Opinion
21-P-548
10-12-2022
COMMONWEALTH v. ALEXANDER OSHER.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of one count of rape, G. L. c. 265, § 22 (b), one count of assault with intent to rape, G. L. c. 265, § 24, and two counts of indecent assault and battery, G. L. c. 265, § 13H.On appeal, the defendant contends that (1) the motion judge erred in denying his pretrial motion to sever the indictments, (2) the evidence was insufficient to support his convictions of rape and assault with intent to rape, and (3) the trial judge erred in permitting prejudicial first complaint evidence. We affirm.
The jury acquitted the defendant of one count of indecent assault and battery.
Discussion.
1. Joinder.
The defendant was tried for sexually assaulting five different women on five different occasions, each within the context of a massage therapy session. He argues that the motion judge (who was not the trial judge) erred in denying his motion to sever the five indictments, or, at a minimum, by failing to sever the rape and assault with intent to rape charges from the three charges of indecent assault and battery because they were unduly prejudicial. We disagree.
The decision of whether to sever indictments lies within the sound discretion of the judge, and this court does not reverse that decision absent clear abuse of that discretion. Commonwealth v. Hall, 485 Mass. 145, 165 (2020). To prevail on a claim of misjoinder, the defendant must demonstrate that: (1) the offenses were unrelated, and (2) the "prejudice from joinder was so compelling that it prevented him from obtaining a fair trial." Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).
"Mass. R. Crim. P. 9 (a)[, 378 Mass. 859 (1979),] permits the joinder of 'related offenses' for trial 'if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan'" (citation omitted). Commonwealth v. Spray, 467 Mass. 456, 468 (2014). "Factors a judge may consider in determining whether offenses are related include factual similarities, . . . closeness of time and space[, and] . . . whether evidence of the other offenses would be admissible in separate trials on each offense" (citation omitted) . Id. "Offenses are related if the 'evidence in its totality shows a common scheme and pattern of operation that tends to prove' each of the complaints" (citation omitted) . Id. at 469.
We discern no abuse of discretion in the motion judge's determination that the offenses here were related. The five offenses occurred over a span of less than three months between October 2016 and January 2017. Each offense took place in the same location and involved female patients who had sought massage treatment from the defendant for the first time. The defendant also employed a common plan or scheme in committing nearly each offense by manipulating the blanket or the victim's underwear to expose or provide access to the victim's vaginal or chest area. This constitutes a pattern allowing for the joinder of these related offenses. See Commonwealth v. Magri, 462 Mass. 360, 364-365 (2012).
The defendant has also failed to meet his burden of proving undue prejudice from the joinder. As noted by the motion judge, were the offenses tried separately, the evidence from the rape and assault with intent to rape charges would have been admissible in any individual trial to show intent, a common pattern or course of conduct, or absence of mistake or accident. See Commonwealth v. Mazariego, 474 Mass. 42, 56 (2016); Commonwealth v. Elliott, 87 Mass.App.Ct. 520, 524 (2015) ("The issue of prejudice largely turns on whether evidence of the other offenses would be admissible in separate trials on each offense"). The mere fact that "the defendant's chances for acquittal of [one of the charges] might have been better had the offenses been tried separately" is not enough to establish prejudice requiring severance (quotation and citation omitted). Spray, 467 Mass. at 469. "Rather, the defendant must show that a particular tactic or right was foreclosed by the joinder." Id. The defendant has not done so here. Furthermore, the jury acquitted the defendant of one of the three indecent assault and battery charges. "Such discernment by the factfinder in assessing the evidence is a strong indication that a misjoinder of offenses has not resulted in any actual prejudice to the defendant" (citation omitted). Id.
2. Sufficiency.
The defendant next argues that the trial judge erred in denying his motions for required findings of not guilty on the counts of rape and assault with intent to rape. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (motion for required finding views evidence in light most favorable to prosecution to determine whether any rational trier of fact could have found essential elements of offense beyond reasonable doubt). He contends that the Commonwealth provided insufficient evidence of (1) the element of force to convict him of rape and (2) his specific intent to commit the crime of assault with intent to rape. Again, we disagree.
a. Rape.
