Opinion
No. 14–P–1534.
09-02-2016
COMMONWEALTH v. Ezequial TORRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of rape (in violation of G.L.c. 265, § 22 [b] ) and assault and battery (in violation of G.L.c. 265, § 13A [a] ) by a Superior Court jury. We reverse.
Background. A jury could have found as follows. In the spring of 2012, the defendant and the complainant had been in a dating relationship for between eight and ten years. Their relationship was a volatile one. The complainant obtained multiple restraining orders against the defendant over the years and there was at least occasional police intervention. For example, once, “a long time ago” according to the complainant, the defendant became violent when the complainant declined to have sex with him, and officers were called to intercede. Nevertheless, the relationship continued with at least intermittent cohabitation and the birth of a shared child who was three years old at the time of trial in October, 2013.
The complainant's testimony was somewhat unclear on this point. She first testified that she met the defendant when he was eighteen years old and she was thirty-one or thirty-two. On cross-examination she stated that it was possible their relationship began when the defendant was fifteen and she was twenty-seven.
Discussion of this incident prior to empanelment in the context of motions in limine reveals that the incident occurred in December, 2007. Although the prosecutor in closing argument stated that the incident occurred in 2007, the complainant did not provide the jury with a more concrete timeframe than “a long time ago.”
By April of 2012, the couple had been arguing frequently for four or five months and the relationship was coming to an end. It is during this time that the complainant alleges that the defendant raped her numerous times, specifically at least once on April 12, and both raped and assaulted and beat her between May 1 and May 19. On May 21, a fight at the complainant's father's house in Holyoke marked the complete breakdown of the relationship and resulted in the defendant's arrest on a separate charge of assault and battery and the issuance of a new restraining order.
The evidence at trial consisted solely of the testimony of the complainant and her stepmother, the latter as a first complaint witness for the alleged rape on April 12. No exhibits were admitted, and the defendant did not call any witnesses. Although the jury heard evidence of bad acts that the defendant committed before, between, and after the incidents underlying the indictments (including assertions of uncharged “sexual assaults” and “rapes” ), the only charges at issue concerned April 12, 2012, and the period from May 1 to May 19, 2012. The jury acquitted the defendant of the alleged rape on April 12 (count 3), but convicted him of rape (count 1) and assault and battery (count 2) for conduct between May 1 and May 19.
The first complaint witness testified that on April 12 the complainant told her that she had been “raped” by the defendant. The complainant did not “say anything else.”
The complainant testified to sexual assaults that occurred on April 12, April 15, and April 17 that she noted on a calendar. She later testified that “[i]t was in May that he finally said he was going to move out after he raped me a few times.” On cross-examination, the complainant acknowledged that she reported to Springfield police that the defendant had raped her six times between April 12 and April 14, a figure she reaffirmed on redirect. She also acknowledged telling police that the defendant had raped her four times starting on either April 1 or April 12 and ending on April 15.
Discussion. The defendant contends that the Commonwealth presented insufficient evidence of force to sustain his rape conviction and no evidence that would support his assault and battery conviction. He also challenges the admission of the 2007 prior bad act evidence. Because we determine that the evidence underlying the defendant's convictions was insufficient even with the prior bad act evidence in the record, we do not address the propriety of the admission of that evidence.
1. The rape conviction. a. Sufficiency of evidence. We review the denial of the defendant's motions for a required finding of not guilty to determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). The current rape statute, G.L.c. 265, § 22(b), as amended by St.1980, § 459, provides: “Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.” The essential elements that the Commonwealth must prove beyond a reasonable doubt in order to sustain a conviction of rape are that the defendant committed (1) sexual intercourse (2) by means of either physical force, nonphysical/constructive force, or threats of bodily harm (either explicit or implicit) and (3) that at the time of penetration, there was no consent. See Commonwealth v. Lopez, 433 Mass. 722, 726–727 (2001). Unlike other jurisdictions where “physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful,” id. at 728, quoting from In re M.T.S., 129 N.J. 422, 444 (1992), the Massachusetts statute, in following the common law, does require that the force necessary for rape be more than that inherent in the act of sexual penetration. Ibid. The defendant concedes that based on the complainant's testimony that there had been vaginal and anal penetration, and that the sexual relationship was not consensual, the evidence of sexual intercourse and lack of consent was sufficient with respect to count 1 (charging rape between May 1 and May 19, 2012). However, he contends that there was insufficient evidence of force or threat of force because the Commonwealth failed to present any evidence of force in conjunction with the sexual encounter as required by the statute.
