Opinion
23-P-146
07-05-2024
COMMONWEALTH v. JOSEPH R. LAMB.
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 found the defendant guilty of indecent assault and battery, in violation of G. L. c. 265, § 13H. On appeal, the defendant maintains that (1) the Commonwealth presented insufficient evidence that the victim was incapable of consent or that the defendant knew that the victim was incapable of consenting to this touching, and (2) the jury instructions were erroneous because the judge did not define "knew or reasonably should have known" and that this is a civil negligence standard which cannot be the basis for a common law crime. We affirm.
Background.
We recite the facts pertinent to the defendant's arguments regarding the sufficiency of the evidence through the lens of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The defendant drove a bus for Paratransit, a bus company that provided transportation services for persons with mental or physical disabilities. The victim, who was twenty-three, rode the bus to work. She has been diagnosed with attention deficit hyperactivity disorder (ADHD), autism, and a mood disorder. She does not cook for herself, does not go to the store alone, does not manage any money, and has not been left alone for more than thirty minutes. She lives in a group home that has twenty-four hour staffing. The victim worked at a retail clothing store in Lee. She is paid for her work, but the staff at the group home holds the money and gives it to the victim as needed.
On February 13, 2020, the defendant drove the victim to her job. Drivers for Paratransit are aware that the riders have a disability, but they may not be aware of the type of disability. For a portion of the drive, the defendant and the victim were alone and had a conversation during which the defendant asked the victim about her virginity and about masturbation. Many times the victim remained silent or repeatedly responded, "I don't know." She also yelled back at the defendant on being questioned and said, "I'm confused!" and when the defendant asked, "What are you confused about?" she responded again, "I don't know." When the bus arrived at a lot near the victim's workplace, the defendant parked the bus and went and sat across from the victim. Though the victim stated over twenty times, "I don't know," the defendant continued to pose sexual questions to her. The defendant repeatedly asked the victim to show him her pubic area. Eventually, the victim pulled down the front of her pants. The defendant touched her on the legs and face and ultimately indecently touched her by putting his hand inside her pants. The defendant then returned to the driver's seat, started the bus, and drove the victim to her workplace. Before the victim left the bus, she said, "I have to go to fucking work now," to which the defendant responded, "I know. Can't tell nobody."
Paratransit buses are equipped with digital video recorders (DVRs) that record audio and video of what occurs on the bus while it is being operated. A video recording of the entire encounter between the defendant and victim, which lasted about twenty-one minutes, was played for the jury and marked for identification. The video is part of the appellate record and we have viewed it.
Discussion.
1. Lack of consent.
The defendant argues that the Commonwealth failed to prove beyond a reasonable doubt that the victim did not actually consent or was incapable of consent. "The element of lack of consent in a prosecution for indecent assault and battery is the same as in a prosecution for rape." Commonwealth v. St. Louis, 473 Mass. 350, 361 (2015). The Commonwealth proceeded solely on the theory that the victim was incapable of consenting to the defendant's touching because of her intellectual disability. See Commonwealth v. Blache, 450 Mass. 583, 584 (2008) (Commonwealth may prove lack of consent with proof that victim lacked capacity to consent, but only when defendant's knowledge of such incapacity shown). We examine the totality of the circumstances to determine whether the Commonwealth met its burden of proof as to lack of consent. See St. Louis, supra.
Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Oberle, 476 Mass. 539, 547 (2017), a rational trier of fact could conclude that the victim did not consent to the defendant's touching based on her intellectual disability. See Commonwealth v. Tillson, 104 Mass.App.Ct. 180, 187-188 (2024). Because the defendant was the victim's Paratransit driver, he knew she had a disability and he could observe that it was not a physical disability. The victim's responses to questions posed to her by the defendant, including the way the defendant engaged with the victim as if she was a child, allowed the jury to have reasonably inferred that the victim's "mental condition was so impaired [as a result of her disability] that she could not consent." Blache, 450 Mass. at 596-597. The jury were able to assess the scope of her intellectual disability for themselves. See St. Louis, 473 Mass. at 361; Commonwealth v. Roderick, 411 Mass. 817, 819 (1992); Commonwealth v. Fuller, 66 Mass.App.Ct. 84, 91 (2006).
