The Massachusetts Appeals Court today upheld the sex offense conviction against a man who was identified masturbating in a health club sauna in Tisbury in 2016. The name of the case is Commonwealth v. Fielding.
On May 2, 2016, the victim was swimming labs in a health club pool. The defendant was standing in the shallow end and he struck up a conversation with the victim. He told her his name was “Scott” and they chatted in the pool for about 15 minutes. After the victim finished swimming her laps, she and the defendant soaked in the hot tub and continued to talk while sitting close to one another. As they got out of the hot tub, the defendant went into the sauna and was followed by the victim. They talked some more in the sauna until the victim stood up to leave. The defendant asked her if she “want[ed] to look” and she then saw him masturbating. The victim, shocked and angry, left the sauna. She and the defendant had spent approximately 30 minutes together.
The following day, the victim shared her experience with a yoga instructor (who worked at the health club) and the police. The yoga instructor said a man who matched the description of the defendant had approached her and her daughter, and she was able to find a photo of him on Facebook. The victim identified the defendant from the Facebook photo and he was ultimately charged with open and gross lewdness. At trial, the defendant asserted he was the victim of misidentification. An Edgartown District Court jury found the defendant guilty and he appealed.
In order to convict the defendant of open and gross lewdness, the Commonwealth needed to have proven beyond a reasonable doubt that he intentionally exposed his penis to the victim in public in a shocking or alarming manner, and the victim was shocked or alarmed by the exposure. If believed, the victim’s testimony established the elements of the crime. The defendant’s primary appellate argument was that the trial judge had erred in allowing the victim to identify him during the trial. In 2014, the Massachusetts Supreme Judicial Court issued an important ruling that a witness ordinarily cannot provide an in-court identification of a defendant unless she has participated in a previous, out-of-court identification procedure. However, this rule does not apply if there is a “good reason” for the witness to have not previously identified the defendant out of court. In this case, the Appeals Court concluded an out-of-court identification procedure was not necessary because the victim had such a long time to look at the defendant (during their half hour together in the pool, the hot tub, and the sauna). In any event, the victim had been able to identify the defendant when the yoga instructor presented her with his photograph from Facebook. Therefore, the out-of-court identification requirement had been satisfied.
Sex crime convictions carry additional collateral consequences. A second or subsequent conviction for open and gross lewdness requires a defendant to register as a sex offender.