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Appeals Court of Massachusetts.



Decided: October 04, 2021

By the Court (Meade, Shin & Walsh, JJ.1)


After a jury trial, the defendant was convicted of multiple counts of rape, incest, and indecent assault and battery on a person over fourteen years of age, as well as trafficking of a person under eighteen years of age for sexual servitude.2 On appeal, he claims that there was insufficient evidence to support his convictions for rape and indecent assault and battery, the judge improperly excluded evidence, and the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.

1. Sufficiency of the evidence. “When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ․ Rather, the relevant ‘question is 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.’ Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).” Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009).

a. Rape. Sufficiency of the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass. at 677-678. In this case, to establish the defendant's guilt of rape in violation of G. L. c. 265, § 22 (b), the Commonwealth must prove two elements beyond a reasonable doubt: first, that there was sexual intercourse between the defendant and the victim; and second, that the defendant compelled the victim to submit to intercourse “by force or threat of force and against the will of the victim.” Commonwealth v. Lopez, 433 Mass. 722, 726 (2001). “The second [element] has been interpreted ‘as truly encompassing two separate elements: force or threats, and lack of consent.’ ” Commonwealth v. Sherman, 481 Mass. 464, 471 (2019), quoting Lopez, supra at 727.

The defendant claims the Commonwealth presented insufficient evidence on two counts of rape, i.e., counts 3 and 11. As noted above, the defendant was acquitted of count 11, and no further discussion is required. See note 1, supra. As to count 3,3 the defendant claims that there was insufficient evidence that he committed the rape with force, or that there was lack of consent. We disagree.

“Proof of the force element of rape ․ may be established by physical force or constructive force.” Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 254 (2008). Constructive force may be “by threatening words or gestures and operates on the mind” to instill fear in the victim in order for the defendant to achieve his goal. Commonwealth v. Caracciola, 409 Mass. 648, 652 (1991), quoting Commonwealth v. Novicki, 324 Mass. 461, 467 (1949).

In the light most favorable to the Commonwealth, there was ample evidence from which the jury could have rationally concluded that the defendant raped the victim by employing constructive force. Indeed, the evidence showed that when the victim's mother sought the defendant's help in getting the victim away from the world of prostitution, the defendant instead got her drunk, raped her, impregnated her, and then sold her to strangers as a prostitute. These acts demonstrated his control over the victim. That is, constructive force was established through evidence that the relationship the defendant had with the victim was such that he could overbear the will of the victim without overt physical acts. His conduct and control over the victim operated on her mind to permit him to achieve his goal. See Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 417-418 (2010).

Finally, and contrary to the defendant's suggestion,4 his role as the victim's father/authority figure contributed to the jury's ability to find that he exercised constructive force over her, even though he was an absentee father for fourteen or fifteen years. In fact, the defendant's help was sought by the victim's mother because he was the victim's father. However, rather than being a role model, the defendant squandered his opportunity to help the victim, and instead manipulated and took advantage of the vulnerable teenaged victim. This too helped paint a sufficient picture of constructive force. See Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 521-523 (2011).

The defendant also claims that the evidence was insufficient to establish that the victim did not consent to the defendant's assaults. We disagree. “To satisfy the lack of consent element in a typical case, the Commonwealth must prove that ‘at the time of penetration, there was no consent.’ ” Sherman, 481 Mass. at 471, quoting Lopez, 433 Mass. at 277. Here, the victim, often plied with alcohol, did not convey any form of consent, either explicit or implicit, that she was “okay” with the defendant's actions. Rather, the evidence revealed the victim's reactions immediately after each instance of sexual abuse, including that she felt uncomfortable, awkward, sad, and disgusted. From these reactions, the jury were free to conclude that she had not consented to these assaults. See Commonwealth v. Leroux, 12 Mass. App. Ct. 886, 886 (1981).

b. Indecent assault and battery. The defendant also claims that there was insufficient evidence to prove lack of consent with respect to count 6, which charged the defendant with touching the victim's vagina, and count 14, which charged him with touching the victim's anus with his penis. We disagree.

“ ‘To prove indecent assault and battery on a person age fourteen or older, the Commonwealth is required to establish that the defendant committed an intentional, unprivileged, and indecent touching of the victim’ without the victim's consent.” Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232 (2020), quoting Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018). Here, the defendant claims only that the evidence was insufficient to prove lack of consent.

Lack of consent may be established without explicit verbal expression, and it may be inferred from the overall facts and circumstances surrounding the sexual assault. See Commonwealth v. Shore, 65 Mass. App. Ct. 430, 432-433 (2006). As recounted above relative to the defendant's rape convictions, after each of the intentional, indecent touchings, the victim felt disgust, discomfort, and sadness. From this evidence, and from the circumstances underlying the assaults,5 the jury were entitled to find the victim did not consent.

2. Excluded testimony. We review a judge's evidentiary rulings for an abuse of discretion. See Commonwealth v. Rosa, 468 Mass. 231, 237 (2014). A “judge's discretionary decision constitutes an abuse of discretion [when] ․ the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the defendant claims that the judge improperly excluded proposed testimony from the defendant's cousin that she heard the victim tell the defendant, “Watch, I'm going to get you.” This exclusion, the defendant claims, deprived him of his right to present a complete defense. We disagree.

The defendant and his cousin went to the hospital to visit the victim. During direct examination, defense counsel asked the cousin if the victim said anything to the defendant at the hospital. The prosecutor objected, and at sidebar, counsel explained that the alleged threat was not being offered for its truth, but only to establish a motive for the victim to lie.6 The judge sustained the prosecutor's hearsay objection.

As the judge reasoned, the statement was only relevant if it was considered for its truth, i.e., the victim was going to “get” the defendant, and the defense would argue that, as promised, the victim got revenge on the defendant by lying at trial. This was not an abuse of discretion. See L.L., 470 Mass. at 185 n.27.

