Opinion
21-P-151
02-17-2022
COMMONWEALTH v. VINCENT HOWARD LUCAS.
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
Convicted by a Superior Court jury of assault with intent to rape, G. L. c. 265, § 24, and assault and battery, G. L. c. 265, § 13A (a.), the defendant appeals from his convictions and from the denial of his motion for a new trial. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The defendant argues that the evidence was insufficient to convict him because the victim's testimony was uncorroborated, and his trial counsel was ineffective for not requesting an instruction that the offenses had to be based on separate acts. We affirm.
Background.
The victim testified that, on the night of August 15 and into the morning of August 16, 2017, she was relapsing in her substance use disorder and went to Lowell planning to "turn tricks" to obtain heroin and cocaine. Outside a convenience store, she approached a woman she vaguely knew who was with the defendant and said she wanted to "get high." The defendant claimed he had twenty dollars and offered to "go get some stuff," meaning "crack" cocaine. After walking around for about an hour, the three met a drug dealer, at which point the defendant admitted he did not have any money. The other woman and the drug dealer then walked away.
Alone with the victim, the defendant pulled out a rolled-up tissue, claimed it contained "crack," and persuaded the victim to follow him to a secluded area near a canal to use it. There, he suddenly grabbed the victim, pushed her against a wall so that her head dangled above the canal, and said, "[y]ou want to smoke, right? You want to smoke?" She understood him to be demanding sex in exchange for the drugs. Scared and in shock, she repeatedly said "no." The defendant took the victim to a nearby grassy area, where he put her on her back, removed her shorts and underwear, and penetrated her vagina and anus with his fingers. As she struggled and screamed, the defendant yelled, "you're going to die" and "I'm going to kill you," then strangled her with both hands until she lost control of her bowels. As soon as he took his hands from her neck, the victim grabbed her shorts and eyeglasses and ran, leaving her underwear and flip-flops behind.
The jury acquitted the defendant of two counts of rape.
The jury also acquitted the defendant of suffocation or strangulation.
Screaming frantically, the victim flagged down a police cruiser and told the officer she had just been raped in a nearby park. She was wearing only a shirt and had feces on her feet and red marks on her neck. In the park, police found the victim's feces-stained underwear and flip-flops. After the victim was taken to a nearby hospital, an officer saw the defendant, at the same hospital, wearing the clothing the victim had described. From a photographic array, the victim identified the defendant as the assailant.
Discussion.
1. Sufficiency of the evidence.
The defendant argues that there was "no conclusive evidence" that he assaulted the victim with intent to rape or assaulted and beat her, because "there were no witnesses to the alleged assaults." The claim is unavailing. "The testifying victim is a witness." Commonwealth v. Santos, 100 Mass.App.Ct. 1, 3 (2021). "We reject the defendant's contention that corroborative, extrinsic, or forensic evidence, or expert or third-party witness testimony, is required to support a conviction of . . . sexual assault where the victim testified as a witness at the trial." Id.
Beyond that, there was evidence that corroborated the victim's testimony. That evidence included the victim's first complaint to the officer, the red marks on her neck and feces on her feet, the photographs of the feces-stained underwear and flip-flops found at the scene of the sexual assault, and the police sighting of the defendant, shortly after the sexual assault, wearing the same clothing the victim had described.
2. Absence of separate acts instruction.
The defendant argues that the judge should have allowed his motion for a new trial which contended that trial counsel was ineffective for not requesting a jury instruction that the two offenses had to be based on separate acts to support separate convictions. Because the judge who denied the motion for a new trial was also the trial judge, we accord his ruling "particular deference" (citation omitted). Commonwealth v. Sorenson, 98 Mass.App.Ct. 789, 791 (2020).
As the judge noted in his memorandum of decision and order denying the motion for a new trial, each of the two crimes for which the defendant was convicted has an element that the other does not. Assault with intent to rape requires proof of intent to rape, while assault and battery requires proof of an unconsented touching. One is not a lesser included offense of the other. See Commonwealth v. Morin, 52 Mass.App.Ct. 780, 787 (2001) ("assault with intent to rape and indecent assault and battery have mutually exclusive elements so neither is technically a lesser included offense of the other"). See also Commonwealth v. Pinero, 49 Mass.App.Ct. 397, 398-399 (2000). "[W]here, as here, neither crime is a lesser included offense of the other, multiple punishments are permitted even where the offenses arise from the very same criminal event." Commonwealth v. Vick, 454 Mass. 418, 436 (2009). See also Commonwealth v. Garcia, 94 Mass.App.Ct. 91, 104 (2018).
In contrast, where a defendant is convicted of two crimes and one is a lesser included offense of the other, courts must consider whether there is "any significant possibility," Commonwealth v. Kelly, 470 Mass. 682, 700 (2015), that the jury based both convictions on the same act. See, e.g., Commonwealth v. Moran, 439 Mass. 482, 489 (2003); Commonwealth v. Rios, 96 Mass.App.Ct. 463, 473 (2019).
Relying on several sexual assault cases decided prior to Vick, the defendant urges us to look past its adherence to the elements-based test first enunciated in Morey v. Commonwealth, 108 Mass. 433, 436 (1871), and instead consider whether his two crimes were "so closely related in fact as to constitute in substance but a single crime" (citation omitted). Commonwealth v. Thomas, 401 Mass. 109, 120 (1987). See Commonwealth v. Niels N., 73 Mass.App.Ct. 689, 698 (2009); Morin, 52 Mass.App.Ct. at 788. But see Commonwealth v. Foskette, 30 Mass.App.Ct. 384, 391 (1991). We may not do so. As to multiple offenses tried in a single trial, Vick made clear that the elements-based test "remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative." Vick, 454 Mass. at 431. See Commonwealth v. Buckley, 76 Mass.App.Ct. 123, 126-127 (2010).
In these circumstances, the defendant was not entitled to a separate acts instruction. By not requesting one, trial counsel's performance neither fell below the standard of an ordinary, fallible lawyer, nor deprived the defendant of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgments affirmed.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.