Opinion
14-P-1031
12-29-2015
COMMONWEALTH v. JASON CIAMPA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a bench trial, the defendant, Jason Ciampa, was convicted of rape, in violation of G. L. c. 265, § 22(b); indecent assault and battery, in violation of G. L. c. 265, § 13H; and assault and battery, in violation of G. L. c. 265, § 13A. On appeal, the defendant contends that (1) the convictions of indecent assault and battery and assault and battery are duplicative of the rape conviction, and (2) there was insufficient evidence to prove that the defendant was criminally responsible at the time the crimes were committed. We affirm.
Duplicative convictions. Indecent assault and battery and assault and battery are both lesser included offenses of rape. See Commonwealth v. Mamay, 407 Mass. 412, 418 (1990) (indecent assault and battery); Commonwealth v. Johnston, 60 Mass. App. Ct. 13, 22 (2003) (assault and battery). It is well settled, however, that convictions of each offense -- rape, indecent assault and battery, and assault and battery -- may all stand where the acts supporting the convictions are separate and distinct. See Commonwealth v. King, 445 Mass. 217, 225 (2005), citing Commonwealth v. Mamay, supra.
In a bench or jury trial, it is for the judge to decide as a matter of law whether the evidence permits the conclusion that a defendant "has committed actions that are sufficiently separate and distinct as to factually comprise different crimes." Commonwealth v. Figueroa, 471 Mass. 1020, 1021 (2015), quoting from Commonwealth v. Suero, 465 Mass. 215, 221-222 (2013). It is for the fact finder to then determine whether the defendant committed the separate and distinct acts. Ibid. See Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 529-530 (2011). "As this was a bench trial, we presume that the judge instructed himself correctly on the law." Id. at 530.
Viewing the evidence in the light most favorable to the Commonwealth, id. at 529, the judge as fact finder could have found the following. On January 19, 2005, the victim, a pretrial detainee named Edgar, was placed in a jail cell with the defendant. Shortly after falling asleep that night, Edgar awoke when his boxer shorts were pulled down to his knees and the defendant had grabbed Edgar's penis, "holding it tight" and "motioning [it] back and forth." The defendant then forced two fingers into Edgar's rectum and rotated them while holding the penis with his other hand. After Edgar defecated on the defendant's fingers, the defendant "smacked [Edgar] across the face" with the hand that had held his penis.
A pseudonym.
The defendant claims that the acts here occurred either simultaneously or so close in time as to constitute a single act. "An indecent contact which is separate from and not incidental to the act of penetration does not merge with the crime of rape to constitute but a single offense any more than a second penetration of the same victim during the same criminal episode constitutes but one rape." Commonwealth v. Fitzpatrick, 14 Mass. App. Ct. 1001, 1003 (1982) (separate acts where victim was forced to perform fellatio on defendant and "either during or after that act," defendant placed his finger on victim's vagina, id. at 1001-1002). Grabbing Edgar's penis and moving it back and forth was not incidental or necessary to the act of penetrating Edgar's rectum, even if the acts occurred at the same time. See Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 273 (2013) (rape and indecent assault and battery are separate and distinct acts where "during the rape, the defendant instructed [the victim] to lift her shirt up, and then he himself lifted her bra and licked her breast"). Contrast Commonwealth v. Suero, 465 Mass. at 220-221 (moving of victim's underwear to the side was incidental and necessary to rape, thus indecent assault and battery duplicative of rape). Nor was hitting Edgar on the mouth -- the evidence supporting the assault and battery conviction -- incidental or necessary to the penetration. See Commonwealth v. Johnston, 60 Mass. App. Ct. at 22 (pulling victim's hair "factually distinct" from raping victim).
Based on the testimony, the acts began sequentially -- the defendant first grabbed the penis, then penetrated the victim. However, even if the acts had occurred simultaneously, our decision would be the same. See, for example, Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 697 (2009), where we stated that time is only one factor when determining whether acts are separate and distinct; we also look to other factors, such as the form of conduct. "Different phases of a single attack can be distinguished as separate and distinct." Commonwealth v. Jackson, 80 Mass. App. Ct. at 530.
