Commonwealth v. Kessler, 817 N.E.2d 711 (Mass. 2004). · Go Syfert
Commonwealth v. Kessler, 817 N.E.2d 711 (Mass. 2004). Cases Citing This Book View Copy Cite
“when the victim ... is a child, there is arguably a greater risk of harm due to the child's immaturity, lack of experience, natural tendency to fantasize, and presumed ignorance of sexual matters”
67 citation events (67 in the last 25 years) across 4 distinct courts.
Strongest positive: Commonwealth v. Waterman (massappct, 2020-10-19)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 21 distinct citers.
discussed Cited as authority (verbatim quote) Commonwealth v. Waterman
Mass. App. Ct. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
that the exposure be 'offensive to one or more persons' is an element required for indecent exposure, . . . but an open and gross lewdness charge requires more
discussed Cited as authority (quoted) Commonwealth v. Tiru
Mass. App. Ct. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
when the victim ... is a child, there is arguably a greater risk of harm due to the child's immaturity, lack of experience, natural tendency to fantasize, and presumed ignorance of sexual matters
discussed Cited as authority (rule) Cabral Fortes Tomar v. Bondi
1st Cir. · 2026 · confidence medium
Tellingly, "alarm or shock" is the aggravating factor that distinguishes § 16 from the lesser included offense of indecent exposure, a misdemeanor requiring only that the conduct be "offensive." Commonwealth v. Kessler, 817 N.E.2d 711, 774 (Mass. App. 2004).
discussed Cited as authority (rule) Commonwealth v. Jarrod F. St. Martin (2×)
Mass. App. Ct. · 2024 · confidence medium
L. c. 272, § 16, does not define "open and gross lewdness and lascivious behavior," the five elements of the offense have been defined by our case law.[3] See Commonwealth v. Kessler, 442 Mass. 770, 773 (2004).
discussed Cited as authority (rule) Commonwealth v. Rogerio S. Thomaz Dos Reis.
Mass. App. Ct. · 2024 · confidence medium
"Where an 'observer suffered significant negative emotions as a result of the exposure,' the observer's reaction 'could justifiably be deemed alarm or shock,' as required to convict a defendant of open and gross lewdness." Commonwealth v. Pereira, 82 Mass. 2 App. Ct. 344, 347 (2012), quoting Commonwealth v. Kessler, 442 Mass. 770, 775 (2004).
discussed Cited as authority (rule) Commonwealth v. Robert Rieder.
Mass. App. Ct. · 2023 · confidence medium
"Mere nervousness and offense has never been held sufficient to warrant a finding that the viewer was 'in fact alarmed or shocked.'" Commonwealth v. Kessler, 442 Mass. 770, 774 (2004). 4 The defendant argues that the Commonwealth failed to present sufficient evidence that S.T., or any other person, was shocked or alarmed by his conduct because S.T.'s initial reaction was to laugh and tell her friend that she was not surprised.
discussed Cited as authority (rule) Commonwealth v. Maguire (2×)
Mass. · 2017 · confidence medium
Contrast Kessler, 442 Mass. at 772-775 (where boys reacted to viewing masturbation with nervous giggling, and continued to watch, insufficient evidence of shock or alarm); Commonwealth v. Militello, 66 Mass. App. Ct. 325, 333-334 (2006) (where “boys did not experience a reaction so intense that they immediately sought to notify someone of the defendant’s behavior,” evidence insufficient to establish “serious negative emotional experience” [citation omitted]).
discussed Cited as authority (rule) Commonwealth v. Bigelow (2×)
Mass. · 2016 · signal: cf. · confidence medium
Cf. Commonwealth v. Kessler, 442 Mass. 770, 773-774 (2004) (prosecution for open and gross lewd and lascivious behavior; insufficient evidence of shock and alarm). 19 In sum, in light of the generous constitutional protections afforded to political speech by the First Amendment (as well as art. 16 of the Massachusetts Declaration of Rights), and the lack of evidence of serious alarm on Michael's part, we conclude that the evidence was not sufficient to support the defendant's conviction of criminal harassment of Michael.16 b.
discussed Cited as authority (rule) Commonwealth v. Trefry
Mass. App. Ct. · 2016 · confidence medium
See Commonwealth v. Fitta, 391 Mass. 394, 396-397 (1984) (rejecting defendant’s argument that felony “open and gross lewdness and lascivious behavior” statute impermissibly overlaps with misdemeanor “indecent exposure” statute because felony requires proof of element not required for misdemeanor); Commonwealth v. Kessler, 442 Mass. 770, 774 (2004) (same).
examined Cited as authority (rule) Commonwealth v. Maguire (4×) also: Cited "see"
Mass. App. Ct. · 2015 · confidence medium
L. c. 272, § 16.1 See Commonwealth v. Kessler, 442 Mass. 770, 774 (2004) (Kessler) (insufficient proof that defendant's masturbating in front of window constituted open and gross lewdness).
