Commonwealth v. Raagas

82 Mass.App.Ct. 1120

977 N.E.2d 106

COMMONWEALTH

v.Manuel RAAGAS.

No. 11–P–1989.

Appeals Court of Massachusetts.

November 7, 2012.

OPINION TEXT STARTS HEREBy the Court (CYPHER, KATZMANN & MILKEY, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a five-day jury trial in Superior Court, the defendant was convicted of rape of his seventeen year old daughter, Sandra,¹ two counts of indecent assault and battery on a person under the age of fourteen, and two counts of indecent assault and battery on a person fourteen or over. He now appeals from the rape conviction.²

Discussion. 1. Dismissal of the rape indictment. The indictment charged that in August, 2001, the defendant did commit rape upon Sandra, “to wit, tongue in child's genital opening.” On appeal, the defendant argues that the motion judge committed reversible error by denying his motion to dismiss the rape indictment. More specifically, he argues that the Commonwealth presented insufficient evidence to the grand jury to establish probable cause for two of the necessary elements of the crime: (a) penetration and (b) lack of consent. We review the motion judge's determination for an abuse of discretion. Commonwealth v. Little, 453 Mass. 766, 772 (2009). A grand jury “must hear sufficient evidence to establish ... probable cause to arrest.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). In arriving at this determination, a grand jury may rely on hearsay evidence. Commonwealth v. Gibson, 368 Mass. 518, 523 (1975).

a. Penetration. It is well-established that penetration is defined as including “intrusions ... into the genital ... opening of another person's body.” Commonwealth v. Nylander, 26 Mass.App.Ct. 784, 789 (1989), quoting from Commonwealth v. Gallant, 373 Mass. 577, 584 (1977). Penetration of the anterior parts of the female sex organ is sufficient to demonstrate forcible rape. See ibid.

Here, the Commonwealth presented evidence of the rape to the grand jury via the testimony of Alicia Compitello, a child interview specialist at the Middlesex County district attorney's office. Compitello related her memory of a recorded interview conducted on January 10, 2004, between Sandra and Ann Beck, a sexual abuse case interviewer with the Middlesex County district attorney's office. Compitello testified that in the interview, Sandra related the details of the August, 2001, rape. More specifically, Sandra explained that the defendant licked all around and up and down her vagina. As the motion judge correctly found, Compitello provided sufficient evidence for the grand jury to establish probable cause that Raagas penetrated Sandra's vagina.³

The defendant cites a number of cases for the proposition that the Commonwealth was required to provide more specific, detailed testimony about the rape. See, e.g., Commonwealth v. Donlan, 436 Mass. 329, 336 (2002); Commonwealth v. Nylander, 26 Mass. Ct. at 785–786. These cases are distinguishable and inapposite because they concern the sufficiency of trial testimony, rather than the question whether testimony before a grand jury was sufficient to make out probable cause to indict. Moreover, the fact that other cases exist in which the victim's testimony offered more “gynecological specificity” (in the defendant's words) does not mean that this victim's testimony was insufficient.

b. Lack of consent. This court has held that evidence of a pattern of sexual abuse by a parent or other authority figure, over a long period of time, permits the inference that the charged intercourse was accomplished by constructive force. See Commonwealth v. Newcomb, 80 Mass.App.Ct. 519, 522–523 (2011). Here, at the grand jury hearing, through the testimony of Compitello, the Commonwealth established a lengthy history of sexual abuse by the defendant against his daughter. Given the defendant's relative position of authority over Sandra, as well the history of abuse, the grand jury reasonably determined sufficient probable cause to establish lack of consent.

2. Motion for required finding of not guilty. Raagas argues that the trial judge erred in denying his motion for required finding of not guilty because the Commonwealth presented insufficient evidence to establish that Sandra resisted or communicated a lack of consent. Under the familiar standard, we consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the...