The complainant testified as follows on direct examination:
Q. “Did you engage in sexual relationships with [the defendant] consensually after [April 12]?”
A. “No.”
However, the defendant also at least intimates that evidence of lack of consent was wanting: “Not only did [the complainant] not testify to any act of force by [the defendant], she did not even testify that she had informed him, either by word or by deed, that she did not wish to have sex with him on this occasion.”
At trial, the Commonwealth proceeded on the theory of actual physical force in addition to sexual penetration. However, the closest the prosecutor came to eliciting evidence of force in connection with the incident in May came on redirect examination of the complainant when the prosecutor asked if the defendant had sexually assaulted her on “May 12.” The complainant replied, “[t]hat was the last time, yes, like smacked me and just pulled my shift shirt off and stuff like that.” But then, apparently believing that she herself had mixed up the dates in the form of the question (there had never been a date certain for the May incident), the prosecutor said, “Strike that. Did the defendant sexually assault you on April 12.” The sum total of the complainant's testimony on direct examination concerning the alleged rape in May is set out in the margin.
The Commonwealth's direct examination of the complainant contained the following exchange:
Q. “And did a rape happen in May of 2012?”
A. “Yes.”
Q. “And where were you at when that rape happened?”
A. “It was in my house again.”
...
Q. “... if you can tell the jury what happened in the early part of May?”
A. “He raped me again.”
Q. “I know it is difficult for you, I need for you to speak up, if you can, so the jury can hear you.”
A. “He did, he raped me again.”
Q. “And if you can tell the jury and the court how did this rape occur?”
A. “It happened again at home. That time I just whatever, he packed up his stuff and then I took him to work, finally.”
She later elaborated briefly:
“And what part of his body touched your body?”
A. “This time he just did it both, he did it anal.... He did it in my vagina and he did it in my anal, too, just penis, he penetrate me there.”
The Commonwealth does not rely on the self-stricken redirect testimony on appeal. Instead, the Commonwealth argues that even though the complainant's statement that she had been “raped” again in May “was made without explication,” the jury could have reasonably inferred from her statement, “[t]hat time I just whatever,” that her “will was overborn[e] by her fear of denying the defendant's sexual demands based on her prior experiences of telling him ‘no.’ “ Relying on Commonwealth v. Caracciola, 409 Mass. 648, 651–652 (1991), the Commonwealth argues that use of force or threat of force is not required where a victim's consent was obtained from fear of the defendant's conduct and that the nature of the relationship between the defendant and the complainant here furnishes the necessary evidence of fear.
In short, though the Commonwealth's case at trial proceeded on the basis of actual force—and, indeed, in her closing argument the prosecutor (apparently confusing the evidence relating to the April 12 incident charged in count 3 and the May incident) misstated the evidence to indicate supplemental force when such evidence was absent —the Commonwealth on appeal does not now argue that there was evidence of actual force but rather is arguing the different theory of constructive force. The Commonwealth's assertion on appeal that “[a]s to the May rape, the Commonwealth proceeded on a theory of constructive force” is not accompanied by any transcript citation or borne out by the record on appeal. While, as the defendant notes, an appellate court may not uphold a verdict “on a basis not in the minds of the contending parties, the judge, or the jury,” Commonwealth v. Longo, 23 Mass.App.Ct. 518, 527 (1987), S.C., 402 Mass. 482 (1988), we address the Commonwealth's new theory because the judge defined “constructive force” in his standard jury charge on rape.
The prosecutor stated, “the defendant grabbed her.... He put his hands on her, he touched her in order to put her in a position so he could rape her.” There was no such evidence with respect to the alleged May rape.
“In a rape case, the element of force and against the will of the victim may be established by physical force or constructive force. Constructive force requires proof that the victim was afraid or that she submitted to the defendant because his conduct intimidated her.” Commonwealth v. Vasquez, 462 Mass. 827, 846 (2012) (quotation and citations omitted). Our cases have recognized that the relationship between the parties and the previous conduct of a defendant can present sufficient evidence for a finding of constructive force. In Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 418 (2010), for example, we agreed with the Commonwealth that the events surrounding an incident of alleged rape “must be viewed in light of the history of [the] relationship [between the defendant and the victim] and the defendant's predatory behavior.”
