Change covers man in thong on Esplanade

New lewd-behavior trial possible

An Arlington man convicted of lewd behavior for strolling the Esplanade in a black thong is entitled to a new trial thanks to a change in state law.

The state Appeals Court tossed Dmytro Taranovsky’s 2016 guilty finding for open and gross lewdness and lascivious behavior for which he received probation because four months later the state Supreme Judicial Court updated the law for the first time in 230 years to broaden who must be alarmed and shocked by an individual’s exhibition.

“Under these circumstances, we conclude that there was a substantial risk of a miscarriage of justice,” the appellate judges’ decision stated in favor of Taranovsky, 34.

Jake Wark, spokesman for Suffolk District Attorney Daniel Conley, said, “Prosecutors are reviewing the decision to determine whether further appellate review is appropriate. Given the totality of evidence from witnesses and photographs, however, the case could go to a jury again.”

Taranovsky was arrested by state police on Aug. 9, 2015, after a Waltham woman enjoying a cruise on the Charles River with her father and friends spotted — and subsequently photographed — Taranovsky walking near the Hatch Shell clad only in a thong with his buttocks exposed.

Natalie Mardoyan also noticed two children on scooters looking in his direction.

Mardoyan testified before Boston Municipal Court Judge Mark H. Summerville she was “shocked” and “just a little disgusted,” according to the appellate justices.

Taranovsky told the arresting trooper he was sunbathing.

Summerville instructed the jury on open and gross lewdness and lascivious behavior using the state’s centuries-old statute. But the law was strengthened in January 2017 when the state’s high court ruled in Commonwealth vs. Lawrence F. Maguire that it was “incumbent on the Commonwealth” to prove in future cases that not only did a victim endure “alarm” and “shock,” but that any reasonable person in the victim’s shoes would have reacted the same way.

Assistant Suffolk District Attorney Dara Z. Kesselheim stated in a brief that Taranovsky’s argument for having the revised law apply to him retroactively was “as insubstantial as the garb he wore on the day in question.”

Summerville, she said, “had a duty to instruct the jury clearly and correctly as to the law applicable to the issues in the case. He did so. He was not required to predict the future.”

Neither Taranovsky nor his attorney could be reached for comment.