Sex Crimes
Commonwealth v. Allen Costa – Docket No.: 1658 CR 0507
OPEN & GROSS: DISMISSED upon MOTION
OPEN & GROSS: DISMISSED upon MOTION
A woman approached Hanover Police Officers at Forge Pond Park and reported two incidents where she observed a man walking on the trail and the man was naked from the waist down. The woman provided police with a physical description of the male suspect. The police placed a trail camera in the area where the witness reported seeing the male naked from the waist down. According to the police report, the camera showed a male party (matching the witness’s description) walking on the trail wearing no pants on two separate occasions on 03/28/16 and 03/30/16. Subsequently, police conducted a stakeout where they hid in the woods in the area where the male party was seen walking naked from the waist down. According to the police report, one officer observed a male party (later identified as the defendant) walking on the trail wearing no pants or underwear with his penis and testicles completely exposed and the male suspect was swinging his penis side to side with his right hand. The officers emerged from the woods and arrested the Defendant at gun point. At the police station, officers showed the defendant two pictures from the trail camera and the defendant acknowledged that he was the person depicted in the photos. The police charged the defendant with 3 counts of Open and Gross Lewdness. Two of the charges stemmed from the two separate occasions where the trail camera showed the defendant naked from the waist down on 03/28/16 and 03/30/16.
Result: Attorney Patrick J. Noonan filed a Motion to Dismiss the two counts that were based on the camera footage of 03/28/16 and 03/30/16. Attorney Noonan argued that the offense of Open and Gross Lewdness requires that the defendant “expose his genitals to one or more persons” and the law requires that the illegal conduct occur “in the presence of another person.” Attorney Noonan argued that the two charges should be dismissed because there were no human being(s) present to observe the illegal conduct. Attorney Noonan argued that the only witness to the alleged offenses on 03/28/16 and 03/30/16 was the trail camera (an inanimate object) and not a human being. The Judge agreed with Attorney Noonan’s argument and dismissed the two counts that were based on the camera footage.
This Case in the News
Is public nudity lewd is no one sees it? Hingham judge says no. August 2, 2016 by Neal Simpson, The Patriot Ledger via The Enterprise. Excerpt: “The law requires that the person expose himself to a person – that there be a person present to see it,” Noonan told the Ledger. “What we have here is an inanimate object – a camera – and no human being there to see it.” “Judge Bradley agreed…”
Patrick Noonan Defends Man Caught Jogging Without Pants (Fox 25 News Video)
Commonwealth v. D.W. – Brockton District Court
OPEN & GROSS LEWDNESS: DISMISSED DURING TRIAL
An identified witness called police to report that she had observed a male party masturbating in his vehicle with his penis exposed. The witness told police that she was stopped at a red light. The witness stated that a vehicle was stopped next to her at the stop light. The witness stated that a male party in the vehicle next to her turned on his interior light, thrusted his hips upward, exposed his penis to her while masturbating. The witness stated that the vehicle cut her off and boxed her in preventing her from driving away. The witness stated that the male party motioned for her to follow him. The witness was able to maneuver her vehicle and drive away. The witness called 911 and provided police with the make, model, color and license plate of the vehicle. Police ran the vehicle’s registration and it came back to the Defendant. The witness provided a description of the Defendant as: white, late 30s to early 40s, heavy set, with a long strawberry-colored beard, and wearing a wool skull cap. The police administered a photo array to the witness and she positively identified the Defendant as the suspect. Prior to trial, Attorney Patrick J. Noonan was able to suppress the witness’ positive identification of the Defendant because the police conducted the procedure in an unduly suggestive manner.
Result: At trial, Attorney Patrick J. Noonan filed a Motion in Limine to exclude the witness from identifying the Defendant during her trial testimony. The Commonwealth argued that the witness was able to identify the Defendant based upon the observations she made of him during the incident. During the hearing, the witness testified that she was certain that the Defendant was the suspect based upon the observations she made of him during the incident. Attorney Patrick J. Noonan vigorously cross-examined the witness and showed that the witness’s identification was unreliable because she did not have a sufficient opportunity to observe the perpetrator at the time of the crime. At the conclusion of Attorney Noonan’s cross-examination, the judge ruled that the witness could not identify the Defendant as the perpetrator of the crime. As a result, the Commonwealth was forced to dismiss the case.