The acts supporting each conviction here were separate and distinct. There was no error.
Criminal responsibility. The judge found that the defendant was mentally ill, but criminally responsible. The defendant principally argues that the presumption of sanity was rejected by the fact finder when the judge found that the defendant suffered from mental illness at the time the crimes were committed. Without the presumption of sanity, the defendant asserts, the Commonwealth is unable to meet its burden to show that he was unable to conform his conduct to the requirements of law. We disagree. Even if the presumption of sanity had dissipated, a question we do not decide, the evidence was sufficient to prove sanity beyond a reasonable doubt.
The defendant acknowledges that the Commonwealth proved beyond a reasonable doubt that he did not lack the substantial capacity to appreciate the criminality of his conduct.
"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law." Commonwealth v. Rasmusen, 444 Mass. 657, 662 (2005), quoting from Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). "When a defendant claims that he is not criminally responsible for his acts, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant is sane." Ibid., quoting from Commonwealth v. Kappler, 416 Mass. 574, 578 (1993).
Mental illness and criminal responsibility (sanity) are separate and distinct concepts. Commonwealth v. Zagrodny, 443 Mass. 93, 108 (2004) ("[N]ot every defendant suffering from . . . mental illness lacks criminal responsibility for his acts"). That is, a defendant may suffer from mental illness and still be legally sane under the rubric spelled out in Commonwealth v. McHoul, supra. See Commonwealth v. Berry, 457 Mass. 602, 612 (2010). The judge was well aware of this distinction, and questioned the defendant's expert as to where to draw the line between the two. We assume that the judge correctly instructed himself on the law. See Commonwealth v. Healy, 452 Mass. 510, 514 (2008).
While there was competing evidence from experts as to the extent of the defendant's mental illness, there was ample support in the record to prove beyond a reasonable doubt that the defendant did not lack the substantial capacity to conform his conduct to the requirements of law. Edgar testified that the defendant told Edgar "that he [the defendant] wasn't going to fuck [Edgar] at the time because [the defendant] wasn't going to leave no evidence." The judge asked the defendant's expert if he "[w]ould . . . tend to think that [the defendant] did appreciate the wrongfulness if [the defendant] said that." The defendant's expert responded, "I think if somebody said that, it would be pretty clear that they appreciated the wrongfulness, yes." The Commonwealth's expert testified that the statement, if made, "would not only indicate substantial capacity to appreciate wrongfulness but pretty substantial capacity to conform behavior to the circumstances in a way that served his own interests."
Furthermore, the defendant's expert testified that the defendant told him that he (the defendant) would not have committed the acts had a correctional officer been monitoring. Although the expert qualified that testimony by stating that this statement did not "entirely reflect a complete picture of [the defendant's] state of mind at the time," the judge was permitted "to believe such portions of the expert['s] testimony as [he] deemed credible and reject the rest." Commonwealth v. Kappler, 416 Mass. at 584.
There was additional evidence of the defendant's ability to conform his conduct to the requirements of the law, including testimony that the defendant had thought about approaching others in the jail but worried that he would be assaulted if he did so. The Commonwealth's expert opined that the defendant chose Edgar because he "seemed vulnerable, young and I think [the defendant] made the calculation that [Edgar] wasn't going to say anything." Furthermore, a recording of an interview between the defendant and a deputy sheriff who was investigating the crimes was admitted at trial, during which the defendant stated that "[he] bet [he could] beat it."
The interview took place on January 21, 2005, two days after the crimes took place.
The judge, sitting as finder of fact, determined that the defendant's "mental illness [did not] deprive [him] of the substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the law." "[T]he fact finder may infer sanity from the 'facts underlying the crime and evidence of [the defendant's] actions before and after the crime.'" Id. at 579 (citation omitted). The evidence of sanity was sufficient.
Judgments affirmed.
By the Court (Kafker, C.J., Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 29, 2015.