." He put his hand on her skirt at her thigh, tried to take her hand. She felt "totally uncomfortable," she "blew him off," and said she would scream if he didn't leave her alone. She quit the cubicle and sat down beside Chris, whom she knew, and conversed with him. [Note 2] Denver testified she was trying to cool off and relax and control herself. She had not intended to go back to Guy but did so when John Dehan, an adjustment counselor, entered from the adjacent room 23 and indicated she should go on with her work.

As Denver returned to the cubicle, Guy resumed his advances. He said he hated to see sixteen-year-old girls with flat chests and tried to throw some pens down her shirt. Then he leaned back in his swivel chair, pulled up his shirt, lowered his low-slung baggy pants and his shorts, and exposed his penis to her, saying, "Isn't that the biggest you've ever seen." After a few moments he pulled back his shorts. She told him he was "disgusting" and to "grow up," and she left. She testified she was "in shock," "didn't know what to think," was "upset" by it, "angry, . . . sad," with "a lot of emotions." She had not mentioned her trouble to Chris, was "too in shock" to try to tell him.

Denver's subsequent complaints to Dehan and Edwin Walsh, an assistant principal, led to a meeting of these teachers with Guy, followed by police intervention. [Note 3]

2. The five elements of the § 16 offense appear in instruction 5.42 of the Model Jury Instructions for Use in the District Court

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(1995), reproduced in the margin. [Note 4] The judge instructed the jury accordingly. The juvenile contends there was insufficient proof of the "alarm or shock" of the fourth and fifth elements, a necessary part of the crime. See Commonwealth v. Fitta, 391 Mass. 394 , 396 (1984); Commonwealth v. Gray, 40 Mass. App. Ct. 901 , 901 (1996); Commonwealth v. Poillucci, 46 Mass. App. Ct. 300 , 302 (1999). Denver's testimony about her reaction to the genital exposure, read in the context of the entire encounter, furnishes proof of alarm and shock for the jury's appreciation, and there is little need to invoke the proposition that on appeal after a delinquency finding, the evidence is taken with intendments favoring the Commonwealth. That Denver did not report or protest instantly to Chris (or to a teacher) was due, she testified, to her being "too in shock." The point goes at most to her credibility, and so for consideration by the jury.

Again, the juvenile argues that the proof of the § 53 offense did not measure up because the genital act was not committed in a "public place," referring here to the fourth element of the applicable model instruction 5.422. [Note 5] As long recognized, and reflected in the jury instruction, the public place issue is not a

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matter of characterizing a location as intrinsically public or private; the question rather is whether 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. See Commonwealth v. Ferguson, 384 Mass. 13 , 15-19 (1981); Commonwealth v. Beauchemin, 410 Mass. 181 , 183-184 (1991); Commonwealth v. Roy, 420 Mass. 1 , 3- 4 (1995); Commonwealth v. Kelley, 25 Mass. App. Ct. 180 , 183-185 (1987). (The Model Penal Code sees statutes such as our § 53 as designed "to protect against the open flouting of community standards regarding sexual or related matters." Model Penal Code § 251.1, explanatory note, at 196 [1985].) The testimony relevant to public place raised a question for the jury properly instructed. In fact, the defendant himself on cross-examination testified that "teachers . . . come in every now and then and check [up]" and it was "not uncommon for . . . someone [to] come[] in to see what you're doing."

3. On the § 16 offense, the judge imposed sentence to the Department of Youth Services (DYS) suspended to July 9, 1999 (the juvenile's eighteenth birthday), with probation on stated terms of counseling, and so forth. The sentence noted that the § 16 delinquency (a felony) subjected the juvenile to registration under the Sex Offender Registration and Community Notification Act, G. L. c. 6, § 178C. [Note 6]

At the hearing (January 15, 1998) on the motion for a new trial, [Note 7] counsel for the juvenile stated candidly he was not so much interested in a new trial as in persuading the judge to allow

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a motion pursuant to Mass.R.Crim.P. 25(b)(2) [Note 8] to reduce the delinquency to indecent exposure. The practical effect would be to leave the terms of the sentence intact, but to remove the occasion for the requirement of registration.