Commonwealth v. K.D. – Brockton District Court
LEWD & LASCIVIOUS CONDUCT: NOT GUILTY
A woman (alleged victim) called 911 to report that a woman in a second story apartment building was exposing her vagina and masturbating. The alleged victim was driving her teenaged daughter and her teenaged daughter’s friends to school. They went to the Dunkin Donuts drive thru. While placing their order in the drive-thru line, the alleged victim’s daughter directed her attention to the second story window in the apartment adjacent to the Dunkin Donuts. The alleged victim looked up into the window and saw a heavyset woman standing in the window naked from the waist down with her vagina exposed. The alleged victim beeped her horn so that the woman in the window would leave. When she beeped her horn, the alleged victim saw the woman in the window insert her fingers into her vagina and masturbate. The alleged victim immediately called 911. Upon arrival, police looked into the apartment window and a saw a heavy-set woman naked from the waist down. Police gained entry into the apartment. The Defendant was in the apartment. When speaking with the Defendant, police identified the Defendant as the person in the window naked from the waist down. Police observed that the Defendant matched the description given by the alleged victim. At trial, Attorney Patrick J. Noonan discredited the alleged victim. Attorney Patrick J. Noonan discovered that the alleged victim withheld the names and identities of percipient witnesses. That is, there were two other girls in the alleged victim’s vehicle that the alleged victim decided not to disclose to the police. At trial, the prosecutor introduced a photograph that one of the girls in the car had taken of the person in the window. The photo showed a leg propped up on the window sill. Attorney Patrick J. Noonan established that this photograph was provided to police shortly after the alleged incident and that it was not disclosed to the defense until the day of trial. Attorney Patrick J. Noonan argued that the Commonwealth made the decision to introduce a black and white copy of the photo when they should have introduced a color copy of the photo. The color copy was the best evidence and may have been exculpatory to the defense. Attorney Noonan questioned the government’s decision to introduce the black and white photo when they had the ability to introduce a color copy. Attorney Patrick J. Noonan argued that the Defendant did not have the intent to expose herself to the public. Attorney Noonan showed that the shades to the window were pulled down so the only thing visible was below the person’s waist. Attorney Noonan showed that the window had red curtains on both sides. Attorney Noonan argued that the Defendant desired privacy and took steps to ensure her privacy. Attorney Noonan argued that the Defendant’s exposure was negligent, not reckless.
Result: After a two-day jury trial, Attorney Patrick J. Noonan convinced the jury that the Defendant did not commit a sexual act in the apartment window and that the Defendant did not masturbate in the apartment window. Attorney Patrick J. Noonan won a Not Guilty verdict on the offense of Lewd, Wanton, and Lascivious Conduct.
Commonwealth v. F.P. – Quincy District Court
OPEN & GROSS LEWDNESS: NOT GUILTY
A woman (alleged victim) walked into the police station to report an incident that just happened in the parking lot of TJ Maxx. The alleged victim claimed that she parked her vehicle in the parking lot of the TJ Maxx. She stated that she parked next to the Defendant’s vehicle and their driver’s side doors were facing each other. The Defendant was sitting in his vehicle with the driver’s side window down. She claimed that she exited her vehicle and walked past the Defendant’s driver’s side window. She claimed that she looked down into the Defendant’s window and saw that he had an erect penis exposed through the zipper of his pants. At trial, Attorney Patrick J. Noonan discredited the alleged victim. The alleged victim testified that she went immediately into the TJ Maxx to report the incident to the manager. She testified that she provided the manager with the make, model, and license plate to the Defendant’s vehicle. She testified that she provided the manager with a physical description of the Defendant. She testified that the manager offered to escort her to her vehicle but she refused. She testified that the manager offered to call the police but she refused. At trial, Attorney Patrick J. Noonan called the TJ Maxx manager as a witness. The manager testified that he had no knowledge of receiving such a report and that he would remember receiving such a report. The manager testified that he had never met the alleged victim. This impeachment testimony discredited the alleged victim. Attorney Patrick J. Noonan thoroughly attacked the investigation conducted by police. The arresting officer testified that he interviewed the alleged victim for approximately 30 minutes. After interviewing the alleged victim, the arresting officer spoke with the Defendant in the lobby of the police station. The Defendant arrived to the police station before the alleged victim to report that a crazy woman falsely accused him of exposing his penis in the TJ Maxx parking lot. The arresting officer testified that he spoke to the Defendant for about 1-2 minutes and placed him under arrest. The arresting officer did not conduct any investigation other than speaking to the alleged victim. The arresting officer did not listen to what the Defendant came to the police station to report. The arresting officer made up his mind that the Defendant committed the crime after he spoke with the alleged victim. Because he rushed to judgment, the arresting officer did not conduct any investigation. Lastly, Attorney Patrick J. Noonan called the Defendant to testify on his own behalf. Defendant worked for the Department of Corrections for 37 years. Defendant was a veteran of the Air Force. Defendant testified that he went to the TJ Maxx to do some shopping. After shopping, Defendant went back to his vehicle and sat in the driver’s seat. Defendant drank a large ice coffee and ate a coffee roll while sitting in his driver’s seat. While eating and drinking in the driver’s seat, the alleged victim walked past his window and said, “Pull up your pants, you creep.” Defendant was shocked by the alleged victim’s accusation because he didn’t do anything wrong. Defendant went directly to the police station to report the false accusation. Attorney Patrick J. Noonan argued that the Defendant’s actions showed consciousness of innocence.
