COMMONWEALTH v. JIMENEZ TORRES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of kidnapping and assault and battery as lesser included offenses, respectively, of aggravated kidnapping and indecent assault and battery (to wit, hand on breasts) on a person fourteen years of age or older.³ On appeal the defendant argues that there was insufficient evidence to support his convictions and that improper comments in the Commonwealth's closing argument created a substantial risk of a miscarriage of justice. We affirm.

Sufficiency of the evidence. We review the defendant's sufficiency challenges to determine “whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.” Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).

1. Kidnapping. To prove the offense of kidnapping, the Commonwealth was required to establish beyond a reasonable doubt that the defendant “without lawful authority, forcibly or secretly confine[d] or imprison[ed] another person within this commonwealth” against that person's will. Commonwealth v. Oberle, 476 Mass. 539, 548 (2017), quoting G. L. c. 265, § 26. “Confinement is ‘broadly interpreted to mean any restraint of a person's movement.’ ” Oberle, supra, quoting Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 193 (2008). “Forcible conduct includes acts of actual physical force or the display of potential force.” Boyd, supra.

There was ample evidence from which the jury could have found that the defendant forcibly confined the victim against her will. The victim testified that the defendant, whom she did not know, took her from the street where she was walking and brought her upstairs to his apartment.⁴ Once inside, the defendant secured the door with two pieces of wood. The defendant told the victim that he had a gun, threatened to kill her, and ignored her pleas to be let go. He also hit the victim on the arm and eye when she tried to leave. At some point the victim “hit the window very hard” and yelled for help. A detective testified that he saw the victim at the window as he was driving by and that she appeared to be mouthing, “[H]elp me.” He further testified that the victim managed to escape shortly thereafter and approached him for help, crying and shaking. An emergency medical technician (EMT) dispatched to the scene testified that the victim told him that she had been held against her will.⁵ This “evidence abundantly established sustained confinement against [the victim's] will by actual force and the display of additional potential force without lawful authority.” Boyd, 73 Mass. App. Ct. at 193-194. See Oberle, 476 Mass. at 549.

2. Assault and battery. To prove the offense of assault and battery, the Commonwealth was required to show that the defendant intentionally touched the victim in a harmful or offensive manner without justification or excuse. Boyd, 73 Mass. App. Ct. at 194. See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476 (2008) (“Because every battery includes an assault, we need only focus on the elements of criminal battery”). An offensive touching is one committed without the victim's consent. See Hartnett, supra at 477. Here, the jury could have reasonably inferred that the defendant committed an offensive touching of the victim's breasts.

The victim testified that she got into a physical struggle with the defendant, and that he pushed her away from the door when she tried to escape and away from the window when she tried to call for help. The defendant admitted to the detective that he moved the victim away from the window. When the victim was later examined at the hospital, she noticed injuries to her breast area.⁶ Viewing the evidence in the light most favorable to the Commonwealth, it was sufficient to permit the jury to find that the defendant intentionally touched the victim's breasts without her consent. See Parreira v. Commonwealth, 462 Mass. 667, 672 (2012) (“testimony that the defendant ‘physically moved’ [the victim] to another room sufficiently evidenced an offensive touching, and, thus, a battery”); Hartnett, 72 Mass. App. Ct. at 476 (defendant committed offensive touching by grabbing victim and tickling her before she was able to escape).

While framing his challenge as one of sufficiency, the defendant argues, in essence, that the verdicts were factually inconsistent, claiming that it was “patently unreasonable” for the jury to acquit the defendant of the other charges but convict him of kidnapping and assault and battery. It is well established, however, that factual inconsistency is not a basis for reversal. See Commonwealth v. Resende, 476 Mass. 141, 147 (2017). And in any event, the verdicts were not factually inconsistent; the jury were entitled to believe some, but not all, of the victim's testimony. See Commonwealth v. Spinucci, 472 Mass. 872, 878 (2015).

Closing argument. The defendant argues that several comments in the Commonwealth's closing argument, which he did not object to, were improper. We agree with the Commonwealth that the defendant's presentation of these claims does not rise to the level of adequate appellate argument. Nevertheless, we have reviewed the closing argument and conclude that it was proper and did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 142 (2001).

The defendant first claims that the Commonwealth improperly vouched for the victim's credibility. Counsel may not “express[ ] a personal belief in the credibility of a witness, or indicate[ ] that he or she has knowledge independent of the evidence before the jury,” but may “argue from the evidence why a witness should be believed” when the witness's credibility is at issue. Commonwealth v. Guy, 441 Mass. 96, 112-113 (2004) (quotations omitted). Here, the Commonwealth's suggestion that the victim did not have a motive to lie was supported with evidentiary references and was not improper vouching but, rather, a fair response to the defendant's attack on the victim's credibility. See Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). The Commonwealth did not improperly suggest, either implicitly or explicitly, that the victim should be considered more credible because she came to court to testify. See Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 180 (2008).

The defendant next argues that the Commonwealth improperly “denigrated” his character by suggesting that he lied. But the defendant testified in his own defense, and a prosecutor “may properly attack the credibility of witnesses, including the defendant.” Commonwealth v. Donovan, 422 Mass. 349, 357 (1996). The prosecutor's comment was also properly based in the evidence.

Last, the defendant argues that the Commonwealth improperly questioned the testimony of its own witness, the responding EMT, who observed that the victim was “dressed up a little bit” and looked “as if she was going to work.” The Commonwealth, in response to the defendant's closing argument, suggested that the EMT could have been wrong about the victim's appearance. This was proper argument, and the defendant provides no authority that suggests otherwise. We also note that the judge instructed the jury that closing arguments are not evidence and that the jury's returning five not guilty verdicts demonstrated that they carefully considered the evidence presented.

Judgments affirmed.

FOOTNOTES

3.   The jury acquitted the defendant of aggravated rape, assault by means of a dangerous weapon, strangulation or suffocation, attempted murder, and assault and battery (to wit, grabbing hair).

4.   The verdicts suggest that the jury rejected some of the victim's testimony, including that the defendant forced her upstairs by pointing a knife at her and dragging her by her hair.

5.   The victim's statement to the EMT was admitted as an excited utterance.

6.   The Commonwealth also introduced the victim's medical records, which indicated trauma to her chest.