discussed Cited as authority (rule) Commonwealth v. Johnson
Mass. · 2014 · confidence medium
Unlike the victims in Commonwealth v. Kessler, 442 Mass. 770,113-774 (2004), who offered no proof that they were “actually ‘alarmed or shocked,’ ” but rather just “offended” by *314 the defendant’s indecent exposure, the Lyonses testified to having a level of fear and anxiety similar to the victims in Commonwealth v. Robinson, 444 Mass. 102, 105, 108 (2005) (serious alarm requirement met where, as result of harassment, victim felt vulnerable, son’s grades dropped due to nervousness, and family felt constantly under surveillance).
discussed Cited as authority (rule) Commonwealth v. Fay
Mass. · 2014 · confidence medium
“When the victim [of a crime of open and gross lewdness] is a child, there is arguably a greater risk of harm due to the child’s immaturity, lack of experience, natural tendency to fantasize, and presumed ignorance of sexual matters.” Commonwealth v. Kessler, 442 Mass. 770, 777 (2004).
cited Cited as authority (rule) Commonwealth v. Pereira
Mass. App. Ct. · 2012 · confidence medium
Commonwealth v. Kessler, 442 Mass. 770, 775 (2004), and cases cited.
examined Cited as authority (rule) Commonwealth v. Suave (3×) also: Cited "see"
Mass. · 2011 · confidence medium
The judge reasoned that the alarm or shock that the defendant’s open and gross conduct is likely to engender are “significant negative emotions,” citing Commonwealth v. Kessler, 442 Mass. 770, 774-775 (2004), and that this renders the defendant a “menace to the health of other persons under a plain reading” of the statute. 6 The judge found that the defendant did not suffer from an antisocial personality disorder and, thus, rejected that aspect of the Commonwealth’s proof. 7 The judge determined that the third element of the Commonwealth’s proof had been met because the defendant…
discussed Cited as authority (rule) Commonwealth v. Botev
Mass. App. Ct. · 2011 · confidence medium
L. c. 272, § 16, has been construed by our case law to require, among other things, that one or more persons in fact be shocked or alarmed by the defendant’s conduct. 5 See, e.g, Commonwealth v. Fitta, 391 Mass. 394, 396 (1984); Commonwealth v. Kessler, 442 Mass. 770, 773 (2004).
discussed Cited as authority (rule) Commonwealth v. Sauve (2×)
Mass. Super. Ct. · 2010 · confidence medium
Id. at 774-75 (emphasis added).
discussed Cited as authority (rule) Commonwealth v. McGuane
Mass. App. Ct. · 2010 · confidence medium
Cf. Commonwealth v. Peters, 429 Mass. 22, 32 (1999) (“instructions were flawed [because] . . . [t]hey gave no definition of the meaning of corroboration”); Commonwealth v. Kessler, 442 Mass. 770, 777 (2004) (requiring definition of “recklessly”); Commonwealth v. Walter, 40 Mass. App. Ct. 907, 909 (1996) (judge’s failure to define the word “felony” in a prosecution for “breaking and entering in the daytime with intent to commit a felony” was error).
cited Cited as authority (rule) Commonwealth v. Braica
Mass. App. Ct. · 2007 · signal: cf. · confidence medium
Cf. Commonwealth v. Kessler, 442 Mass. 770, 772-774 (2004) (discussing requirements of proving actual “alarm or shock”).
discussed Cited "see" Commonwealth v. Taranovsky (2×)
Mass. App. Ct. · 2018 · signal: see · confidence high
See Kessler , 442 Mass. at 773 n.4, 817 N.E.2d 711 . 6 See note 1, supra . 7 Most of the reported decisions prior to Maguire dealing with the offense of open and gross lewdness address the relationship between this offense and the offense of indecent exposure, whether the defendant's conduct constituted exposure, whether that exposure was intentional or done with reckless disregard, whether the defendant's conduct was done openly, whether the observer's reaction was sufficient to meet the requirement of shock or alarm, whether the victim had to be an unsuspecting or unwilling person, and wheth…
discussed Cited "see" Commonwealth v. Trappaga
Mass. App. Ct. · 2010 · signal: see · confidence high
See Commonwealth v. Kessler, 442 Mass. 770, 777 (2004) (requiring definition of “recklessly” where “there is the possibility that the jury would not realize that recklessness requires more than mere negligence”).
examined Cited "see" Commonwealth v. Militello (3×)
Mass. App. Ct. · 2006 · signal: see · confidence high
See Commonwealth v. Kessler, 442 Mass. 770 , 773 & n.4 (2004).
Commonwealth
v.
Michael Kessler
Massachusetts Supreme Judicial Court.
Nov 12, 2004.
817 N.E.2d 711
Max D. Stem for the defendant., Julia K. Holler, Assistant District Attorney, for the Commonwealth.
Cowin.
Cited by 29 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 81%
Citer courts: Massachusetts Appeals Court (1)
Cowin, J.