Result: After a two day jury trial, Attorney Patrick J. Noonan won a Not Guilty verdict on the felony offense of Open & Gross Lewdness. Attorney Noonan’s client was a 65 year-old retired state employee and a military veteran with no criminal record.
Commonwealth v. C.M. – Brockton District Court
OPEN & GROSS LEWDNESS: NOT GUILTY
Defendant was charged with the felony offense of Open & Gross Lewdness. The allegations were that the Defendant, a senior in high school, was sitting on the school bus on the way home from school when another student observed him expose his penis and masturbate on the school bus. There was evidence that the Defendant had previously masturbated on the school bus on approximately three prior occasions. One student told police that she observed the Defendant masturbate on the school bus on two separate occasions. Another student told police that she observed the Defendant masturbate on the school bus on at least one occasion. Prior to this incident, one student reported to the school that the Defendant masturbated in class. Defendant admitted to school officials that he did masturbate in class as reported. At trial, Attorney Patrick J. Noonan persuaded the trial judge to exclude these “prior bad acts” from evidence. As a result, the Commonwealth was prohibited from introducing any evidence of the prior instances in which the Defendant allegedly masturbated on the school bus and in class. At trial, Attorney Gerald J. Noonan cross-examined the alleged victim who claimed that she saw the Defendant’s penis exposed on the school bus, and that she observed the Defendant masturbating on the school bus. Attorney Gerald J. Noonan introduced into evidence a videotape of the actual bus ride and highlighted all the inconsistencies in the victim’s testimony in comparison to what was shown on the videotape. Attorney Gerald J. Noonan pointed out that the victim did not look over at the Defendant during the bus ride, which was contrary to her trial testimony. Attorney Noonan established that the victim looked out the window or looked straight ahead during the bus ride and didn’t look over at the Defendant as she claimed. The victim testified that she looked over at the Defendant and saw him masturbate when a student behind her tapped her on the shoulder. When she was tapped on the shoulder she turned her head to say hello to the student behind her and that’s when she observed the Defendant masturbating. Attorney Noonan impeached the victim by pointing out that the student behind her pulled her hair and didn’t tap her on the shoulder. Attorney Noonan established that the only time she looked over at the Defendant was when the student behind her pulled her hair and she reacted by turning her head in the Defendant’s direction. Attorney Noonan established that it was in a split-second (when she turned her head in reaction to her hair being pulled) that she allegedly saw the Defendant masturbating. Attorney Gerald J. Noonan pointed out that the victim did not tell anybody on the bus that she saw the Defendant’s penis or him masturbating. Defendant got off the school bus before the victim yet the victim did not report the incident to anyone on the school bus after the Defendant got off the bus. The victim testified that she was offended by what she saw. However, as Attorney Noonan pointed out, the videotape did not show any reaction from the victim after she allegedly saw another student expose his penis and masturbate.
Result: At the conclusion of the Commonwealth’s evidence, Attorney Gerald J. Noonan moved the judge for a Required Finding of Not Guilty arguing that the Commonwealth failed to present sufficient evidence to support each element of the offense. The trial judge agreed and entered a required finding of Not Guilty on the felony offense of Open & Gross Lewdness.
