Com. v. Leblanc

921 N.E.2d 933

456 Mass. 135

COMMONWEALTH v. Gary LeBLANC.

SJC-10459

Supreme Judicial Court of Massachusetts, Worcester.

Argued December 9, 2009.

Decided February 18, 2010.

Debra S. Krupp, Boston, Committee for Public Counsel Services, for the defendant.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

IRELAND, J.

The defendant was convicted of rape (two indictments), indecent assault and battery, drugging a person for unlawful sexual intercourse, distribution of cocaine, procuring liquor for a person under twenty-one years of age, and a drug violation in or near a school or park. He appealed, and the Appeals Court affirmed all but his conviction of drugging a person for unlawful sexual intercourse, which was vacated on the ground that an error in the jury instruction was prejudicial to the defendant. Commonwealth v. LeBlanc, 73 Mass.App.Ct. 624, 630, 633, 900 N.E.2d 127 (2009). We granted both the Commonwealth's and the defendant's applications for further appellate review, limited to the convictions of drugging a person for unlawful sexual intercourse, rape, and indecent assault and battery. We affirm the defendant's convictions of rape and indecent assault and battery. Because, as we interpret the statute on drugging a person for unlawful sexual intercourse, there was insufficient evidence to support the defendant's conviction, we reverse his conviction, set aside the verdict, and enter judgment for the defendant on that indictment.

Facts and background. We present the essential facts the jury could have found, the details of which are set forth in Commonwealth v. LeBlanc, supra.

In 2004, the victim was an eighteen year old woman and a senior in high school. Through friends and family, she had known the defendant, an approximately fifty year old attorney, since she was twelve years old. In the months before the incident, the victim, who weighed approximately 119 pounds, was drinking frequently and had used cocaine five or six times, including an incident in December, 2003, where the defendant provided the cocaine. Beginning in December, 2003, the defendant also had made sexual overtures to the victim, which she rebuffed, sometimes laughingly. Several times she explained to the defendant that she had a boy friend.

The events at the center of this case took place on February 1 and 2, 2004. The victim attended two "Super Bowl" parties on February 1, and consumed alcoholic drinks at both. The defendant was present at the second party. There, he and the victim ingested cocaine twice. The defendant expressed interest in dating the victim, but she declined. He invited the victim to his house for a party that same evening. Although the victim declined the invitation, she could not sleep because of her ingestion of cocaine, and at approximately 1 A.M. on February 2, she went to the defendant's house.

When she arrived, only the defendant was there. She consumed more alcohol, cocaine, and marijuana, all provided by the defendant. The victim testified that the pair stayed up all night talking. In the morning, the victim went to school, but she left twice, each time returning to the defendant's house. During the first time she returned, she drank a beer and used cocaine. The second time she returned, she was "still ... drunk and high."

During this second visit, she drank more beer and ingested more cocaine. The defendant again made advances toward the victim that she rebuffed. The defendant served her wine, and the victim had three to four glasses. Because of the cocaine, the victim was not hungry and had almost nothing to eat that day; the last food she had eaten was when she was at the first "Super Bowl" party the night before. Moreover, she consumed approximately twelve beers at the defendant's house on February 2.

After the victim consumed the wine, the pair retreated to the defendant's bedroom, where the defendant kept cocaine. The victim testified that while in the bedroom she did not remember what happened, but she realized her "clothes came off" because the defendant was kissing her vagina. When she tried to move away, he told her to "do another line" of cocaine, which she did. She stated that she sat back down on the bed and "remember[ed] being in [the defendant's] bed [and] putting my clothes back on a few times, and then them coming off again." She did not recall how they came off, but remembered putting them back on. The defendant also sucked on her breasts, and licked and touched her vagina and penetrated it with his finger. She testified that she told him, "No. We're just friends."

