Commonwealth v. Seesangrit

99 Mass.App.Ct. 83

162 N.E.3d 1247

COMMONWEALTH

v.Parkpoom SEESANGRIT.

No. 19-P-1211

Appeals Court of Massachusetts, Hampden..

Argued September 15, 2020

Decided January 19, 2021

Andrew P. Power, Salem, for the defendant.

Kerry L. Koehler, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Sullivan, & Englander, JJ.

ENGLANDER, J.

This case presents issues regarding the application of the rape statute to a medical provider's actions when caring for a patient in a nursing center. In 2014, the defendant was employed as a certified nurse's assistant (CNA) at the East Longmeadow Skilled Nursing Center (nursing center). On the evening of May 6, 2014, he was found in one of the rooms, behind a curtain, with a sixty-nine year old female patient who suffered from dementia, and who was naked from the waist down. The defendant claimed that he had been performing a perineal cleaning of the patient's private area, because she smelled of urine. In an interview with the police that evening, the defendant admitted that he put his fingers inside the patient's vagina, but he maintained that this was appropriate medical procedure for cleaning the patient.

After a bench trial, the defendant was convicted of one count of rape. He appeals from the conviction and from the denial of his motion for a new trial, asserting ineffective assistance of counsel. While he raises a number of issues, the defendant's lead argument is that the rape statute, G. L. c. 265, § 22 (b ), is void for vagueness because it fails to distinguish adequately between conduct that constitutes rape, and conduct that constitutes appropriate medical practice. We conclude that there is no such infirmity in the Massachusetts rape law, and that on the facts presented there was sufficient evidence of rape. Perceiving no other error that could upset the judgment of conviction, we affirm.

Background. On May 6, 2014, a nurse at the nursing center walked into a male patient's room and found the defendant coming out from behind the curtain dividing the two beds in the room. She testified that the defendant's reaction seemed odd, so she pulled back the curtain and found a female resident lying on the bed, naked from the waist down, with her legs spread open. Under the nursing center policies, the defendant, a male, was not supposed to care for female patients. The nurse asked the defendant, "[W]hat did you do?" The defendant didn't respond at first, so she "kept screaming the same, like what did you do, what –- it looks really bad for you, what did you do?" The defendant then responded, "I know, I'm sorry, I know I'm in trouble." The nurse continued "screaming" at him until "finally he said I was changing her, she was wet."

The nurse testified that the patient's pull-up brief was on the floor next to the bed and that the brief was dry. A second nurse also responded to the incident, and the two nurses conducted an examination of the patient. Their accounts differ slightly, but the differences are not material. One nurse testified that she saw a trace amount of blood in the patient's vagina, while the other testified that she observed only slight irritation and no blood. In the meantime, the brief had been replaced on the patient; both nurses testified that when they removed the brief to examine the patient, there was some blood on the brief.

Someone called the East Longmeadow Police Department. The defendant, who had been sent home, was called back to the nursing center where he met Police Officer Michael Ingalls, who asked whether he would answer questions about the incident at the police station. The defendant agreed. The defendant was twenty-four years old at the time, and had spent most of his life in Thailand. Although English was not his first language, he was a student at American International College, and able to converse in English. The defendant was advised of his Miranda rights at the station, and signed a card stating that he understood them.

During the thirty-six-minute recorded interview that followed, the defendant made multiple statements to the effect that "I put my fingers inside her vagina," and that he had inserted them "[o]ne inch[ ]" deep. The defendant explained that he was cleaning the patient with a washcloth because she smelled of urine, and that while doing so he cleaned the "inside." The defendant went on to state that he also put his fingers inside, without using the washcloth.¹

The Commonwealth presented the video recording of the defendant's statement during its case-in-chief. In addition, both nurses who examined the victim at the nursing center testified.

One of those nurses testified that she had "never" penetrated inside a patient's vagina while conducting a perineal cleaning.