A District Court jury found the defendant, Michael Kessler, guilty of open and gross lewdness and lascivious[*771] behavior in violation of G. L. c. 272, § 16.[1] The defendant appealed, arguing (1) insufficient evidence of alarm or shock on the part of persons viewing his actions; (2) insufficient evidence that he exposed himself openly; and (3) prejudicial error in the judge’s failure to instruct on the prior inconsistent statements of a witness. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed, based solely on the lack of a prior inconsistent statement instruction. Commonwealth v. Kessler, 60 Mass. App. Ct. 1119 (2004). We granted the defendant’s[2] and the Commonwealth’s applications for further appellate review and also reverse, but on a ground different than that of the Appeals Court.

Facts. In considering a question of the sufficiency of the evidence, we summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Peter,[3] thirteen years of age at time of trial (June 5, 2002), and John, ten years of age at time of trial, were playing in the driveway of the house of John’s grandmother on the morning of November 10, 2001. Peter heard a knock coming from a window of the house across the street, although he did not actually see anyone knocking. That house was owned by the defendant’s mother. When Peter looked toward the sound, he could see a hand in the window “waving [him] to come over.” He ignored it and continued playing. Peter heard a sound “like keys jingling” and went over to investigate. He stood in the driveway of the house next to the defendant’s residence, about twenty feet from the window.

Peter could see a man masturbating through the window, although he could not identify him because he could only see the man’s “private area” and stomach. Peter called to John,[*772] who joined him and saw someone stroking his “private area,” masturbating. The boys “both looked at each other, and. . . started to giggle” and talk. Both described their laughter as a result of nervousness. Peter was “offended” by what he saw.

The grandmother, who had been raking leaves in her yard, called to the boys, asking what they were doing, but they did not respond. She called them over, and they crossed the street back toward her. They were both “excited.” Neither would initially explain the cause of their giggling, but on further questioning, they told her that a man was masturbating in the window and described his actions with “hand gestures.” The grandmother told them that this was not a laughing matter, and telephoned the police. Meanwhile, the boys observed the defendant move past a window, naked, and recognized him. They were familiar with him because John’s mother cleaned the defendant’s mother’s house. A police officer arrived and, after conversing with the defendant, placed him under arrest.