At approximately 9 P.M., three of the victim's friends arrived at the defendant's house, went up to the bedroom, knocked on the door, and told the victim she had to leave with them. Although the victim answered that she was coming, when she did not, one friend opened the door. The friends testified that the victim was dirty and her hair was in "knots" and messier than if she had just been sleeping. She smelled of alcohol, seemed to be under the influence of drugs or alcohol, was slurring her words, and "seemed like she didn't know what was going on or why they were there." The friends had to help her put her shirt on. They saw her jaw moving in a peculiar manner, although there were no words coming out. The victim was wobbly and unsteady on her feet, and her friends helped her get down the stairs from the defendant's bedroom and had to help her into their vehicle. Her friends drove her to her father's house.

The victim's father testified that, when she arrived, she looked like a "zombie"; she was screaming and crying and unable to focus. He also noticed her "involuntary jaw movement" and that she could not speak. Indeed, the victim testified that for a day or so after she left the defendant's house she could not eat because her mouth was sore from her chewing on her mouth and lips, something she did when she ingested cocaine. Her father brought her to a police station. The officer who interviewed her the evening of February 2 testified that she was intoxicated, crying, and upset. The victim had no clear memory of what she told this officer.¹

Rape and indecent assault and battery. The defendant acknowledged that he and the victim engaged in sexual activity, and there was no allegation that the defendant used force. At trial on the rape and indecent assault and battery charges, the Commonwealth bore the burden of proving, beyond a reasonable doubt, that the victim's consumption of drugs and alcohol rendered her incapable of consenting to sexual contact with the defendant.² See Commonwealth v. Moran, 439 Mass. 482, 490, 789 N.E.2d 121 (2003), citing Commonwealth v. Simcock, 31 Mass.App. Ct. 184, 188, 575 N.E.2d 1137 (1991) (Commonwealth's proof of lack of consent same in both rape and indecent assault and battery cases). "[A]n instruction concerning the capacity to consent should be given in any case where the evidence would support a finding that because of the consumption of drugs or alcohol or for some other reason ... [a person is] so impaired as to be incapable of consenting to sexual intercourse." Commonwealth v. Blache, 450 Mass. 583, 591-592, 880 N.E.2d 736 (2008).

At the close of the Commonwealth's case, the defendant filed a motion for required findings of not guilty, which he renewed at the close of all the evidence, arguing that there was no evidence that the complainant could not consent to the sexual contact. The defendant argues on appeal that because of a lack of evidence, the trial judge erred in instructing the jury on incapacity to consent. We disagree.

Viewing the evidence in the light most favorable to the Commonwealth, there was ample evidence for the jury to conclude, beyond a reasonable doubt, that the victim was so impaired as to be incapable of consenting. See Commonwealth v. Ellis, 432 Mass. 746, 762, 739 N.E.2d 1107 (2000); Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). On February 2 alone, the victim, who had not eaten, consumed a dozen beers, three to four glasses of wine, and ingested a quantity of cocaine, some of it at the defendant's urging during the assaults. The jury were warranted in believing the victim's testimony that she did not know how her clothes came off, and that she put them back on several times. They reasonably could have inferred that the victim faded in and out of consciousness and achieved some level of awareness that her clothes were off only when she was roused by the defendant's performing sexual acts on her. Her testimony of her general state was corroborated by the testimony of the friends who found her, her father, and the first police officer who interviewed her. These facts are consistent with facts in other cases where the court has held that the instruction was warranted. See, e.g., Commonwealth v. Moran, 439 Mass. 482, 490-491, 789 N.E.2d 121 (2003) (instruction on capacity to consent warranted where complainant had been drinking, had glassy and bloodshot eyes, and was swaying; ingested Percocet; and testified that she felt drugged and that she was sleeping but awoke each time the defendant committed sexual acts on her); Commonwealth v. Helfant, 398 Mass. 214, 221-222, 496 N.E.2d 433 (1986) (victim injected with Valium and awoke from her unconscious stupor only when jarred by telephone ringing or motion of defendant's body on top of hers).

On cross-examination, the victim agreed that in the "early evening" she performed "some degree of oral sex" on the defendant and that he did not "force" her. The defendant interprets her statement that there was no force to mean that she voluntarily performed oral sex and argues that it shows that she was capable of consenting to all the sexual acts that occurred. We disagree. The jury reasonably could have inferred from this testimony that the incident occurred earlier in the evening...