Opinion
18-P-996
03-31-2020
COMMONWEALTH v. Dustin K. KONAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of one count of rape in violation of G. L. c. 265, § 22 (b ). This court affirmed his conviction in an unpublished memorandum and order pursuant to rule 1:28. See Commonwealth v. Konan, 83 Mass. App. Ct. 1136 (2013). He subsequently brought a motion for a new trial alleging among other things that he was entitled to a new trial due to an erroneous jury instruction. A judge of the Superior Court denied the motion, concluding that the defendant had waived his right to challenge the jury instruction when failing to raise it either at trial or by his direct appeal. The judge declined to hear the issue on the ground that "this is not one of ‘those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.’ " Commonwealth v. Watson, 409 Mass. 110, 112 (1991). The defendant has appealed raising only the issue with respect to the jury instruction. Notwithstanding the judge's decision not to evaluate the issue, as no objection was made to the instruction at trial, we review the claim to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).
According to the transcript the trial judge instructed erroneously that "if you find that the Commonwealth has proved beyond a reasonable doubt that the complainant was so impaired so as to be incapable of consenting ... and if you further find that the Commonwealth has proved beyond a reasonable doubt that the defendant knew or reasonably should have known that the complainant's condition rendered her incapable of consenting, then the Commonwealth has proved the element of lack of consent, and, on the element of force, the Commonwealth need not prove the defendant used the degree of force necessary to accomplish the sexual intercourse, that is to effect penetration" (emphasis added). The word "not" highlighted in the quotation was in error. It should have been, as it appeared in the written instructions, "only."
Although those written instructions were, indeed, provided to the jury for use during deliberations, the jury were instructed that they were not a replacement for the oral instructions, and, assuming that the transcript accurately reflects the instructions as given orally, this instruction did, as the defendant contends, erroneously relieve the Commonwealth of its responsibility to demonstrate beyond a reasonable doubt that the defendant used the degree of force necessary to effect penetration.
We have previously held that such errors are not structural, and do not always require reversal. "Erroneous instructions that allow the jury to convict without finding an essential element of an offense create a substantial risk of a miscarriage of justice unless either the element at issue can be ‘ineluctably inferred’ from the evidence such that the jury were ‘required to find’ it, or the jury's verdicts on the other counts on which the defendant was convicted compel the conclusion they ‘necessarily found’ the element on which they were not instructed" (citations omitted). Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 412 (2019).
In this case there is no substantial risk of a miscarriage of justice because the presence of sufficient force to accomplish penetration "can be ‘ineluctably inferred’ from the evidence." Commonwealth v. Azar, 435 Mass. 675, 688 (2002). The Commonwealth asserts that the defendant took the stand and testified that he engaged in consensual sex with the victim. The appellant, here the defendant, bears the burden of presenting a record that is adequate for appellate review and correcting the record if there is information missing that is necessary to his claims. See Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 349 (2005). As the defendant has not provided us with a complete transcript -- indeed, although he included the victim's testimony, he completely omitted his own testimony -- or otherwise disagreed with the Commonwealth's characterization, we therefore must assume that the Commonwealth's characterization is correct. This means that all of the evidence put on both by the Commonwealth, in the form of the victim's testimony, and by the defendant, in the form of his own testimony, was that penetration occurred. Because the evidence thus required the jurors to find that penetration occurred and that, therefore, sufficient force was used in the circumstances of this case to meet the Commonwealth's burden, the error created no substantial risk of a miscarriage of justice.
Judgment affirmed.