Opinion
21-P-281
05-19-2022
COMMONWEALTH v. RONJAN J. JOHNSON
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
A District Court jury convicted the defendant of assault and battery on a family or household member. See G. L. c. 265, § 13M. On appeal, the defendant contends that the judge erred in admitting evidence of uncharged conduct and challenges the sufficiency of the evidence. We affirm.
The defendant was acquitted of strangulation or suffocation.
Background.
The defendant and the victim had known each other for fifteen years and had a child together. After a short marriage that ended in divorce, they continued to have a sexual relationship. In May 2019, the defendant and the victim planned to meet at a hotel to engage in sexual intercourse. Prior to the meeting, they discussed -- in explicit terms -- the type of encounter that they anticipated. After they arrived at their hotel room, they began to have sex. It was "a little rough, but that was part of the plan." At one point, however, when the defendant was positioned behind the victim, the defendant "put an arm around [the victim's] neck." The victim, "gasping for air," told the defendant to stop choking her but the defendant did not stop. The victim reported the assault to the police a few hours later.
The defendant testified on his own behalf at trial. His version of the encounter was that they met at the hotel and "had regular, normal sex" and that there was "nothing kinky about it at all." He denied ever placing his arm around the victim's neck. The defendant's theory at trial was that the victim fabricated the story because she was angry at him for not resuming a committed relationship.
Discussion.
1. Uncharged conduct.
The defendant argues that the victim's testimony regarding anal sex permitted the jury to infer that "the sex was unwanted." The defendant characterizes this testimony as prejudicial "bad act evidence" of a serious -- but uncharged -- sexual assault.
"The nature of so-called prior bad act (or other act) evidence ... is that it reflects badly on the character of the defendant and might show a propensity to commit the crime charged, which poses a risk of unfair prejudice to the defendant." Commonwealth v. Veiovis, 477 Mass. 472, 481 (2017). However, if evidence of uncharged conduct is "relevant to something other than the defendant's propensity to commit the charged offense. . . . [and] its prejudicial effect [does] not outweigh its probative value," it is admissible. Commonwealth v. Peno, 485 Mass. 378, 386 (2020). "To be sufficiently probative the evidence must be connected with the facts of the case [and] not be too remote in time" (citation omitted). Id. For example, evidence of recent prior bad acts may be admitted when it is "inextricably intertwined with the description of the events ... of the [crime]" (citation omitted). Commonwealth v. Bryant, 482 Mass. 731, 734 (2019).
Here, because the charged crime took place during a sexual encounter, evidence that the defendant was having anal sex with the victim at the time of the alleged assault and battery was relevant. See Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001) ("The Commonwealth is entitled to 'show the whole transaction of which the crime was a part" [citation omitted]). Indeed, the jury might have concluded that the defendant's chokehold on the victim was a response to her efforts to escape the anal sex; the victim testified that, while the defendant was having anal sex with her, he "put an arm around [her] neck."When the defendant did this, the victim "was trying to get away" and "saying 'No.'" The evidence was probative of the victim's lack of consent to the defendant's act of placing his arm around her neck, an element of offensive battery. See Commonwealth v. Eberhart, 461 Mass. 809, 818 (2012). That it happened during anal sex is necessary context. The judge did not abuse her discretion in determining that the probative value of the evidence outweighed the risk of unfair prejudice. See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).
When the prosecutor asked the victim whether she was describing a "chokehold," the victim replied, "Yeah."
The defendant nevertheless contends that the evidence regarding anal sex was problematic because the victim's testimony "made clear that she was trying to describe a nonconsensual act." To the extent that the victim's testimony gave the impression that she did not consent to the anal sex, her testimony was cut off or redirected to focus on the issue of consent as to the chokehold. That the jury acquitted the defendant of the most serious charge is some indication that they were not so inflamed by the testimony. See Commonwealth v. Bly, 444 Mass. 640, 654-655 (2005).
There is no merit to the defendant's contention that the judge allowed in evidence another uncharged bad act, driving while intoxicated. While the victim testified that the defendant drove to the hotel and that he later appeared intoxicated, no argument was made at trial that the defendant was driving while intoxicated. Even if the jury made the link, the inference of driving while intoxicated is not sufficiently close to the crime of assault and battery on a family or household member to cause a concern that the jury may have used the information for impermissible propensity purposes. See Peno, 485 Mass. at 385-386. Under the circumstances, there was no abuse of discretion in admitting the evidence.
2. Sufficiency of evidence.
The defendant next contends that the judge erred in denying his motions for a required finding of not guilty on the charge of assault and battery on a family or household member. The defendant asserts that there was "no evidence" of a harmful or nonconsensual touching. However, the victim testified that, when the defendant had his arm around her neck, she was "gasping for air" and could feel herself "about to black out." This evidence was sufficient, under the familiar Latimore standard, for a jury to find that the defendant's touching of the victim was likely to cause physical harm. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). And although "consent is . . . immaterial" if the touching is harmful, the victim also testified that she had not consented to being choked and had, in fact, asked the defendant to stop. See Commonwealth v. Burke, 390 Mass. 480, 482 (1983). Accordingly, the judge did not err.
The defendant also attacks the sufficiency of the evidence by arguing that the assault and battery charge was based on the same conduct that underlay the strangulation charge.' This argument misses the mark. A verdict of not guilty on one charge does not render the evidence insufficient to support a guilty verdict on a different charge, even if both charges stem from the same conduct. Cf. Commonwealth v. Erazo, 63 Mass.App.Ct. 624, 630 (2005) (convictions will stand, despite lack of specific unanimity instructions, if evidence was sufficient). Nor are the principles of double jeopardy implicated by the prosecution, in a single proceeding, of multiple charges for the same offense. See Ohio v. Johnson, 467 U.S. 493, 500 (1984).
The defendant's argument, that the Commonwealth prosecuted the charges of assault and battery on a family or household member and strangulation as premised on separate conduct, is not supported by the record.
Alternatively, the defendant frames this argument in terms of impermissibly inconsistent verdicts. It is well established that factual inconsistency is not a basis for reversal. See Commonwealth v. Resende, 476 Mass. 141, 147 (2017). In any event, the verdicts were not factually inconsistent. See Commonwealth v. Spinucci, 472 Mass. 872, 878 (2015) ("The jury . . . were free to believe or disbelieve, in whole or in part, the testimony of each witness"). Nor do the crimes charged in this case fall into the rare category of charges that could result in legally inconsistent verdicts. See Commonwealth v. Elliffe, 47 Mass.App.Ct. 580, 584 (1999).
Judgment affirmed.
The panelists are listed in order of seniority.