The victim also was examined by a sexual assault nurse examiner (SANE) at a local hospital on the evening of the incident. Over the defendant's objection, a forensic scientist from the Massachusetts State Police crime laboratory testified that three sperm cells were detected on the swab taken from the victim's external genitals. The forensic scientist further testified, based on a Y-STR profile of the sperm cells, that the defendant's Y-STR deoxyribonucleic acid (DNA) profile was "consistent with the profile" of the sperm cells, that 99.7% of Asian males living in the United States could be excluded as the source of the cells, but that the defendant could not be excluded.

At trial, the defendant testified and presented a different interpretation of the events. He testified that he was "very confused" during the interrogation by Officer Ingalls, and that in fact he had not entered the victim's vagina with his fingers, but had merely "lift[ed] open and clean[ed]" the patient's labia. He attributed his prior statements to Officer Ingalls, to a misunderstanding over the word vagina. The defendant also testified about his challenging work and school schedule and his lack of sleep, and suggested that this impacted his ability to respond correctly to questions on the night of the incident. The defendant further testified that his reaction when the nurse opened the curtain did not stem from a fear of being caught mistreating the patient, but instead arose from the fact that he had been found violating the nursing center rule. In her closing argument, defense counsel contended that the defendant's inculpatory statements were suggested to him by Officer Ingalls, who had taken advantage of the defendant's poor command of English.

The trial judge, acting as fact finder, convicted the defendant of one count of rape. Subsequently, the defendant moved for a new trial, asserting ineffective assistance of counsel. The defendant raised a variety of grounds, including that counsel did not adequately pursue expert testimony to address the suggestiveness of the police interview, or to counter the DNA evidence. The trial judge denied the motion in a comprehensive memorandum of decision and order. The defendant appeals from both the judgment of conviction and the order denying his motion for a new trial.²

Discussion. 1. The vagueness argument. We first address the defendant's argument that the rape statute is void for vagueness, as applied to a medical practitioner providing perineal care. The rape statute, G. L. c. 265, § 22 (b ), prescribes punishment for a person who "has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will." The elements of the crime are set forth in the cases.

"[T]he 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 the intercourse ‘by force or threat of force and against the will of the victim.’ Commonwealth v. Lopez, 433 Mass. 722, 726 [745 N.E.2d 961] (2001). See G. L. c. 265, § 22 (b ) (‘compels such person to submit by force and against his [or her] will, or ... by threat of bodily injury’).... The second [element] has been interpreted ‘as truly encompassing two separate elements’: force or threats, and lack of consent" (citation omitted).

Commonwealth v. Sherman, 481 Mass. 464, 471, 116 N.E.3d 597 (2019).

Sexual intercourse is defined as "the penetration of the female sex organ by the male sex organ." Commonwealth v. Gallant, 373 Mass. 577, 584, 369 N.E.2d 707 (1977). Unnatural sexual intercourse involves penetration by other means -- such as, in this case, a finger. Id. Furthermore, "penetration" does not require actual entry into the vagina; the cases establish that "[t]ouching ... of the vulva or labia ... is intrusion enough" (citation omitted). Commonwealth v. Donlan, 436 Mass. 329, 336, 764 N.E.2d 800 (2002).

Finally, the Commonwealth is not required to prove a specific intent to have intercourse to which the victim did not consent. Rape is a general intent crime, and "proof that a defendant intended sexual intercourse by force coupled with proof that the victim did not in fact consent is sufficient to maintain a conviction." Lopez, 433 Mass. at 728, 745 N.E.2d 961.

The defendant argues that given the above definition of the elements of rape, he could be found guilty simply for performing perineal cleaning, which is a necessary and accepted medical procedure for cleaning the private area around a woman's vagina. The defendant argues that the perineal cleaning procedure requires manipulation of a woman's vulva and labia in a manner that constitutes penetration under our cases. See Donlan, 436 Mass. at 336, 764 N.E.2d 800. He urges that the Legislature could not have intended such an appropriate medical procedure to constitute rape, but that the present law does not expressly except or exonerate such an appropriate medical procedure. He thus posits that the line between lawful and unlawful conduct is unacceptably vague.

The defendant's void for vagueness argument was not raised before the trial judge, and accordingly our...