"To prove the defendant guilty of rape, the Commonwealth had to show that the defendant compelled the victim to submit to sexual intercourse by force or threat of force and against the victim's will." Commonwealth v. Gibson, 488 Mass. 854, 857 (2022), citing G. L. c. 265, § 22 (b). "Force can be actual physical force, nonphysical constructive force, or threat of force." Id." [A] ctual force is applied to the body, constructive force is by threatening words or gestures and operates on the mind" and may arise from "the circumstances or fear in which the victim is placed, the impact of those circumstances or fear on the victim's power to resist and the defendant's conduct" (citation omitted). Commonwealth v. Caracciola, 409 Mass. 648, 651-652 (1991).
We conclude that there was sufficient evidence to support the force element of rape. Here, the rape victim testified that, while the defendant was massaging her inner thigh, she "felt something swipe [her] genitals." Moments later, while massaging her other leg, the defendant moved her underwear to the side, exposing her vagina. She then "felt [the defendant] put his finger in and around [her] labia." Once she was able to remove her hand from underneath the blankets, the victim pushed the defendant's hand away to stop the touching. She explained at trial that she did not say anything in response to the defendant's conduct because she was "in shock" and was "very scared." This evidence was sufficient to satisfy the element of force required under G. L. c. 265, § 22 (b). See Commonwealth v. Feijoo, 419 Mass. 486, 493 (1995) (forcible rape where penetration occurred suddenly, without warning and without victim having opportunity to object).
b. Assault with intent to rape.
"The two elements of assault with intent to rape are an assault on the victim and a specific intent by the defendant at the time of the assault to rape the victim." Commonwealth v. Lahens, 100 Mass.App.Ct. 310, 314 (2021), quoting Commonwealth v. Martin, 447 Mass. 274, 287 n.9 (2006). Specific intent may be proved by circumstantial evidence. Martin, 447 Mass. at 287. "The inferences drawn need only be 'reasonable and possible.'" Commonwealth v. Berendson, 73 Mass.App.Ct. 395, 397 (2008), quoting Commonwealth v. O'Laughlin, 446 Mass. 188, 198-199 (2006).
Here, the Commonwealth presented evidence that the defendant tucked a blanket into the underwear of the victim of the assault with intent to rape, such that her vagina was exposed. See Commonwealth v. Nickerson, 388 Mass. 246, 252-253 (1983) (repositioning clothing to expose "virtually naked body" supports specific intent to rape). The victim testified that the defendant then touched her vagina twice under her underwear in a swiping motion, once while massaging her left leg and once while massaging her right leg. When the defendant touched the victim's vagina a second time, she sat up and grabbed the defendant's wrist to stop the touching. Viewing the evidence in the light most favorable to the Commonwealth, we conclude that this evidence, together with the evidence of the defendant's similar pattern and course of conduct during the other offenses, one of which involved rape by digital penetration, was sufficient to permit the jury to reasonably infer that the defendant intended to rape the victim. See Commonwealth v. Hyde, 88 Mass.App.Ct. 761, 767 (2015) (intent is often inferred "from all the facts and circumstances developed at the trial" [citation omitted]); Berendson, 73 Mass.App.Ct. at 399 (affirming conviction of assault with intent to rape where Commonwealth relied on evidence of prior rape against different victim, coupled with evidence of interrupted assault, to support finding of specific intent).
3. First complaint evidence.
Finally, the defendant argues that the trial judge erred in admitting first complaint evidence with respect to the victim of the assault with intent to rape. The evidence consisted of the victim's texts to her sister that said, among other things, "I think my masseuse tried to give me a happy ending." The defendant contends that this evidence was unduly prejudicial because it improperly "provided the greatest direct evidence" of his intent to rape her. We review the trial judge's decision to admit this evidence for abuse of discretion. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011) .
We conclude that the judge did not abuse his discretion in admitting in evidence of the victim's text messages, as they were admitted under the first complaint doctrine and not for the truth of what was stated. See Commonwealth v. Kennedy, 478 Mass. 804, 813-814 (2018). The trial judge gave the jury multiple limiting instructions articulating that the texts and first complaint testimony may only be used to assist the jury in determining the credibility of the victim's testimony about the assault and not to prove the truth of the allegations. See Commonwealth v. Lewis, 91 Mass.App.Ct. 651, 664 (2017) (jury presumed to follow judge's instructions in assessing first complaint evidence). Moreover, even assuming error, there was no prejudice to the defendant as he cannot show that the introduction of the text messages would have had an impact on the verdict, given the other evidence presented.
Judgments affirmed.
Lemire, Singh & Englander, JJ.
The panelists are listed in order of seniority.