Appeals Court (April 15, 2011)

Defendant's Fifth Amendment right against double jeopardy prohibits convictions for two counts of open and gross lewdness when there was one incident involving two victims.

On November 14, 2008, two fifteen year-old girls sat on swings in a Millis park. One girl startled and screamed upon spotting a man, the defendant Botev, behind them; both girls shortly got up to leave the area. Botev asked them to wait; when they turned towards him they saw his exposed penis and his hand moving up and down near his genitals. This encounter lasted approximately ten seconds. The defendant fled with his "bare buttocks visible"; the girls ran away and reported the incident to the police.

During a jury-waived trial in District Court, a judge convicted the defendant of two counts of open and gross lewdness in violation of G.L. c. 272, § 16. In his appeal, the defendant claimed that the convictions for two separate violations of G.L. c. 272 § 16 violated his Fifth Amendment right to be free from double jeopardy.

"The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." Commonwealth v. Constantino, 443 Mass. 521, 523 (2005), quoting from Mahoney v. Commonwealth, 415 Mass. 278, 283 (1993). In this case, the issue was "whether the Legislature intended to authorize the imposition of multiple punishments for a single incident of open and gross lewdness resulting in shock and alarm to more than one person, or whether it intended that a single penalty attach to the unlawful conduct."

Offenses that prevent violence or punish physical injury to others are victim-based and permit multiple counts for multiple victims, but conduct-based offenses preclude multiple counts for multiple victims. For example, vehicular homicide is victim-based and permits a charge for each victim because the "gravamen of the offense was the killing of a human being rather than the unlawful operation of the vehicle." Commonwealth v. Meehan, 14 Mass.App.Ct. 1028 (1982). On the other hand, leaving the scene of an accident or driving to endanger precludes multiple counts for multiple victims because those crimes prohibit specific behavior; they are conduct-based. See Commonwealth v. Constantino, 443 Mass. 521 (2005).

The Court considered what act the legislature intended to punish in order to determine whether open and gross lewdness is a victim-based or conduct-based crime. It noted that the statute, enacted in 1784, "has remained essentially unchanged for more than 200 years" Commonwealth v. Ora, 451 Mass. 125, 126 (2008), and is placed within Chapter 272, which is devoted to "Crimes Against Chastity, Morality, Decency, and Good Order." The Court acknowledged that the elements of the crime necessitate "one or more persons in fact be shocked or alarmed by the defendant's conduct" but found this did not alter "the objective of the statute from that of criminalizing behavior offensive to society generally to that of imposing punishment based on the number of individual victims."

Concluding that open and gross lewdness is a conduct-based offense, the Court found that multiple convictions for the same incident violated the defendant's right against double jeopardy. Accordingly, the Court vacated the second count of open and gross lewdness.