The defendant testified that he had been naked that morning because he had been waiting to take a shower. He explained that the water in the upstairs shower would not heat up; he attributed the lack of hot water to his belief that the heat was not on upstairs. He turned the heat on, and while he was waiting, he played, still without any clothes on, with his mother’s dogs in the living room. He denied seeing the boys outside his window, beckoning them with his hand, or masturbating that morning.

Discussion. 1. Sufficiency of the evidence. The judge denied the defendant’s motions for the entry of a required finding of not guilty submitted at the close of the Commonwealth’s case and at the close of all the evidence. In reviewing the denial of motions for a required finding of not guilty, “we must look at the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Ruci, 409 Mass. 94, 96 (1991) citing Commonwealth v. Latimore, supra at 676-677.

The five elements of the offense of open and gross lewdness and lascivious behavior appear in Instruction 5.42 of the Model[*773] Jury Instructions for Use in the District Court (1988).[4] While G. L. c. 272, § 16, does not itself define “open and gross lewdness and lascivious behavior,” these five elements were generated by our case law. See, e.g., Commonwealth v. Fitta, 391 Mass. 394, 396 (1984) (defendant’s act must be committed “in such a way as to produce alarm or shock”); Commonwealth v. Adams, 389 Mass. 265, 271-272 (1983) (holding that case law had made clear that masturbating in car on public road was sufficiently “open”); Commonwealth v. Catlin, 1 Mass. 8, 10 (1804) (conviction cannot be upheld for behavior between two consenting adults in private residence as it is not “open”).

The judge instructed the jury in accordance with the Model Instructions. The defendant contends that there was insufficient proof that the boys were “in fact alarmed or shocked,” the fifth element of the crime.

Even when we view the facts most favorably to the Commonwealth, they do not warrant a finding that either of the boys was actually “alarmed or shocked.” The prosecutor conceded at trial that he did not “put any shock in the behavior.” We take this statement to mean that the Commonwealth was not contend[*774] ing that the boys were shocked by what they saw. Nor was there any evidence of alarm. Both boys stated that they were laughing because they were “nervous,” not alarmed. They only left the window after two calls from the grandmother. She described them as “excited,” but did not suggest that they were “alarmed.”

Being “excited” or “nervous” may sometimes be unpleasant, but it does not connote the serious negative emotional experience required by the statute. Peter’s strongest statement of his feelings was that he was “offended,” but being offended is not the equivalent of undergoing “alarm or shock.” That the exposure be “offensive to one or more persons” is an element required for indecent exposure, see Commonwealth v. Fitta, supra at 396, but an open and gross lewdness charge requires more. Indeed, the presence of “alarm or shock” is what distinguishes the open and gross offense from the indecent exposure offense. Id. at 396-397. Open and gross lewdness is a felony punishable by up to three years in State prison, while indecent exposure is a misdemeanor carrying a sentence of up to six months in a jail or house of correction. Compare G. L. c. 272, § 16, with G. L. c. 272, § 53. See G. L. c. 274, § 1. It is logical that there are elements of proof applicable to the felony that are not required for the misdemeanor, and our holding is consistent with that. See Commonwealth v. Quinn, 439 Mass. 492, 495-496 (2003); Commonwealth v. Fitta, supra at 396-397 (rejecting defendant’s argument that G. L. c. 272, § 16, impermissibly overlaps with indecent exposure statute because requirement “that the defendant’s act must be committed in such a way as to produce alarm or shock” indicates that “§ 16 requires proof of an element not required for indecent exposure”).

Mere nervousness and offense has never been held sufficient to warrant a finding that the viewer was “in fact alarmed or shocked.” See, e.g., Commonwealth v. Wardell, 128 Mass. 52, 53 (1880) (girl “fled in fright” to neighbor’s house); Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 273 (2001) (observer told defendant he was “disgusting,” and stated she felt “upset,” “angry,” and “sad” due to exposure, and was “too in shock” to tell another person about it immediately);[*775] Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 303-304 (1999) (girl who witnessed exposure testified that she felt “very uncomfortable and nervous” and immediately alerted her parents that defendant was “weird”); Commonwealth v. Gray, 40 Mass. App. Ct. 901, 901 (1996) (observer stated he felt “disgust” at encounter and moved at once to contact police and identify perpetrators). In all these cases, the observer suffered significant negative emotions as a result of the exposure; thus his or her reaction could justifiably be deemed alarm or shock. Nervous giggling is not an equivalent, and the boys’ reactions are insufficient to meet the fifth element of the open and gross lewdness charge.

