Com. v. Coleman

• Decision Date: 13 March 1991
• Docket Number: No. 89-P-1379,89-P-1379
• Citation: 567 N.E.2d 956,30 Mass.App.Ct. 229
• Parties: COMMONWEALTH v. Robert E. COLEMAN (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 956

567 N.E.2d 956

30 Mass.App.Ct. 229

COMMONWEALTH v. Robert E. COLEMAN (and a companion case ¹).

No. 89-P-1379.

Appeals Court of Massachusetts,

Suffolk.

Argued Oct. 5, 1990.

Decided March 13, 1991.

Carlo Obligato, Boston, Committee for Public Counsel Services, for Robert E. Coleman.

Joan Lieberman, Boston, for Nathan Lang.

Brian J. Carney, Asst. Dist. Atty., for Com.

Before KASS, KAPLAN and JACOBS, JJ.

JACOBS, Justice.

After a joint trial in the Superior Court, a jury convicted the defendant Lang on four counts of a four-count indictment and the defendant Coleman on two counts of a four-count indictment, each count charging aggravated rape ² of the victim on February 27, 1987. ³ We address the various grounds on which the defendants appeal, first setting forth the evidence, viewed in the light most favorable to the Commonwealth.

The victim and an acquaintance, called Lucky, visited with the defendants in Lang's apartment on the evening of February 26, 1987. The apartment comprised two rooms, a living room and a bedroom, between which was a door that was open throughout the period here described. Both Lang and Coleman (Lang's uncle) were previously known to the victim. After a short while during which Lucky and Lang conversed and smoked crack cocaine, Lucky left. Thereafter, the victim and the defendants smoked cocaine for about five hours. Lang and the victim then left the apartment by taxi to obtain more cocaine. Upon their return, Lang and the victim smoked cocaine in the bedroom until about three or four A.M., when they again left the apartment by taxi to acquire more cocaine. When they returned, Coleman was awake on a couch in the living room. Lang and the victim again retired to the bedroom and smoked cocaine.

When the victim made ready to leave the apartment, Lang indicated that he did not want her to leave and that he wanted her to "make love to him." She refused and told him she was ready to go. She asked Lang to walk her to the corner. He refused and again stated that he wanted to "make love to her." She said, "no, no, no," and, in order to deter him, told him she was pregnant and would have sex with him after she had had an abortion. When she persisted in her refusal, and while they were in the bedroom, Lang struck the victim in her eye with a closed fist. She then covered her face to prevent being hit again. At that time she was also asking Lang to stop in a voice loud enough to be heard in the living room. At some point after hitting her in the eye, Lang pulled the victim onto the bed. She took her clothes off so that she "wouldn't keep getting hit on." Lang then took off his clothes and forced the victim to engage in vaginal and oral sex with him. Thereafter, while Lang was still in the bedroom, Coleman entered the bedroom, naked. As Coleman approached the bed, the victim told Lang that she "didn't want to do nothing with his uncle." Lang told her "to treat his uncle good." Coleman then had vaginal and oral sex with the victim.

The victim later put her clothes on, except for her shoes, and entered the living room where she engaged in conversation with the defendants until it was light outside. She later left the apartment to use a hallway bathroom. At some point thereafter, Coleman left the apartment for approximately an hour and one-half to two hours. While he was out, he telephoned the apartment and asked the victim if she wanted anything. When he returned with a soda for the victim, he asked her why she was not still in the bed. She said that she "didn't want to do nothing else." At that point, Lang was in the living room and Coleman was on his way to the bedroom. While Coleman was in the bedroom and the victim was in the living room, she heard Coleman calling out her name in a normal voice. Thereafter, Lang slapped her about three times and pulled her from the living room to the bed in the bedroom. Coleman was then in the bed, naked. The victim took off her clothes because she was "scared." Coleman told her "if you're not interested its ok." Coleman then had vaginal and oral sex with her, following which Lang had vaginal and oral sex with her.

The victim testified that at no time did she consent to have sex with either defendant. Aside from being punched in the eye, the victim was hit by Lang "a couple of more times" while in the apartment.