Commonwealth v. T.Z. – Wareham District Court
OPEN & GROSS LEWDNESS: DISMISSED
Three witnesses reported to police that they observed the Defendant in his front yard with no pants on and his genitals and bare butt exposed. A neighbor called 911 and the Defendant was placed under arrest and charged with Open and Gross Lewdness, a felony sex offense.
Result: Attorney Patrick J. Noonan convinces Commonwealth to reduce the felony sex offense of Open & Gross Lewdness to the lesser-included misdemeanor offense of Indecent Exposure and place his client on probation at the conclusion of which the charge will be dismissed so long as the client complies with the terms of his probation.
Commonwealth v. B.S. – Brockton Superior Court
RAPE BY FORCE: NOT GUILTY
INDECENT ASSAULT & BATTERY: NOT GUILTY
Defendant was indicted for Rape by Force and Indecent Assault & Battery stemming from allegations that he forcibly raped and sexually assaulted his ex-girlfriend. Attorney Gerald J. Noonan and Patrick J. Noonan tried the case before a jury. At trial, Attorney Gerald J. Noonan and Attorney Patrick J. Noonan argued that the Defendant had consensual sex with the alleged victim. Attorney Noonan presented evidence of two percipient witnesses that were sleeping on a futon approximately three-feet away from the bed where the rape allegedly occurred. Attorney Noonan elicited testimony from these percipient witnesses that they did not hear the alleged victim screaming, crying, or yelling when they were in the futon three feet away, which directly contradicted the alleged victim’s testimony.
Result: After a three-day jury trial, Attorney Gerald J. Noonan and Attorney Patrick J. Noonan obtained Not Guilty verdicts on all indictments, which include Rape by Force and Indecent Assault & Battery, saving their client from a lengthy prison sentence and having to register as a sex offender. “East Bridgewater man found not guilty in Bridgewater Rape.”
Commonwealth v. V.S. – Dedham District Court
INDECENT ASSAULT & BATTERY: REDUCED TO NON-SEXUAL MISDEMEANOR OFFENSE
The alleged victim (age 16) accused the Defendant (her brother-in-law) of sexually abusing her on three different occasions beginning when she was 11 years-old. Prior to trial, the Commonwealth offered to reduce the felony sex offense of Indecent Assault & Battery to a simple misdemeanor Assault & Battery, which is a non-sexual offense. Had the Defendant been convicted of the felony sexual assault, he would have to register as a sexual offender and face the possibility of prison time. Defendant was placed on probation for the simple misdemeanor assault and battery. Defendant was placed on probation for the misdemeanor Assault & Battery. He returned to his home in Texas where he lives with his wife and child.
Result: Commonwealth reduces felony sex offense of Indecent Assault & Battery to a misdemeanor Assault & Battery, which is a non-sexual offense, saving his client possible jail time and having to register as a sex offender.
Commonwealth v. C.P. – Roxbury District Court
OPEN & GROSS LEWDNESS: DISMISSED PRIOR TO ARRAIGNMENT
RESISTING ARREST: DISMISSED PRIOR TO ARRAIGNMENT
Client, 21 year-old college student, was observed by Boston Police urinating on the Fenway Park in front of hundreds of people who were exiting the Jay-Z / Justin Timberlake concert. Officers heard pedestrians saying, “Ew, look at that. He’s peeing.” Officers observed the Defendant step away from the fence and expose his private parts to other pedestrians. Officers ordered the Defendant to stop but he took off running and was eventually apprehended. Attorney Gerald J. Noonan was successful in dismissing the criminal charges prior to his client’s arraignment and these embarrassing and serious charges will not appear on his permanent record.
Result: Attorney Gerald J. Noonan gets felony sex offense dismissed prior to arraignment saving his client from having a felony sex offense on his record.
Commonwealth v. G.A. – Orleans District Court
INDECENT ASSAULT & BATTERY: NOT GUILTY
INDECENT ASSAULT & BATTERY: NOT GUILTY
Client, gas station owner and father of two children with no criminal record, was charged with two counts of Indecent Assault & Battery stemming from allegations from a former tenant in his apartment building in which she alleged that on diverse dates from 2008-2010 the Defendant sexually assaulted her including one incident where he allegedly pinned down the alleged victim and forcibly pressed his erect penis into her buttocks.
Result: After a three-day jury trial, Attorney Gerald J. Noonan and Attorney Patrick J. Noonan got Not Guilty verdicts on the felony sex offenses, saving their client from possible jail time and having to register as a sex offender.