The judge had discretion under the rule to "ameliorate injustice," Commonwealth v. Woodward, 427 Mass. 659 , 667 (1998), and counsel for the juvenile argued that favorable action on the motion would have just such an effect. [Note 9] It was, in the first place, a consequence of the felony-level delinquency that the Plymouth public school claimed the right to exclude the juvenile, see G. L. c. 71, § 37H 1/2 (2) (counsel was considering an appeal under the statute to the superintendent). Thus the juvenile, suffering from attention deficit and hyperactivity disorders, would be left to the educational opportunities that could be provided by the DYS. The court clinic, said counsel, had reported that what the juvenile needed was the social structure of a regular school environment and the development of social skills that would avert for the future any incidents such as the one for which he was prosecuted. Further, the clinic had reported the juvenile was not a sexual predator and was not at risk to become a psychopath. Counsel was asking the court to consider the injustice of laying an obloquy of registration on a sixteen year old for the single dereliction.

The trial judge made no comment about the merits and justice of the juvenile's request for reduction; rather, he expressed doubt whether he had authority to pass on the request. He said, even if indecent exposure was an included offense, "which I

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don't know if it is" [Note 10] -- a doubt then shared by the Commonwealth -- he had not been asked to instruct the jury on indecent exposure and he doubted he was free to impose a sentence on that offense when the jury could not have considered it or rendered a verdict upon it. The juvenile's counsel said a trial judge in Superior Court had recently (actually it was in November, 1997) acted in discretion to reduce a conviction of murder in the second degree to a conviction of the lesser offense of involuntary manslaughter, even though he had not put any question to the jury about manslaughter. [Note 11] Responding to counsel, the judge said he was not sure the judge's action in the cited instance was "right."

It was not until October 2, 1998, that the judge ruled, inscribing on the margin of the paper motion for a new trial, "After hearing and consideration of materials submitted the motion is denied." The judge's attention seemed trained on the question of a new trial. Surely the judge was not allowing the request for reduction, and it may be presumed denied and subject to appeal, but he did not mention the request, and we find no clearcut disposition or reasoning on the matter. We do not know whether he overcame his doubt about his power or did in fact consider the request.

On the present appeal, it must be taken as settled that there was no bar to the judge's entertaining and passing on the reduction request by reason of the omission to instruct the jury on the lesser offense. See Commonwealth v. Woodward, 427 Mass. at 662-667, [Note 12] and the Commonwealth in its brief appears not to dispute the proposition that the indecent exposure of § 53 is an

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included offense of the § 16 charge within the meaning of the second sentence of rule 25(b)(2) (see note 8, supra). [Note 13]

The Commonwealth argues that the request for reduction came too late, that it had to be made within the five days mentioned in the first sentence of rule 25(b)(2). The law is otherwise: the five-day limit does not apply to applications under the second sentence; these are without limit of time in the same sense as motions for a new trial under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979) (see now 435 Mass. 1501 [2001]). See Commonwealth v. Keough, 385 Mass. 314 , 318 (1982); Commonwealth v. Aguiar, 400 Mass. 508 , 511 n.3 (1987); Commonwealth v. Carter, 423 Mass. 506 , 511 n.6 (1996). The request was timely.

The juvenile urges us to act to allow the motion in order to repair an injustice. The Commonwealth seems content that injustice was not done. But the discretion involved, to be carefully and sparingly exercised, is in the first instance for the trial judge.

In all the circumstances, the indicated course is to remand the case to the trial judge to revisit the scene and consider and decide the rule 25(b)(2) motion as applied to the § 16 delinquency. Accordingly, on the charge of violation of G. L. c. 272, § 16, the matter is remanded to the Juvenile Court for a ruling on the motion pursuant to Mass.R.Crim.P. 25(b)(2). On the charge of violation of G. L. c. 272, § 53 ("lewd . . . persons in speech or behavior"), the adjudication of delinquency is affirmed. The order denying the motion for a new trial is affirmed.

So ordered.