For the first time on appeal, the defendant claims that the statement was admissible under the state of mind exception to the hearsay rule. In that posture, we review only to determine if there was error, and if so, whether it created a substantial risk of a miscarriage justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). “[T]he state of mind exception applies to ‘[s]tatements, not too remote in time, which indicate an intention to engage in particular conduct.’ ” Commonwealth v. Fredette, 97 Mass. App. Ct. 206, 219 (2020), quoting Mass. G. Evid. § 803(3)(B)(ii) (2019). While this may have been a ground for admission of the statement, the judge did not have the opportunity to view the issue through this lens. Even if the statement was not too remote in time, it did not indicate the victim's intention to engage in particular conduct. Rather, even if understood as a threat, it remained ambiguous, if not amorphous. But see Commonwealth v. Fernandes, 427 Mass. 90, 95 (1998) (declarant's threat to “get” someone “admissible to show that the declarant had a particular state of mind and that he carried out his intent”).

In the end, even if the statement would have been admissible under the state of mind exception, its exclusion did not create a substantial risk of a miscarriage of justice. Even without the evidence, the defendant argued in closing that the victim only disclosed the assaults after being in the hospital for weeks, and only after the defendant came to see her. He also made much of the victim's inconsistent statements and the “holes” in her story. Against the attack on the victim's credibility was the overwhelming evidence of the defendant's guilt, not the least of which included DNA evidence that established a 99.997 percent probability that the defendant was the father of the victim's aborted child.

3. Closing argument. Finally, for the first time on appeal, the defendant claims certain portions of the prosecutor's closing argument constituted errors which created a substantial risk of a miscarriage of justice. We disagree.

a. The victim's state of mind. The defendant claims that when the prosecutor asked the jury to “[t]hink about [the victim's] state of mind,” it was tantamount to asking the jurors to put themselves in the victim's shoes. See Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 809 (2009) (“The invitation to jurors to put themselves in the position of the victim is usually improper”). We disagree.

Here, the prosecutor made an evidence-based argument regarding the victim's state of mind relative to the question of consent. As the Commonwealth was required to prove the element of nonconsent for the rape and indecent assault and battery charges, it was entirely proper to ask the jury to think about the victim's state of mind, and to recount what had occurred and argue why these crimes were committed against her will and without her consent. There was no error, and thus, no risk that justice miscarried. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 821 (2018).

b. Parenting. The defendant also claims that the prosecutor improperly injected her personal opinions and inflamed the jury's passion in her closing argument. In particular, the defendant takes issue with the prosecutor's contrasting what good parenting involves, e.g., properly attending to the needs of toddlers to teenagers, versus the defendant's sexual misdeeds with his daughter.

In the defendant's opening statement, he utilized the theme of “parenting is hard.” He continued this theme in his closing argument where he characterized the defendant as a “caring father” who came to his daughter's aid during her time of need, a father who gave up his bed at his mother's house and slept on the couch instead, which was at odds with the Commonwealth's allegations. To these arguments, the prosecutor was entitled to fairly respond, with reference to the evidence that the defendant's sexual misconduct with his daughter was not parenting at all. See Commonwealth v. Smith, 404 Mass. 1, 7 (1989) (prosecutor “entitled to make a fair reply to the defendant's closing argument”). The prosecutor's argument, including her characterization of the defendant as a “manipulative predator,” was not a statement of her opinion or an appeal to emotion, but rather was a proper response to the defendant's argument supported by inferences from the evidence.7 See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001). There was no error, and thus, no risk that justice miscarried. See Chambers, 93 Mass. App. Ct. at 821.

Judgments affirmed.


2.   The defendant was acquitted of one count each of rape and incest, i.e., counts 11 and 12.

3.   Count 3 concerned the defendant's rape of the victim, then over sixteen years of age, in his car on September 3, 2016.

4.   The defendant claims that he cannot be considered an “authority figure” for the victim not only because the victim was raised without the defendant's presence save a few occasions, but also because the victim had no memories of her time spent with the defendant. “However, to indulge this argument, we would have to view the evidence in the light least favorable to the Commonwealth, which, of course, we cannot do.” Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010). See Commonwealth v. James, 30 Mass. App. Ct. 490, 491 n.2 (1991). See also Palmariello v. Superintendent of Mass. Correctional Inst. Norfolk, 873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989) (appellate court not obligated to “reread the record from a [defendant's] perspective”).

5.   The evidence supporting count 6 included the fact that after the defendant got the victim intoxicated with alcohol, he drove her to a remote, dark area and parked the car. The defendant then kissed the victim, groped her leg, moved her underwear and shorts, touched her vagina, removed his fingers, and smelled them. This was not “okay” with the victim, it was “wrong.” The evidence supporting count 14 included that the defendant again plied the victim with alcohol, drove her to a parking lot, made her change into a summer dress, positioned the victim “on all fours” in the back seat of the car, vaginally raped her, and at one point took out his penis and rubbed it around her anus. The victim was not “okay” with this, and she felt “violated.”

6.   At no point during the victim's testimony was she asked if she had threatened the defendant. Given this, as the prosecutor maintained at trial, the statement could not be used to impeach the victim.

7.   The defendant also claims error when the prosecutor likened the victim's mother entrusting the victim to the defendant's care as “sending her daughter into the lion's den.” While the use of hyperbole is often characterized as “enthusiastic rhetoric” or “strong advocacy,” Commonwealth v. Collazo, 481 Mass. 498, 504 (2019), in the circumstances here, when we view the prosecutor's argument as a whole, along with the judge's instructions relative to closing arguments, the prosecutor's use of the phrase is excusable, and it did not create a substantial risk of a miscarriage of justice.

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