Commonwealth v. Torres

90 Mass.App.Ct. 1104

57 N.E.3d 1065 (Table)

COMMONWEALTH

v.Ezequial TORRES.

No. 14–P–1534.

Appeals Court of Massachusetts.

September 2, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of rape (in violation of G.L.c. 265, § 22 [b] ) and assault and battery (in violation of G.L.c. 265, § 13A [a] ) by a Superior Court jury. We reverse.

Background. A jury could have found as follows. In the spring of 2012, the defendant and the complainant had been in a dating relationship for between eight and ten years.¹ Their relationship was a volatile one. The complainant obtained multiple restraining orders against the defendant over the years and there was at least occasional police intervention. For example, once, “a long time ago” according to the complainant,² the defendant became violent when the complainant declined to have sex with him, and officers were called to intercede. Nevertheless, the relationship continued with at least intermittent cohabitation and the birth of a shared child who was three years old at the time of trial in October, 2013.

By April of 2012, the couple had been arguing frequently for four or five months and the relationship was coming to an end. It is during this time that the complainant alleges that the defendant raped her numerous times, specifically at least once on April 12, and both raped and assaulted and beat her between May 1 and May 19. On May 21, a fight at the complainant's father's house in Holyoke marked the complete breakdown of the relationship and resulted in the defendant's arrest on a separate charge of assault and battery and the issuance of a new restraining order.

The evidence at trial consisted solely of the testimony of the complainant and her stepmother, the latter as a first complaint witness for the alleged rape on April 12.³ No exhibits were admitted, and the defendant did not call any witnesses. Although the jury heard evidence of bad acts that the defendant committed before, between, and after the incidents underlying the indictments (including assertions of uncharged “sexual assaults” and “rapes”⁴ ), the only charges at issue concerned April 12, 2012, and the period from May 1 to May 19, 2012. The jury acquitted the defendant of the alleged rape on April 12 (count 3), but convicted him of rape (count 1) and assault and battery (count 2) for conduct between May 1 and May 19.

Discussion. The defendant contends that the Commonwealth presented insufficient evidence of force to sustain his rape conviction and no evidence that would support his assault and battery conviction. He also challenges the admission of the 2007 prior bad act evidence. Because we determine that the evidence underlying the defendant's convictions was insufficient even with the prior bad act evidence in the record, we do not address the propriety of the admission of that evidence.

1. The rape conviction. a. Sufficiency of evidence. We review the denial of the defendant's motions for a required finding of not guilty to determine 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” (emphasis original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). The current rape statute, G.L.c. 265, § 22(b), as amended by St.1980, § 459, provides: “Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.” The essential elements that the Commonwealth must prove beyond a reasonable doubt in order to sustain a conviction of rape are that the defendant committed (1) sexual intercourse (2) by means of either physical force, nonphysical/constructive force, or threats of bodily harm (either explicit or implicit) and (3) that at the time of penetration, there was no consent. See Commonwealth v. Lopez, 433 Mass. 722, 726–727 (2001). Unlike other jurisdictions where “physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful,” id. at 728, quoting from In re M.T.S., 129 N.J. 422, 444 (1992), the Massachusetts statute, in following the common law, does require that the force necessary for rape be more than that inherent in the act of sexual penetration. Ibid. The defendant concedes that based on the complainant's testimony that there had been vaginal and anal penetration, and that the sexual relationship was not consensual,⁵ the evidence of sexual intercourse and lack of consent was sufficient with respect to count 1 (charging rape between May 1 and May 19, 2012).⁶ However, he contends that there was insufficient evidence of force or threat of force because the Commonwealth failed to present any evidence of force in conjunction with the sexual encounter as required by the statute.

At trial, the Commonwealth proceeded on the theory of actual physical force in addition to sexual penetration. However, the closest the prosecutor came to eliciting evidence of force in connection with the incident in May came on redirect examination of the complainant when the prosecutor asked if the defendant had sexually assaulted her on “May 12.” The complainant replied, “[t]hat was the last time, yes, like smacked me and just pulled my shift shirt off and stuff like that.” But then, apparently believing that she herself had mixed up the dates in the form of the question (there had never been a date certain for the May incident), the prosecutor said, “Strike that. Did the defendant sexually assault you on April 12.” The sum total of the complainant's testimony on direct examination concerning the alleged rape in May is set out in the margin.⁷

The Commonwealth does not rely on the self-stricken redirect testimony on appeal. Instead, the Commonwealth argues that even though the complainant's statement that she had been “raped” again in May “was made without explication,” the jury could have reasonably inferred from her statement, “[t]hat time I just whatever,” that her “will was overborn[e] by her fear of denying the defendant's sexual demands based on her prior experiences of telling him ‘no.’ “ Relying on Commonwealth v. Caracciola, 409 Mass. 648, 651–652 (1991), the Commonwealth argues that use of force or threat of force is not required where a victim's consent was obtained from fear of the defendant's conduct and that the nature of the relationship between the defendant and the complainant here furnishes the necessary evidence of fear.

In short, though the Commonwealth's case at trial proceeded on the basis of actual force—and, indeed, in her closing argument the prosecutor (apparently confusing the evidence relating to the April 12 incident charged in count 3 and the May incident) misstated the evidence to indicate supplemental force when such evidence was absent⁸ —the Commonwealth on appeal does not now argue that there was evidence of actual force but rather is arguing the different theory of constructive force. The Commonwealth's assertion on appeal that “[a]s to the May rape, the Commonwealth proceeded on a theory of constructive force” is not accompanied by any transcript citation or borne out by the record on appeal. While, as the defendant notes, an appellate court may not uphold a verdict “on a basis not in the minds of the contending parties, the judge, or the jury,” Commonwealth v. Longo, 23 Mass.App.Ct. 518, 527 (1987), S.C., 402 Mass. 482 (1988), we address the Commonwealth's new theory because the judge defined “constructive force” in his standard jury charge on rape.

“In a rape case, the element of force and against the will of the victim may be established by physical force or constructive force. Constructive force requires proof that the victim was afraid or that she submitted to the defendant because his conduct intimidated her.” Commonwealth v. Vasquez, 462 Mass. 827, 846 (2012) (quotation and citations omitted). Our cases have recognized that the relationship between the parties and the previous conduct of a defendant can present sufficient evidence for a finding of constructive force. In Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 418 (2010), for example, we agreed with the Commonwealth that the events surrounding an incident of alleged rape “must be viewed in light of the history of [the] relationship [between the defendant and the victim] and the defendant's predatory behavior.”

However, Wallace and other constructive force cases typically involve an adult authority figure who subjects an adolescent or preadolescent child to pervasive sexual abuse over a number of years and feature testimony from the victim that submission resulted from fear or intimidation by the defendant. See id. at 418 (defendant raped victim for many years, starting when victim was eleven years old, “many individual factors [were present] that collectively support[ed] the Commonwealth's theory of ‘force’: the defendant's pushing the still-young victim onto the bed and pinning him there, the locking of the door, the pillow over the head, and the defendant's regularly plying [him] with alcohol,” and victim testified that “he feared the consequences of resisting the defendant's sexual advances”); Commonwealth v. Newcomb, 80 Mass.App.Ct. 519, 522–522 (2011) (victim's father began raping her when she was young and her “fear of the defendant ... was never dissipated”);⁹ Commonwealth v. Dumas, 83 Mass.App.Ct. 536, 537, 539 (2013) (sufficient evidence of constructive force where older defendant “prey[ed] upon the vulnerability of a much younger victim and coerce[d] her into submitting to his sexual advances out of fear for her safety should she refuse” and victim testified “she was afraid to resist the defendant's repeated sexual...