However, Wallace and other constructive force cases typically involve an adult authority figure who subjects an adolescent or preadolescent child to pervasive sexual abuse over a number of years and feature testimony from the victim that submission resulted from fear or intimidation by the defendant. See id. at 418 (defendant raped victim for many years, starting when victim was eleven years old, “many individual factors [were present] that collectively support[ed] the Commonwealth's theory of ‘force’: the defendant's pushing the still-young victim onto the bed and pinning him there, the locking of the door, the pillow over the head, and the defendant's regularly plying [him] with alcohol,” and victim testified that “he feared the consequences of resisting the defendant's sexual advances”); Commonwealth v. Newcomb, 80 Mass.App.Ct. 519, 522–522 (2011) (victim's father began raping her when she was young and her “fear of the defendant ... was never dissipated”); Commonwealth v. Dumas, 83 Mass.App.Ct. 536, 537, 539 (2013) (sufficient evidence of constructive force where older defendant “prey[ed] upon the vulnerability of a much younger victim and coerce[d] her into submitting to his sexual advances out of fear for her safety should she refuse” and victim testified “she was afraid to resist the defendant's repeated sexual assaults”); Commonwealth v. Moniz, 87 Mass.App.Ct. 532, 536 (2015) (defendant, victim's adoptive father and authority figure, began assaulting victim when he was young and victim was “worried that [his] family would be split apart if he resisted the defendant's advances”). See also Caracciola, 409 Mass. at 649 & n. 3 (indictment charging rape was supported by probable cause where grand jury heard testimony that defendant, while posing as police officer and wearing gun, directed victim into his car, drove her to parking lot, and made her have sexual intercourse and where victim testified that she “was really scared [and] was petrified he was going to put [her] in jail”).
Each case turns on its own facts. In Commonwealth v. Armstrong, 73 Mass.App.Ct. 245, 255–256 (2008), in addition to finding sufficient evidence of physical force, we found sufficient evidence of constructive force with respect to the crime of rape of a young person where the defendant “took advantage of the young victim as she slept in his house,” “gained an additional advantage over the victim because the victim was his step-niece, and she trusted him,” and based on the “great disparity in age between the defendant and the young victim” and the “commanding physical presence” of the defendant compared to the smaller victim. These factors, relevant to the exploitation of underage victims by older authority figures, are not present here. “[T]hat the young victim denied fear, and instead sought to suppress the effects of the rapes by pretending to sleep during the rapes, professing to accept the continual assaults as acts which ‘didn't affect me’ because she was so young that she ‘didn't think anything was wrong with it [and] just accepted it,’ does not mean that the evidence was not sufficient to show that the rapes were committed against the victim's will, or that her power to resist was not overborne by the defendant.” Id. at 256.
Here, unlike the other cases, the evidence was not of exploitation by an authority figure but that the defendant and the complainant had been in a dating relationship over a number of years, which though volatile had also involved a consensual sexual relationship at some points. Moreover, the complainant did not testify to any fear she had of the defendant as a basis for submitting in the May incident. The prior bad act evidence—challenged by the defendant—of the fight after the complainant refused to have sex with the defendant “[a] long time ago” does not provide the same level of background fear and coercion “calculated to instill fear in the complainant in order for the defendant to achieve his goal,” id. at 653, nor does her statement, “[t]hat time I just whatever,” indicate that she submitted because of fear. In short, even viewing the evidence in the light most favorable to the Commonwealth, the prosecutor failed to elicit “the circumstances or fear in which the [complainant was] placed, the impact of those circumstances or fear on [her] power to resist [or] the defendant's conduct” in May such that the jury could make a “determination whether conduct complained of by the [complainant] was accomplished by force and against the victim's will” (emphasis original). Id. at 651.
The Commonwealth cannot rely on the prosecutor's and complainant's continual use of the terms “rape” and “sexual assault” to supply the missing proof of force. The prosecutor and the complainant made no fewer than twenty-one combined references to “rape” during the latter's direct examination. Immediately after the prosecutor used the term “rape” three times in one question, the trial judge sua sponte called a sidebar to express his concern “about this constant and continual testimony describing the events as rapes. The rape on this occasion, the rape on that occasion.” The judge wanted to make sure that it was a strategic decision by defense counsel not to object, and defense counsel assured the judge that it was. After that conference, the prosecutor switched to using the term “sexual assault” and used that term eight times in the remainder of her direct examination of the complainant.
Repetition of these conclusory terms regarding the ultimate issue for the jury was improper. See Commonwealth v. Hesketh, 386 Mass. 153, 161–162 (1982) ; Commonwealth v. Dargon, 457 Mass. 387, 394–397 (2010) ; Commonwealth v. Ramsey, 76 Mass.App.Ct. 844, 845, 848 (2010). Indeed, we have stated that “[p]rosecutors would be well advised to take special care to instruct their witnesses, prior to putting them on the stand and asking their opinions, to avoid such terms as ‘rape,’ ‘sexual assault,’ and the like.” Commonwealth v. McNickles, 22 Mass.App.Ct. 114, 121 n .10 (1986). The prosecutor should have elicited the facts underlying these loaded terms; the use of the conclusory terms themselves was error.