Because the evidence is insufficient to support a finding that the boys were “alarmed or shocked,” the judgment of the District Court on the open and gross lewdness charge must be reversed, and the case remanded with instructions that a judgment of acquittal enter on this count of the complaint. Consideration of other issues is unnecessary to the decision. However, given the importance of the other issues briefed by both parties, we choose to address them below.

2. “Tender years” instruction. In addition to instructing the jury on the five elements required for a conviction of open and gross lewdness, the judge gave a “tender years” supplemental instruction.[5] See Instruction 5.42 of the Model Jury Instructions for Use in the District Court. The “tender years” instruction apparently derives from the case of Commonwealth v. Wardell, [*776] supra at 53, where the term “tender years” was used in summarizing what the court held was sufficient evidence to support a verdict of guilt. However, that reference cannot be read as eliminating the fifth element (that the viewer actually experience alarm or shock as a result of the defendant’s actions). To the contrary, the court specifically referenced the fact that the child who saw the exposure “fled in fright to a neighboring house.”

The “tender years” passage from Wardell has been repeated in some of our more recent cases, but not in a context that suggests elimination or modification of the fifth element of the offense. See, e.g., Commonwealth v. Quinn, supra at 498 n.11; Commonwealth v. Fitta, supra at 396. Although both of these cases involved situations in which defendants exposed themselves to persons of “tender years,” as is often the situation in prosecutions under G. L. c. 272, § 16, see Commonwealth v. Sefranka, 382 Mass. 108, 116 (1980), neither case suggested that that factor eliminated the necessity of establishing all five elements. In the case of Commonwealth v. Quinn, supra, we referred to the “tender years” language of Wardell, but only to support the proposition that “[cjonvictions under G. L. c. 272, § 16, have usually concerned exposure in front of children.” The Quinn case also reaffirmed that conviction requires proof of the fourth and fifth elements. “Conviction of ‘open and gross lewdness,’ G. L. c. 272, § 16,. . . requires the Commonwealth to prove, among other elements, intention, manner (done in such a way as to produce alarm or shock), and impact (does in fact alarm or shock).” Id. at 496. The Fitta case, cited by the Commonwealth, is not to the contrary. It too repeats the above quoted Wardell language, but does not state that this language eliminates any of the five elements. See Commonwealth v. Fitta, supra. The “tender years” instruction is at best confusing, as it suggests that it is unnecessary to[*777] prove one of the elements where children are involved. Even when, as in the present case, it is sandwiched between two statements requiring proof of five elements, it is a misleading formulation of the law and should be avoided in the future.

We do not suggest that the age of the viewer is necessarily irrelevant to the offense. Rather, we take this occasion to clarify that it is potentially relevant to the fourth element (done in such a way as to produce alarm or shock), but not to the fifth element (does in fact alarm or shock). The jury’s assessment whether the manner in which the act was done was such as to produce alarm or shock may take into account the entirety of the surrounding circumstances, including the young age of the person viewing the defendant’s conduct. When the victim is a child, there is arguably a greater risk of harm due to the child’s immaturity, lack of experience, natural tendency to fantasize, and presumed ignorance of sexual matters. Where appropriate, counsel may argue this point, but no instruction to that effect should be given. The fifth element requires that the viewer in fact suffer alarm or shock, and the mere youth of the viewer does not relieve the Commonwealth from proving that alarm or shock actually resulted from the defendant’s conduct. The present “tender years” Supplemental Instruction 5.42 of the Model Jury Instructions for Use in the District Court, which suggests that the age of the observer may obviate the need to establish the fifth element of the offense of open and gross lewdness, should not be given.

3. Definition of “recklessly.” In his instructions, the judge defined the third element as “that the defendant did so openly. That is: either he intended public exposure or he recklessly disregarded a substantial risk of public exposure . . . .’’He never defined “recklessly,” despite an objection by defense counsel and a request for further definition.

