Opinion
13-P-1026
07-16-2015
COMMONWEALTH v. MICHAEL SZLOSEK.
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
Following a jury-waived trial, a Superior Court judge found the defendant guilty of one count of aggravated kidnapping, G. L. c. 265, § 26 (count 1), and three counts of aggravated rape, G. L. c. 265, § 22(a) (counts 2-4). The defendant used zip ties to tie the victim to a bed before he raped her. On appeal, the defendant makes three arguments: (1)(a) the aggravated kidnapping conviction is not supported by the evidence because there was no showing that the defendant used a dangerous weapon; (b) there was insufficient evidence for an aggravated rape conviction because there was no proof that the victim suffered serious bodily injury; and (2) the prosecutor improperly appealed to the sympathies of the fact finder during closing argument. We take each argument in turn, affirming in part and reversing in part.
He was also convicted of two counts of indecent assault and battery on a person aged fourteen years or more, G. L. c. 265, § 13H (counts 5 and 6), and four counts of assault and battery, G. L. c. 265, § 13A(a) (counts 7-10). On count 1, the aggravated kidnapping conviction, the defendant was sentenced to not less than twenty-five years and not more than thirty years in State prison. The sentences on all the other convictions were concurrent with count 1.
1. Sufficiency. With respect to both sufficiency arguments, we consider the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Roman, 470 Mass. 85, 88 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
a. Aggravated kidnapping. The defendant argues that there was no evidence of a dangerous weapon to support a finding of aggravated kidnapping. The Commonwealth concedes that there was insufficient proof of this element.
We agree with the parties. To convict the defendant of aggravated kidnapping, the Commonwealth must prove that the defendant committed the kidnapping while armed with a dangerous weapon. See G. L. c. 265, § 26; Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 270-272 (2013). Only the zip ties here could be weapons, but there was no evidence presented to show that they were "used in a dangerous fashion" such that they were "capable of producing serious bodily harm," and the Commonwealth did not argue to that effect below. Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001) (citations omitted).
The victim specifically denied that the zip ties were painful, and the ties only caused red marks on her wrists.
b. Aggravated rape. The defendant argues that there was insufficient evidence that the victim suffered serious bodily injury, and therefore insufficient evidence to support a guilty finding of aggravated rape. A conviction of aggravated rape requires proof of the elements of rape and also proof of one of the aggravating factors enumerated in the statute. See G. L. c. 265, § 22(a). Whether the rape "results in or is committed with acts resulting in serious bodily injury," ibid., inserted by St. 1980, c. 459, § 6, is the disputed aggravating factor here. The Commonwealth does not argue, and did not argue below, that any other factor supported an aggravated rape conviction.
The defendant contends that "serious bodily injury" -- which § 22(a) does not define should be understood by the meaning ascribed to it by definitions in other criminal statutes. The defendant cites no cases to support this argument. Rather, we have generally stated that "[b]y not defining [a] term . . . the Legislature is 'presumed to have intended to incorporate the common law definition of that phrase, at least in so far as it is not inconsistent with the terms or the purpose of the statute.'" Commonwealth v. Lord, 55 Mass. App. Ct. 265, 269 n.6 (2002) (citation omitted).
We have held that there was sufficient evidence to support a finding of serious bodily injury under the rape statute where the victim suffered "bruises, . . . scrapes on her throat and back," and was choked such that she was "gasping for air." Commonwealth v. Sumner, 18 Mass. App. Ct. 349, 351-352 (1984). Similarly, in Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 235 (1991), a "swollen eye, swollen face, and facial bruises" supported a finding of serious bodily injury. See also Commonwealth v. Pontes, 402 Mass. 311, 319 n.7 (1988).
The victim here was choked until she "almost passed out." She suffered bruises on her throat, and her throat swelled to the point that she had difficulty swallowing. The victim also suffered bruises on her back, bite marks on her body, and red marks on her face. As a result of the encounter she took HIV treatment medications, which caused a relapse of her multiple sclerosis, resulting in temporary paralysis of her left side. We conclude there was sufficient evidence to support the aggravating factor of serious bodily injury.
2. Closing argument. The defendant argues that the prosecutor erred in appealing to the sympathy of the fact finder, the judge, by suggesting that the victim should be believed because she endured a medical rape examination at the hospital after the incident. Because the defendant did not object at trial, we review to determine whether the error, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 235 (2013). Even assuming, without deciding, that the comments were made in error, we see no such risk. "A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed h[er]self as to the manner in which evidence is to be considered in h[er] role as factfinder." Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). Also, the prosecutor explicitly limited her statement by saying that she offered the argument "not for you to feel sorry for this victim." Moreover, taken in the full context of the prosecutor's closing, the isolated comment did not rise to the level of a substantial risk of a miscarriage of justice. See Olmande, supra at 237.
Conclusion. So much of the finding on count 1 as finds the defendant guilty of the lesser included offense of kidnapping is to stand; on the remaining portion of count 1 (aggravation of the kidnapping), a finding shall enter for the defendant. The findings on counts 2 through 10 are affirmed. In view of the fact that the sentence on count 1 was the lead sentence, the sentences on all counts are vacated and the case is remanded to the Superior Court for resentencing.
So ordered.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 16, 2015.