Because of our ultimate conclusion, we need not reach the issue whether the victim was incapable of consenting to sexual activity of any kind. Contrast St. Louis, 473 Mass. at 353, 361 (victim missing one-half of her cerebellum, lived with her mother, and had verbal intelligence quotient [IQ] of forty-seven); Roderick, 411 Mass. at 818 (victim resident of group home, severely developmentally disabled since birth, could not hear or speak, could communicate only by gesture and vocal sounds). We only decide that the victim lacked the capacity to consent to the indecent touching that is the subject of this case.
"The question of a defendant's knowledge is exclusively within the province of the [fact finder], and [the fact finder is] free to draw an inference of guilty knowledge . . . if the inferences drawn from the circumstances [are] reasonable and possible" (quotations omitted). Commonwealth v. Provost, 418 Mass. 416, 419 (1994). As a bus driver for Paratransit, a company that provides transportation for people with physical or intellectual disabilities, and based on the defendant's interaction with the victim, a rational jury could draw the reasonable inference that the defendant knew or reasonably should have known that the victim lacked the capacity to consent to the defendant's touching while on the bus. See Commonwealth v. LeBlanc, 456 Mass. 135, 140 n.3 (2010); Commonwealth v. Chilcoff, 103 Mass.App.Ct. 48, 54 (2023). In addition, the defendant told the victim not to disclose the incidents, something that could be construed to indicate a lack of consent. See St. Louis, 473 Mass. at 362 (defendant told victim to keep incidents secret); Tillson, 104 Mass.App.Ct. at 187 (same).
2. Jury instructions.
Because the defendant did not object to the judge's instructions or otherwise raise the issue at trial, "we review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). Regarding the defendant's knowledge, the judge instructed the jury as follows:
"If a person is so impaired because of the consumption of drugs or alcohol or for some other reason, for example, sleep, unconsciousness, intellectual disability, or physical helplessness, that this person is incapable of consenting, then it automatically follows that they did not consent.
"In such cases, the Commonwealth may prove that the complaining witness did not consent by proving beyond a reasonable doubt two things. . . . [A]nd two, that the defendant knew or reasonably should have known that [the victim's] condition rendered her incapable of consenting.
"It is a question of fact in each case as to whether a particular person was or was not able to consent on a particular occasion."
As this court has explained,
"This instruction has two alternative elements of knowledge. The first is the defendant's actual knowledge of the victim's incapacity and the second is that the defendant reasonably should have known of the victim's incapacity -- a mix of subjective and objective components. The subjective component focuses on the defendant's . . . knowledge [and t]he objective component focuses on what the average prudent person possessing the defendant's knowledge would have understood regarding the victim's incapacity." (Quotations and citation omitted.)Chilcoff, 103 Mass.App.Ct. at 60 n.5.
The defendant argues that the jury should have been instructed as to the meaning of "knew or reasonably should have known." Contrary to the defendant's argument, Commonwealth v. Mountry, 463 Mass. 80, 91 (2012), does not require judges to explain the subjective and objective components of the defendant's knowledge. The judge here instructed the jury substantially in accordance with the instruction given in Blache, 450 Mass. at 595 n.19. "We do not require that judges use particular words" when instructing juries. Commonwealth v. Kelly, 470 Mass. 682, 697 (2015). The judge's instructions as a whole correctly conveyed the relevant legal concepts, which is all that is required. See id. We discern no error, let alone a substantial risk of a miscarriage of justice.
Lastly, the defendant argues that "reasonably should have known" is a negligence standard that cannot be applied to common law crimes in Massachusetts. The defendant's argument is misplaced. "The crime of indecent assault and battery is purely a statutory crime as '[t]here was no distinct crime of indecent assault and battery at common law; the indecency was a matter of aggravation.'" Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184 n.2 (1991), quoting Commonwealth v. Burke, 390 Mass. 480, 484 n.5 (1983). Additionally, as stated above, the "reasonably should have known" language has repeatedly been approved by the Supreme Judicial Court. See Commonwealth v. Gibson, 488 Mass. 854, 857 (2022); Mountry, 463 Mass. at 91-92; Blache, 450 Mass. at 594. There was no error.
Judgment affirmed.
The panelists are listed in order of seniority.