Commonwealth v. Abidan Rivera.

• Court: Massachusetts Appeals Court
• Decided: May 5, 2023
• Docket: 22-P-0362
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-362

COMMONWEALTH

vs.

ABIDAN RIVERA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was arrested and charged with two counts of

open and gross lewdness, in violation of G. L. c. 272, § 16,

after he exposed himself to two children multiple times at a

store in Saugus. The defendant later pleaded guilty to both

counts in District Court. Five years later, the defendant filed

a motion to vacate one of the guilty pleas, which was denied.

On appeal, the defendant argues that the denial of his motion to

vacate was an abuse of discretion because he committed only one

continuous incident of exposing himself and he should have been

convicted of only one count. Concluding that the judge did not

abuse his discretion in denying the motion to vacate, we affirm. Background.1 On November 11, 2016, two children, ages seven

and eleven, reported to the police that the defendant had

exposed his penis to them while they were in a store in Saugus.

The children and their mother indicated that the defendant had

followed the children throughout the store, pulled his shorts

down, and showed them his genitals "several times while they

were in the store." The police spoke to the defendant, who

admitted that he was not wearing underwear and "believed that at

one point he had crouched down to look at some shoes and while

adjusting his shorts, his genitals may have been exposed to the

two children." The police arrested the defendant and charged

him with two counts of open and gross lewdness, in violation of

G. L. c. 272, § 16.

On August 31, 2017, the defendant admitted that the above

facts had happened and pleaded guilty to both counts of open and

gross lewdness. On December 23, 2021, the defendant filed a

motion to vacate one of his guilty pleas from the Saugus

incident. The motion was denied, and this appeal followed.

Discussion. "A defendant's motion for a new trial that

seeks to withdraw a guilty plea is addressed to the plea judge's

sound discretion, and we review the judge's decision for abuse

of discretion or clear error of law." Commonwealth v. Hart, 467

1 The facts are taken from a summary of the police report read at the guilty plea hearing.

2 Mass. 322, 324 (2014). At a plea hearing, the judge shall "make

findings as to . . . whether there is an adequate factual basis

for the charge[s]." Mass. R. Crim. P. 12 (c) (5), as amended,

489 Mass. 1501 (2022). "The plea judge need not determine that

the defendant is guilty of the crime[s] charged, but 'only

whether the evidence which [the judge] had heard, plus any

information [the judge] has obtained in the plea hearing, is

sufficient, when considered with reasonable inferences which may

be drawn therefrom, to support the charge[s] to which the

defendant is offering a plea of guilty.'" Commonwealth v.

Donald, 101 Mass. App. Ct. 383, 385 (2022), quoting Commonwealth

v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015).

In the police report, the officers wrote that the defendant

was "charged with two counts of 272/16 Open and Gross Lewdness,

one count for each victim." We agree with the defendant that

this reason for charging the defendant with two counts was

erroneous. As determined by this court in Commonwealth v.

Botev, 79 Mass. App. Ct. 281, 288 (2011), a defendant may be

convicted only once for each act of open and gross lewdness,

regardless of the number of victims involved in each incident,

because G. L. c. 272, § 16, "routinely is applied in a manner

consistent with the view that the unit of prosecution is

conduct-based and not victim-based." We reasoned that a victim-

based approach could lead to absurd results; for example, a

3 person who runs naked onto the field at Fenway Park could be

charged with 37,000 counts of open and gross lewdness. Id. at

288-289.

Following this reasoning, the defendant urges us to arrive

at the same result we did in Botev and vacate one of the

defendant's guilty pleas. He argues that, like in Botev, 79

Mass. App. Ct. 289, here "[t]he only conceivable rationale for

the two separate convictions is the one we . . . reject, i.e.,

that there were two victims." On this point, we disagree.

Although the police made an error in why they initially charged

the defendant with two counts of open and gross lewdness, the

defendant did not move to dismiss the charges for lack of

probable cause, see Commonwealth v. Humberto H., 466 Mass. 562,

566 (2013), and in fact, pleaded guilty to both charges.

Regardless of the number of victims and why police

initially charged the defendant with two counts, the plea judge

heard facts that amply supported the inference that the

defendant committed at least two separate offenses of open and

gross lewdness. See Commonwealth v. Dykens, 473 Mass. 635, 640

(2016) ("Where a single statute is involved, we must decide

whether two [or more] discrete offenses were proved under that

statute rather than a single continuing offense" [quotation and

citation omitted]); Botev, 79 Mass. App. Ct. at 289 ("where the

Commonwealth did not establish two distinct, conduct-based

4 offenses, the judge could not have decided the case on that

basis"). The first offense was the initial exposure to the

victims, when the defendant claims he crouched down to look at a

pair of shoes and his genitals were exposed.2 The second offense

occurred when, having stood up again, the defendant pulled his

pants down and showed the victims his penis.

The judge could have viewed the defendant's conduct, at a

minimum, as "two distinct, conduct-based offenses." Botev, 79

Mass. App. Ct. at 289. Though the offenses happened in the same

store, they occurred in separate parts of the store, the first

in the shoe aisle and the other episodes across the rest of the

store. More importantly, the defendant's conduct was different;

in the first incident the defendant was crouched down when he

showed his genitals, while in the second set of incidents, the

defendant repeatedly pulled his shorts all the way down as he

was following the victims across the store.

On the facts in the record and to which the defendant

agreed, these instances are sufficiently distinct to have

accepted the defendant's guilty pleas to two counts of open and

gross lewdness. Additionally, the defendant has failed to show

that he pleaded guilty based on the wrong unit of prosecution.

2 Any ambiguity in the defendant's initial statement to the police that he only "may" have exposed himself was eliminated by his guilty plea.

5 Accordingly, we discern no abuse of discretion in the motion

judge's denial of the defendant's motion to vacate one of the

two convictions in this case.

Order denying motion to vacate guilty plea affirmed.

By the Court (Ditkoff, Hand & D'Angelo, JJ.3),

Clerk

Entered: May 5, 2023.

3 The panelists are listed in order of seniority.