Massachusetts Open and Gross Lewdness Charge Reduced to Lewd and Lascivious Conduct; Case Continued Without a Finding

Our client is a local artist who owns several galleries throughout New England. Nearly a year ago, he was photographing himself nude in a large rural public park. He had positioned a tripod next to his vehicle and used a timer to take several photographs of himself posing on a fence in the park.

An adjacent property owner captured the activity on a Ring security camera. After reviewing the footage, the property owners contacted the police. Using a description of the vehicle and the individual involved, police subsequently identified and apprehended our client.

He was charged with open and gross lewdness and lascivious behavior, a felony under Massachusetts General Laws, Chapter 272, Section 16.

Attorney Stephen Neyman was retained to defend him.

Following several months of negotiations, Attorney Neyman persuaded the district attorney to reduce the original felony charge to lewd and lascivious conduct under G.L. c. 272, § 53. The court continued the case without a finding (CWOF) and imposed administrative probation. Assuming successful completion of the probationary period, the case will be dismissed in three months.

Why the Open and Gross Lewdness Charge Was Reduced

One of the most important aspects of this case involved the distinction between open and gross lewdness under G.L. c. 272, § 16, and lewd and lascivious conduct under G.L. c. 272, § 53.

Massachusetts courts have recognized that these are distinct offenses with different legal elements. Attorney Neyman presented the prosecutor with cases that distinguish this case from those where the conduct constituted open and gross lewdness. See Commonwealth v. Blackmer, 77 Mass. App. Ct. 474 (2010). Attorney Neyman also referred the district attorney to the Massachusetts District Court Model Jury Instructions that, in this case, also supported a reduction of the charges. 

The prosecutor ultimately agreed to reduce the felony charge, resulting in a substantially more favorable disposition.

Why a Continuance Without a Finding Was a Favorable Result

A continuance without a finding, commonly called a CWOF, is a disposition available in Massachusetts criminal cases.

Rather than entering a guilty finding, the court continues the case for a specified period and imposes probationary conditions. When the defendant successfully completes probation, the case is dismissed without a conviction.

Here, the probationary period is only three months.

For this particular client, this was an especially favorable outcome because the disposition avoided a criminal conviction and provided a relatively short period before dismissal.

Could This Case Have Been Tried?

Yes. Attorney Neyman believed that the evidence presented significant legal issues that could have resulted in an acquittal or a required finding of not guilty.

Nevertheless, the decision whether to proceed to trial belongs to the client. After discussing the available options, the client elected to accept the negotiated disposition rather than exercise his constitutional right to trial.

The result provides another example of why careful legal analysis and effective negotiations with prosecutors are important components of Massachusetts criminal defense representation.

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