Commonwealth v. Sherman, 68 Mass.App.Ct. 797, 803 (2007), S.C., 451 Mass. 332 (2008), concerning whether a defendant's guilty plea to rape was intelligent, cited by the Commonwealth, is not apposite. In Sherman, the prosecutor's factual recitation in the course of a plea colloquy stated that the defendant had “forcibly raped” the victim. We determined the defendant's plea was made intelligently based on both the lay understanding of “rape” as “descriptive of involuntary sexual intercourse,” ibid., and the context of the proceedings. We emphasized the additional detail provided in the prosecutor's factual recitation, specifically that the victim was found “naked from the waist down” and that the “forcible” rape had occurred when the victim refused to have sex with the defendant voluntarily in exchange for money, and noted that the indictment, to which the defendant had been exposed, listed the statutory elements of rape. Id. at 802–804.
Here, there is nothing in the record that would have signaled to the jury the manner in which the complainant was using the term “rape.” It was not modified or qualified in any descriptive way (contrast Sherman's “forcibly raped”), and the Commonwealth elicited almost no additional factual detail to further contextualize the use of the term with respect to the alleged incident in May. Moreover, in Sherman, we were willing to consider the lay understanding of “rape” only as a partial substitute for a more specific factual account of the element of natural or unnatural sexual intercourse, not the element of force, which is not necessarily subsumed in the lay understanding of “rape” and is not even part of the legal definition of “rape” in other jurisdictions. The common parlance understanding noted in Sherman cannot provide the jury with a sufficient basis to understand what the complainant meant when she used the term here.
It is important to emphasize that we are not saying that the Commonwealth's new theory of prosecution as advanced on appeal is implausible. A person in a previously or even ongoing consensual relationship can be a victim of constructive force. Here, however, the Commonwealth's evidence, even when viewed in the most favorable light, was not sufficient to warrant the conclusion that the complainant had submitted to the defendant because of fear. Consequently, the defendant's rape conviction must be reversed.
Finally, we note that apart from the deficiency in the Commonwealth's evidence at trial, we also conclude that the cumulative prejudicial effect of the numerous errors in the short trial necessitates reversal. See Commonwealth v. Cancel, 394 Mass. 567, 568 (1985) (combination of unpreserved and individually insufficiently prejudicial errors presents substantial risk of miscarriage of justice requiring reversal). Specifically, the complainant's and prosecutor's excessive use of the terms “rape” and “sexual assault,” the prosecutor's characterization in closing argument of a prior bad act as an attempted “sexual assault,” the complainant's reference to the defendant's having recently been released from jail at the time of the events in question and her comment on the defendant's statement in a telephone call from jail that he faced substantial committed time, the prosecutor's misstatement of the evidence with respect to the May rape allegation, and the prosecutor's misstatement of the required element of force, all combine to create a substantial risk of a miscarriage of justice requiring reversal.
In a partially nonresponsive answer on cross-examination, the complainant testified that she and the defendant “lived on Tyler Street when he got out of jail in December.” There was no objection or motion to strike.
The complainant testified that the defendant, apparently in custody, “was asking me what was I going to do, that they were offering him a lot of time and he didn't want to be in there forever .” When the prosecutor asked the complainant if she knew what the defendant was talking about when he said that he was being offered a lot of time, an objection by the defendant was sustained. There was no motion to strike.
The prosecutor's misstatement of the elements of rape in closing argument, omitting the required element of force, is particularly problematic in light of the lack of evidence of force. On appeal, the Commonwealth acknowledges that the prosecutor misstated the elements but suggests that the “comment put the elements of rape in the context of the trial evidence.” Where the trial evidence does not actually meet the legal definition of rape, the prosecutor's tailoring of the elements to the evidence only exacerbates the evidentiary insufficiency and the risk that justice miscarried.
b. Reducing conviction to lesser included offense. To the extent that we find insufficient evidence of rape, the Commonwealth asks us to remand the case for resentencing on the lesser included offense of indecent assault and battery. The Supreme Judicial Court has recently stated:
“[W]here ... a jury convicts a defendant of a crime despite insufficient evidence of a required element, but the remaining untainted elements include all the elements of a lesser included offense, we generally correct the error by vacating conviction of the greater crime, and remanding for entry of conviction of the lesser included offense. See Commonwealth v. Labadie, 467 Mass. 81, 88, cert. denied sub nom. Carcieri v. Massachusetts, 135 S.Ct. 257 (2014). See also Commonwealth v. French, 462 Mass. 41, 48–49 (2012), and cases cited (appellate courts have inherent authority to order entry of guilt of lesser included offense even absent jury instruction).”
