Com. v. Grant
| Decision Date | 12 April 1984 |
| Parties | COMMONWEALTH v. Jeffrey V. GRANT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jane Larmon White, Boston, for defendant.
Judy G. Zeprun, Asst. Dist. Atty. (Kevin F. Driscoll, Asst. Dist. Atty., with her), for the Commonwealth.
Before HENNESSEY, C.J., and LIACOS, ABRAMS and O'CONNOR, JJ. O'CONNOR, Justice.
A jury found the defendant guilty of aggravated rape (G.L. c. 265, § 22). The defendant moved for a postverdict inquiry of the jurors and for a new trial. The trial judge allowed the motion for a postverdict inquiry and, after interviewing four jurors, denied the motion for a new trial. The defendant was sentenced to serve no more than seven years and no less than four years at the Massachusetts Correctional Institution at Walpole.
The defendant appeals from his conviction and from the denial of his motion for a new trial. He argues (1) that the judge erred in denying his motion for a required finding of not guilty because the evidence was insufficient to warrant a finding that the defendant specifically intended to have nonconsensual sexual intercourse; (2) that the judge erred in failing to instruct the jury that an essential element of rape is that the defendant specifically intended to have nonconsensual intercourse; and (3) that the judge erred in denying his motion for a new trial because one of the jurors was not impartial. 1 We granted the defendant's application for direct appellate review. We affirm the conviction and the denial of the defendant's motion for a new trial.
The following evidence was introduced at trial. On September 14, 1981, at approximately 4:30 P.M., the defendant and a male companion approached the victim on a beach in Winthrop where the victim had stopped to take a break from her job of selling vacuum cleaners. One of the men offered her an opportunity to earn $100 to $200 dollars a day for photographic modelling for perfume and cologne advertisements. She agreed to meet them at the beach later, about 6 P.M.
At 6 P.M., the victim returned to the beach and waited in her car for the defendant and his companion. Shortly thereafter they arrived at the beach in the defendant's car and parked behind the victim's car. The two men got out of their car, walked over to the passenger side of the victim's car, and proceeded to get into the front seat. She told them to get out. The defendant got out and got back into his car, but the defendant's companion refused to leave. The defendant's companion then instructed the victim to follow the defendant's car. She did so because she thought they were going to a photography studio.
After a time the two cars were separated, but they met again approximately fifteen minutes later at Constitution Park. At Constitution Park the defendant parked his car, transferred some photography equipment from his car to the victim's car, and joined his companion and the victim in the front seat of the victim's car. They drove off again, this time with the defendant driving. While in the car the two men frequently told the victim that this was "part of the course" or "par for the course" or "part of the cost." The victim did not know what that phrase meant, but she thought it referred to the photography business and to the possibility of her becoming a model. At that time the victim was afraid.
They eventually arrived at a vacant apartment building. The two men got out of the car, walked over to the building, and began to break down its door. The victim testified that she had an opportunity to drive away while the men were breaking down the door, but that she did not do so because she was too "scared." All three entered the building and went down to its basement. There, the victim was directed to a couch and told to kneel on all fours. The defendant's companion removed the victim's underpants. She then was ordered to engage in oral intercourse with the defendant. The victim testified that the defendant put one hand on the back of her head and pushed her mouth onto his penis. She tried to push him back. While this was occurring, the defendant's companion entered her anally. The victim screamed. The defendant's companion told her to shut up and began slapping her on the face and ears. The defendant's companion then left the basement. At this point the victim tried to leave, but the defendant grabbed her and pushed her back onto the couch. The defendant told the victim that he would speak to his companion. The defendant left for a moment and returned with his companion who began to hit the victim again about the nose and face. The victim's nose began to bleed. The defendant's companion then left the building.
The victim ran out of the building to the middle of the street and tried to get help from passing motorists. No one stopped to help her. Finally, she went back to her car. Before she could leave, however, the defendant walked over to her, took her keys, and said, "You're in no condition to drive." He then drove her back to the beach and then to Constitution Park where he asked her to have oral sex. She refused, and no sexual activity took place. The defendant got into his car and departed.
The victim drove herself to a gas station where she received help. She was taken by ambulance to the Chelsea Health Care Center of the Massachusetts General Hospital and was treated for a perforated eardrum, a bruise over her eye, a bruise on her right arm, and a cut in her right nostril.
The next day, the police apprehended the defendant, who admitted to having sexual intercourse with the victim, but denied raping her. He also told the police that he had met his companion for the first time the day of the incident and that his companion called himself "Robert McCarthy." The police have not apprehended the defendant's companion.
At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty. That motion was denied. In reviewing a denial of a motion for a required finding of not guilty, we consider whether the evidence, in the light most favorable to the Commonwealth, "is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and, whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt." Commonwealth v. Casale, 381 Mass. 167, 168, 408 N.E.2d 841 (1980). See also Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). The jury could have found that the victim was initially put in fear by the refusal of the defendant's companion to get out of the victim's motor vehicle, that the victim continued to be afraid, that the victim was duped into going to an abandoned building where she would be vulnerable to attack, that inside the building, alone with the two men, she was ordered to kneel and to engage in oral intercourse, that she physically resisted and her resistance was met with physical force, that anal intercourse with one of the men and oral intercourse with the other occurred simultaneously, and that immediately afterwards she was physically beaten. A conclusion that the defendant compelled the victim to engage in sexual intercourse was warranted. See Commonwealth v. Sherry, 386 Mass. 682, 687-688, 437 N.E.2d 224 (1982).
The defendant does not appear to argue that the evidence was insufficient to permit a finding of nonconsensual intercourse. Rather, the defendant argues that no rational trier of fact could have found, beyond a reasonable doubt, that the defendant, personally, or as a joint venturer, had sexual intercourse with the intent that it be by force or threat of bodily injury and against the victim's will. The argument is predicated on the assertion that in addition to intercourse and lack of consent, another essential element of the crime of rape is a specific intent that the intercourse be without consent. However, that is not the law.
General Laws c. 265, § 22 (a ), as appearing in St. 1980, c. 459, § 6, provides in material part: "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 and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of [certain felonies] ... shall be punished by imprisonment in the state prison for life or for any term of years." General Laws c. 265, § 22(b ), provides in material part that: "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 ...." The elements necessary for rape do not require that the defendant intend the intercourse be without consent. General Laws c. 265, § 22. No specific intent is required. "The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury." Commonwealth v. Sherry, supra at 687, 437 N.E.2d 224. Since the evidence was sufficient to show intercourse without consent, the motion for a required finding of not guilty was properly denied.
In addition to asserting that the judge erroneously denied his motion for a required finding of not guilty, the defendant also contends that the...
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