Opinion
No. 10–P–26.
2012-05-18
COMMONWEALTH v. Howard THOMPSON.
By the Court (CYPHER, VUONO & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury in the Superior Court convicted the defendant of rape, assault and battery causing serious bodily injury, and assault and battery.
In a subsequent jury-waived trial, the judge convicted the defendant on two habitual offender indictments. The defendant appeals, contending that the judge erred by (1) denying his motion for a required finding of not guilty on the indictment charging him with assault and battery causing serious bodily injury; (2) instructing the jury on capacity to consent; and (3) finding him guilty of being a habitual offender on insufficient proof of his prior convictions. We conclude that, apart from the question whether the evidence of the victim's impairment was sufficient to warrant an instruction on incapacity, the instruction given was flawed and, as a result, there was a substantial risk of a miscarriage of justice. Because the case may be retried, we address the defendant's other claims of error as well.
The jury acquitted the defendant of two counts of witness intimidation.
Background. The charges in this case arose from two violent encounters between the defendant and his spouse, whom we shall call Julia French.
The jury could permissibly have found that during the course of an argument on October 28, 2009, the defendant threw French on the ground and then attempted to smother her. As French tried to get up, the defendant delivered a “head butt” to her forehead. French called 911, and the police responded. French was taken to a nearby hospital where she received stitches for a five-centimeter cut above her left eyebrow. About two months later, in the early morning hours of December 10, 2009, the defendant, who at that time resided in a shelter in Boston, entered French's one-room apartment and forced French to have anal intercourse. At trial, the defendant claimed that the intercourse was consensual, while French testified that she did not consent to the sexual encounter. She explained that she had been sleeping and awoke when the defendant entered the room, stating that he was there to pick up some belongings. French was still in bed (or had returned to bed) and was going back to sleep when the defendant forced himself upon her. French told the defendant, “no,” and tried to push him away but could not do so because of the defendant's size and because she had taken a “pill for depression,” which made her feel dizzy and unable to resist. Afterward, French cleaned herself in the bathroom and realized she was bleeding. French called the police and reported the rape.
A pseudonym. We identify French as a female because she became transgender in 2007 and has considered herself to be a woman since that time.
1. Sufficiency of the evidence. The defendant's conviction of assault and battery causing a serious bodily injury stemmed from the injury French sustained to her forehead during the altercation on October 28. The injury left French with a permanent scar. The statute defines “serious bodily injury” as follows: “bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.” G.L. c. 265, § 13A( c,) inserted by St.2002, c. 35, § 1. The Commonwealth proceeded on the theory that the scar on French's forehead amounted to a “permanent disfigurement.”
The defendant concedes that the injury caused a permanent scar, but claims that evidence of the scar was insufficient to permit a finding of “disfigurement” beyond a reasonable doubt. We disagree. The jury viewed the scar at trial and also saw photographs of French's forehead taken before and after she was injured. One of the photographs in evidence (exhibit 16) shows the scar, which, contrary to the defendant's assertion, is much worse than a mere “wrinkle.” Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), the evidence of the scar was sufficient to permit a rational trier of fact to infer beyond a reasonable doubt that the injury in question amounts to permanent “disfigurement.”
To the extent that the defendant argues the jury was not properly instructed on the definition of “disfigurement,” he fares no better. There was no request for a specific instruction on this issue, nor did the defendant object to the instruction as given. Moreover, we see no ambiguity in the term “disfigurement,” which is commonly defined as “impair [ment] by deep and persistent injuries.” Merriam–Webster's Collegiate Dictionary 358 (11th ed.2005). See Sullivan v. O'Conner, 363 Mass. 579, 581, 296 N.E.2d 183 (1973) (in which judge in medical-malpractice case instructed the jury with no objection that a disfigurement was “any change of appearance for the worse”).
2. Jury instruction on capacity to consent. Upon the Commonwealth's request, the judge instructed the jury as to capacity to consent as follows: “Furthermore, if by reasons of sleep, or intoxication, or drunkenness, or stupefaction, or unconsciousness, or helplessness, a person is incapable of consenting, an act of sexual intercourse occurring with that person during such incapacity is without the valid consent of the incapacitated person. In such cases, the amount of force required may be only that sufficient to affect the act of intercourse.” Defense counsel objected on the grounds that the evidence of French's impairment was not sufficient to warrant the instruction. On appeal, the defendant also argues, for the first time, that the instruction was erroneous because it did not clarify the Commonwealth's burden of proof regarding the requisite degree of the victim's impairment or address the issue of the defendant's awareness of French's possible incapacity, as required by Commonwealth v. Blache, 450 Mass. 583, 597–598, 880 N.E.2d 736 (2008).
We review a challenge to a jury instruction raised for the first time on appeal under the standard of substantial risk of a miscarriage of justice. See Commonwealth v. Chapman, 433 Mass. 481, 489, 744 N.E.2d 14 (2001).
The question whether the evidence supported an instruction on capacity to consent is a close one. Although there was some evidence of French's impairment (French testified that she was trying to sleep and had taken medication), the Commonwealth did not explicitly seek to satisfy the element of lack of consent by proof that French was incapacitated. That theory was not presented in the prosecutor's opening statement nor was it addressed in closing argument. In any event, we need not decide whether the instruction was warranted because we agree with the defendant that the instruction was erroneous, and a new trial is required. If, on retrial, the Commonwealth proceeds on a theory of incapacitation, the trial judge is free to determine anew whether the evidence warrants an instruction.
As to the instruction itself, once the jury was permitted to base the rape conviction on evidence that lack of consent could be satisfied by a finding of incapacity, they also should have been instructed that it was the Commonwealth's burden to establish beyond a reasonable doubt that French was “ so impaired [by sleep or medication] as to be incapable of consenting to intercourse” (emphasis added), and that the Commonwealth must prove that the defendant knew or reasonably should have known about French's incapacity. Commonwealth v. Blache, 450 at 591–592, 880 N.E.2d 736. Even though French's ability to consent to sexual intercourse was not a central issue in the case, with the fact of intercourse conceded, lack of consent was the principal contested issue before the jury. In these circumstances, we conclude that the erroneous instruction created a substantial risk of a miscarriage of justice.
3. Habitual offender conviction. The defendant claims that he was improperly convicted as a habitual offender because the Commonwealth failed to prove that he was twice committed to prison. See G.L. 279, § 25. The dispute centers on the defendant's prior conviction of breaking and entering in the nighttime for which the defendant received a five-to-seven year prison sentence. The defendant argues that because the Commonwealth did not introduce a certified copy of that conviction, the evidence was insufficient. However, contrary to the defendant's assertion, the Commonwealth was not required to present a certified copy of conviction to meet its burden. Here the Commonwealth sought to prove the conviction and resulting prison term with testimony from the keeper of the records of the Department of Correction and documents contained within the defendant's “pen pack,” which noted the defendant's conviction and incarceration. There was no error.
The judgment on the charge of rape is reversed and the verdict is set aside. We also reverse the judgment and set aside the finding on the charge of being a habitual offender that was premised on the rape conviction. The remaining judgments are affirmed.
So ordered.