Commonwealth v. Garrett, 473 Mass. 257, 266–267 (2015).
Indecent assault and battery is a lesser included offense of rape. See Commonwealth v. Walker, 426 Mass. 301, 303–306 (1997). “[I]n order to prove indecent assault and battery, the Commonwealth must prove beyond a reasonable doubt that the defendant committed an intentional, unprivileged and indecent touching of the victim.” Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184 (1991), quoting from Commonwealth v. Perretti, 20 Mass.App.Ct. 36, 43–44 (1985). “Nonconsent is an element of the crime of indecent assault and battery on a person who has attained the age of fourteen.” Commonwealth v. Burke, 390 Mass. 480, 484 n. 4 (1983), citing G.L.c. 265, § 13H, partially abrogated by St.1986, c .187 (declaring, with respect to G.L.c. 265, § 13B, that child under age of fourteen is incapable of giving consent). Viewing the evidence in the light most favorable to the Commonwealth, the defendant had by vaginal and anal penetration, without the victim's consent, committed the offense of indecent assault and battery. We are unable to conclude, however, given the multiple errors at trial discussed, supra, that the lesser included offense was untainted. Hence, we decline to exercise our inherent authority to order that the defendant be resentenced on the lesser included offense of indecent assault and battery.
2. Sufficiency of assault and battery evidence. We must also determine whether the evidence, again viewed in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 677, would support the jury's verdict on count 2 that the defendant committed an assault and battery on the complainant between May 1 and May 19.
On appeal, the Commonwealth contends that the complainant's testimony sketched two separate incidents in which the defendant came to her father's house and physically assaulted her. However, this was not the theory advanced by the prosecutor at trial. After the prosecutor rested, the defendant moved for a required finding of not guilty on all charges, emphasizing in particular that there was no evidence on the assault and battery charge separate from the alleged rape. The prosecutor responded that “with the rape with the assault and battery she did say that he grabbed her and I would suggest to the court, at the very least, that would be in a way that she did not want, so I would suggest to the court the motion should be denied.” The judge then summarily denied the motion. This was error.
The testimony cited by the prosecutor to survive the required finding motion does not appear in the transcript. This makes it particularly problematic that the prosecutor then argued in closing that “the defendant grabbed her, he did this and I would suggest to you that that would be the assault and battery. He put his hands on her, he touched her in order to put her in a position so he could rape her and that was offensive to her because she didn't want the touching.” There was no evidence of this with respect to the period between May 1 and May 19.
The prosecutor attempted to elicit factual detail about an assault and battery that took place between May 1 and May 19 but was thwarted by a sustained objection. The prosecutor asked the complainant how the assault and battery between May 1 and May 19 was committed. The victim repeated, “How was it?” and the judge sustained an objection. The prosecutor never took up the thread again.
Perhaps recognizing that the prosecutor's argument at the sidebar and in closing was not supported by the evidence, the Commonwealth now seeks to anchor the assault and battery conviction to the fight at the complainant's father's house in Holyoke. However, a close review of the transcript makes clear that there was only one incident at the complainant's father's house, not two.
It is clear from the prosecutor's closing argument that the prosecutor also did not believe there were two separate incidents but only one, the incident that ultimately gave rise to the defendant's arrest.
It thus appears that the jury's guilty verdict on the assault and battery charge either rested on insufficient evidence of the indictment charging assault and battery in Springfield (where the couple lived at the time and where the alleged rapes were to have occurred between May 1 and May 19 or on evidence of a subsequent bad act that took place in Holyoke (where the defendant worked and where the complainant's father lived on May 21. If it is the former, the conviction falls for insufficient evidence. If the latter, it must be reversed, if for no other reason, as a violation of the defendant's due process and double jeopardy rights where the underlying incident is the basis of a conviction in a separate proceeding. See Glawson v. Commonwealth, 445 Mass. 1019, 1020 (2005), quoting from Mahoney v. Commonwealth, 415 Mass. 278, 283 (1993) (“Principles of double jeopardy bar prosecution in three circumstances: ‘a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense’ ”).
The defendant has provided a page of a docket in a separate District Court proceeding, 1217CR001992, indicating a guilty plea to assault and battery and a sentence to time served. The Commonwealth does not dispute that this was a separate prosecution.
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The judgments are reversed and the verdicts set aside.
So ordered.