Lang allowed the victim to leave the apartment at about 9:00 A.M. on February 27, 1987. She went to the house of her sister, who called the police. A police officer observed that she had a swollen right eye. The police arranged for the victim to be taken to a hospital by ambulance. Shortly after 11:00 A.M. on February 27, 1987, a nurse saw the victim at the hospital and observed that she was tearful, that her face was swollen, that one eye was particularly swollen, and that she had facial bruises. During the early afternoon of February 27, 1987, a police officer observed that the victim was upset and that her right eye was completely closed and swollen. A photograph depicting the victim's appearance at the time she was observed by the nurse and the police officer was entered in evidence.

After the Commonwealth closed its evidence, which included testimony of fresh complaint, both defendants moved for required findings of not guilty on all charges. Both motions were denied. Neither defendant presented evidence.

1. Denial of motions for required findings of not guilty. Review of the denial of a motion for a required finding of not guilty requires consideration and determination whether the evidence, "in its light most favorable to the Commonwealth ... is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged," notwithstanding the presence of contrary evidence. Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). "Additionally, the evidence and the inferences permitted to be drawn therefrom must be 'of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.' " Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928). "[T]he 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." Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

Under this standard, the denial of Coleman's motion for required findings of not guilty clearly withstands challenge. A jury could conclude beyond a reasonable doubt that Coleman's first sexual encounter ⁴ with the victim was the product of a joint enterprise with Lang. The evidence readily permitted an inference that Coleman overheard the victim resisting Lang's sexual advances and either observed or heard Lang forcing the victim into sex by force and against her will. The evidence also permitted the further inference that he knew that the victim first succumbed to him unwillingly and as a result of the force and implied threats delivered by Lang. See Commonwealth v. Therrien, 383 Mass. 529, 538-539, 420 N.E.2d 897 (1981). A jury could find that the victim's resistance to Lang, coupled with her statement that she did not want to do anything with Coleman, was sufficient to demonstrate to Coleman a lack of consent, Commonwealth v. Sherry, 386 Mass . 682, 688, 437 N.E.2d 224 (1982), which continued through her first sexual encounter with him. Moreover, given what could be found to have been Coleman's knowledge of Lang's first rape of the victim, Coleman's nude approach to the victim shortly after Lang's rape of her, and Lang's telling her "to treat his uncle good," Coleman's sexual intercourse with the victim could be construed as "accomplice liability." Commonwealth v. Cook, 10 Mass.App.Ct. 668, 674, 411 N.E.2d 1326 (1980). Such liability may arise without "prior planning" or an "anticipatory compact" so long as at the critical time the parties "consciously acted together in carrying out the criminal endeavor." Commonwealth v. Fidler, 23 Mass.App.Ct. 506, 513, 503 N.E.2d 1302 (1987). The circumstances permit an inference of "an identity of purpose and a common endeavor," Commonwealth v. Mercado, 24 Mass.App.Ct. 391, 396, 509 N.E.2d 300 (1987), either from the consecutive rapes or from Coleman's raping the victim under the cloak of Lang's force and implied threat. A rational trier of fact could have found beyond a reasonable doubt that Coleman was the perpetrator of at least two rapes as part of a joint venture and that the essential elements of G.L. c. 265, § 22(a ), had been established.

We also conclude that the denial of Lang's motion for required findings of not guilty was not error. ⁵ Ample evidence of Lang's guilt was introduced. A rational jury could have found beyond a reasonable doubt that Lang committed four aggravated rapes with the aggravating factors being either joint enterprise or serious bodily injury or both.

2. Inconsistency of verdicts. Lang argues that, whereas the jury found him guilty of four counts of aggravated rape while finding Coleman guilty of only two similar counts, he was, in effect, convicted of having participated in two joint enterprises in which no one else participated. He claims that two verdicts against him, therefore, are legally impossible. He relies essentially on the seeming logic of the conclusion that one cannot be a joint venturer by oneself. Lang further claims that, since neither the indictment nor the verdict slips permit differentiation of the verdicts, it is impossible to determine which of his convictions are paired with Coleman's convictions and that, therefore, all four of his convictions fail.

We construe this argument as grounded, by analogy, on the principle that "one cannot...