Massachusetts Appeals Court Awards New Trial to Man Who Walked Through the Boston Esplanade Wearing a Thong

The Massachusetts Appeals Court today reversed the conviction of a man who walked through the Esplanade wearing only a thong.  The name of the case is Commonwealth v. Taranovsky

On August 9, 2015, a woman was riding in a boat on the Charles River near the Esplanade’s Hatch Shell.  The woman saw two kids (between the ages of 5 and 7) riding scooters when all of a sudden they stopped and turned their heads to look at someone.  The woman realized the children were looking at a man, later identified as the defendant, “strutting” on a walkway on the Esplanade.  The defendant wore nothing other than a “banana hammock” (otherwise known as a male thong) that left his butt completely exposed.  The woman testified she was “shocked” and “just a little disgusted” by the man, particularly because he was exposing himself to children.  The woman took a picture of the defendant and reported him to a nearby state trooper.  The trooper found the defendant, who hurriedly pulled on his pants and appeared to be nervous.  He told the trooper he had been sunbathing.  The defendant was placed under arrest and a Boston Municipal Court jury later convicted him of open and gross lewdness and lascivious behavior.

In reversing the conviction, the Appeals Court relied on a Supreme Judicial Court opinion that was delivered after the defendant’s trial.  In a case called Commonwealth v. Maguire, the Supreme Judicial Court ruled for the first time that in open and gross cases, the prosecutor is obligated to prove beyond a reasonable doubt that the person who witnessed the exposure was shocked or alarmed and a reasonable person would have been shocked or alarmed by such exposure.  While there was testimony in this case that the woman who saw the defendant’s butt was subjectively shocked or alarmed, the judge did not tell the jurors they had to find a reasonable person would also have been shocked or alarmed.  The omission of the instruction was particularly problematic in this case, as the Commonwealth’s evidence regarding whether a reasonable person would have been shocked or alarmed was relatively weak.  The Appeals Court noted that the woman saw the defendant’s butt from the side as he walked along the Esplanade from a considerable distance.  Whether a reasonable person would have experienced shock or alarm by witnessing such an event is questionable.

The defendant also argued on appeal that the eyewitness should not have been permitted to testify about her observations of the children.  The woman could not have been shocked or alarmed simply through her vicarious concern for other people (the kids), so such evidence doesn’t seem to be relevant (and there is the risk that such evidence would improperly inflame the passions of the jury).  However, the Appeals Court ruled the prosecutor had the right to present the eyewitness’ story, and the presence of the children was part of that story.

The case will now return to the Boston Municipal Court where the Commonwealth will need to decide whether to retry the defendant (with the proper jury instructions).