Opinion
14-P-1180
11-24-2015
COMMONWEALTH v. IRA SIMMONS.
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
The defendant, Ira Simmons, appeals from his convictions of three counts of aggravated rape of a child. The defendant argues that the evidence was insufficient to sustain two of these convictions. Additionally, the defendant argues that the absence of a specific unanimity instruction created a substantial risk of a miscarriage of justice. We affirm.
The defendant also appeals from his two convictions of indecent assault and battery on a child under fourteen years of age, which involved a second victim. The defendant however raises no argument as to these convictions. We therefore affirm them without further discussion.
Discussion. The defendant argues that the judge erred in denying his motion for required findings of not guilty because the victim's testimony was vague and failed to distinguish between the anal and vaginal areas. This vagueness, the defendant argues, made the testimony insufficient to sustain his two convictions of vaginally raping her.
The defendant was convicted of three separate counts of aggravated rape of the victim, in violation of G. L. c. 265, § 23A. Two of those counts are the subject of the defendant's sufficiency argument. The Commonwealth relied on the aggravating factor contained in clause (a) of G. L. c. 265, § 23A. The Commonwealth therefore was required to prove that the victim was under twelve years of age at the time of the incidents and that the defendant was more than five years older than she was. There is no dispute that these requirements were met. Rather, the defendant argues that the testimony of the victim was insufficient evidence for a jury to find vaginal penetration. We disagree.
General Laws c. 265, § 23A, inserted by St. 2008, c. 205, § 2, provides in pertinent part that:
"Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age and:
(a) there exists more than a 5 year age difference between the defendant and the victim and the victim is under 12 years of age;
. . . shall be punished . . . ."
In reviewing the denial of a motion for a required finding the court "must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged . . . ." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). "The evidence may be primarily or entirely circumstantial, provided that, when viewed in the light most favorable to the Commonwealth, it 'and the inferences permitted to be drawn therefrom [are] of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.'" Commonwealth v. Jansen, 459 Mass. 21, 27 (2011), quoting from Latimore, 378 Mass. at 677 (quotation marks omitted). An inference "need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Casale, 381 Mass. 167, 173 (1980).
At the time of the victim's testimony she was nine years old and did not use the word "vagina" to describe that part of her body the defendant penetrated. However, from her testimony, when read in its entirety, a reasonable juror could infer that she intended the term "private part . . . where [she] use[s] the bathroom" to refer to her vaginal area and not her anus. The victim testified that the defendant would put his "private part" into her "front private part" and that only the defendant's "part that he pees with" went into the "front part" of her body. The victim also testified that the defendant put his "front" private part into her "bottom" where she sometimes uses the bathroom "also." Her testimony described the defendant penetrating her "front private part" with his penis while she was unclothed in the bedroom and while she was unclothed on the living room couch.
Based on the testimony of the victim, a reasonable juror would be entitled to infer the penetrations necessary to constitute the rapes. The Supreme Judicial Court has stated that, "when young children testify about sexual assault, their description of penetration need not be precise." Commonwealth v. King, 445 Mass. 217, 224 (2005), citing Commonwealth v. Moniz, 43 Mass. App. Ct. 913, 914 (1997) (jury could find penetration from seven year old victim's testimony that defendant "licked her pee pee"), Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 785-787 (1989) (jury could infer penetration from evidence including testimony of young child that defendant touched her "bum" and "private spot" with his "private spot"), and Commonwealth v. Thomas, 19 Mass. App. Ct. 1, 5 (1984) (jury entitled to infer penetration from six year old's testimony that defendant made her "privacy" feel bad by lying on top of her). The defendant's motions were properly denied.
The defendant also claims that the judge erred in failing to give the jury a specific unanimity instruction sua sponte. "It is a fundamental rule of practice that where a party alleges error in a charge he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity to rectify the error, if any." Commonwealth v. McDuffee, 379 Mass. 353, 357 (1979). Because the defendant did not object to the instructions given at trial, or request more specific instructions, we limit our review to determining whether the instructions given created a substantial risk of a miscarriage of justice. Commonwealth v. Comtois, 399 Mass. 668, 675-676 (1987).
A specific unanimity instruction "is required only if there are separate events or episodes and the jurors could otherwise disagree concerning which act a defendant committed and yet convict him of the crime charged." Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 904 (1995). A specific unanimity instruction is not required unless there is a reason to "fear that the jury will pick and choose among the alleged incidents and convict the defendant while disagreeing as to which of them were committed." Commonwealth v. Santos, 440 Mass. 281, 286 (2003). Here there was no risk that the jury would disagree as to which act served as the basis for each indictment because each verdict slip explicitly referenced the specific act and the location that was alleged to be the basis for the specific crime. See Commonwealth v. Mistretta, 84 Mass. App. Ct. 906, 906 n.2 (2013) (there was no risk that the jury failed to agree unanimously to the conduct upon which guilt was established because there were separate charges pertaining to each offense and separate verdict slips for each charge). No specific unanimity instruction was required because the jury were directed to consider each of the defendant's acts separately as the basis of each individual count.
The captions on the three separate verdict slips in question specified, respectively, "vaginal penetration -- bedroom," "[v]aginal penetration -- living room," and "anal penetration."
The trial judge instructed the jury:
"Now let me also tell you, members of the jury, that a separate crime is charged in each of these five counts. Each offense must be considered separately. The fact that you may find the defendant guilty or not guilty on one count should not and does not control your verdict as to any other counts of the indictments. . . . Your verdict must be unanimous, which means that all 12 jurors must agree one way or the other."
There was no error because under the circumstances here there was no need to give a specific unanimity instruction.
Judgments affirmed.
By the Court (Kafker, C.J., Trainor & Massing, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk
Entered: November 24, 2015.