When a term such as “recklessly” is used in jury instructions, it should be defined. See, e.g., Commonwealth v. Fuller, 421 Mass. 400, 411 (1995) (“judge should explain the meaning of technical terms where that meaning is obscure and there is a possibility of confusion”). Here there is the possibility that the jury would not realize that recklessness requires more than mere negligence or a showing that someone “might” see the[*778] defendant. See Commonwealth v. Kelley, 25 Mass. App. Ct. 180, 187-188 (1987). A definition would have avoided this problem.

4. Prior inconsistent statement instruction. Peter, who testified at trial that he saw a hand beckoning him over, did not mention the hand in a statement he made to the police at the time of the incident. The responding police officer testified that he did not believe Peter told him anything about the hand. This testimony called for an instruction on prior inconsistent statements, yet, despite defense counsel’s objection, the judge refused to give such an instruction.

“The failure to give a requested instruction on the use of prior inconsistent statements in assessing the credibility of a witness is error if there is evidence that a witness made prior inconsistent statements.” Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 71 (1995), citing Commonwealth v. Martin, 19 Mass. App. Ct. 117, 119-120 (1984). Failure to mention something in an earlier statement is inconsistent with a later statement of fact “when it would have been natural to include the fact in the initial statement.” Commonwealth v. Ortiz, supra at 72.

Conclusion. The judgment of the District Court on the open and gross lewdness charge is reversed, the verdict set aside, and the case remanded with instructions to enter a judgment of acquittal on this count of the complaint.[6]

So ordered.

1

The defendant was also charged with indecent exposure in violation of G. L. c. 272, § 53. On conviction, the District Court judge dismissed the indecent exposure count as a lesser included offense of the open and gross lewdness conviction.

2

Despite the Appeals Court’s reversal of his conviction, the defendant sought further review. He requested that we address the sufficiency of the evidence; reversal on this ground would preclude retrial. See, e.g., Neverson v. Commonwealth, 406 Mass. 174, 175 (1989).

3

We refer to both children by pseudonyms.

4

Instruction 5.42 of the Model Jury Instructions for Use in the District Court (1988) provides, in part:

“In order to.prove the defendant guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt:
“First: That the defendant exposed his (her) genitals) (buttocks) (or) (female breasts) to one or more persons;
“Second: That the defendant did so intentionally;
“Third: That the defendant did so ‘openly,’ that is, either he (she) intended public exposure, or he (she) recklessly disregarded a substantial risk of public exposure, to others who might be offended by such conduct;
“Fourth: That the defendant’s act was done in such a way as to produce alarm or shock; and
“Fifth: That one or more persons were in fact alarmed or shocked by the defendant’s thus exposing himself (herself).”

This court has cited this instruction with approval most recently in Commonwealth v. Quinn, 439 Mass. 492, 501-502 (2003). See Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 274 n.4 (2001).

5

The instruction, in relevant part, provided:

“I’m going to give those to you again. Five elements. First, that the defendant exposed his genitals to one or more persons. Second, that he did so intentionally. Third, that the defendant did so openly. That is: either he intended public exposure or he recklessly disregarded a substantial risk of public exposure to others who might be offended by such conduct. Fourth, that the defendant’s act was done in such a way as to produce alarm or shock. And, fifth, that one or more persons were in fact alarmed or shocked by the defendant thus exposing himself.
“Now, jurors, if the Commonwealth has proved beyond a reasonable doubt that the defendant intentionally, indecently and offensively exposed himself to a child of tender years, it’s up to you to determine whether these people were of tender years, without necessity or reasonable excuse and in such a way as to produce alarm, then you may find the defendant guilty of this offense.
[*776] “Now, those are the five elements for open and gross lewdness, it’s called. If the Commonwealth has proven all five elements beyond a reasonable doubt, then it is your duty, your obligation and your responsibility to find the defendant guilty of open and gross lewdness.”
6

The indecent exposure conviction was dismissed by the judge. See note 1, supra. Neither party has raised the status of that conviction in this appeal, and we do not reach that issue.