Com. v. Sumner

• Decision Date: 05 July 1984
• Citation: 465 N.E.2d 1213,18 Mass.App.Ct. 349
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Francis P. SUMNER.

Page 1213

465 N.E.2d 1213

18 Mass.App.Ct. 349

COMMONWEALTH v. Francis P. SUMNER.

Appeals Court of Massachusetts Worcester.

Argued April 5, 1984.

Decided July 5, 1984.

Richard J. Shea, Wollaston, for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, CUTTER and BROWN, JJ.

CUTTER, Judge.

Sumner appeals from convictions, after a trial before a Superior Court judge and a jury, upon indictments for aggravated rape (G.L. c. 265, § 22[a ], as amended ¹) and kidnapping (G.L. c. 265, § 26, as amended), each alleged to have taken place on October 20, 1981. The trial began on June 18, 1982, and ended with verdicts of guilty on July 9, 1982. Sumner was given concurrent sentences to M.C.I., Walpole, of fifteen to eighteen years on the rape charge and of nine to ten years on the kidnapping charge.

Only one issue calls for extended discussion, viz., whether the judge should have granted Sumner's motions for required findings of not guilty. Other insubstantial points argued are discussed in Appendix 2 of this opinion.

We consider whether the Commonwealth had presented evidence (taking into account all permissible inferences) "that could have satisfied a rational trier of fact of each ... [essential] element" of each offense charged beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). See also Commonwealth v. Shaheen, 15 Mass.App.Ct. 302, 306, 445 N.E.2d 619 (1983). As to this, the victim's testimony is summarized in paragraphs (a) to (e), below.

(a) Prior to October 20, 1981, the victim, then twenty-one years old, had a friend's Cadillac automobile painted at Sumner's auto body shop. On the 20th, she returned to the shop to have some work completed. While there, she talked with Sumner (obviously older than the victim, for his seventeen-year old son was a defense witness). In the course of this conversation she arranged to inspect with Sumner an apartment at 41 Rockland Road, Auburn, which Sumner was trying to let, with the thought that her "girl friend" might be interested in it. That afternoon she went, in the Cadillac, to the apartment, where Sumner joined her in his automobile. They looked at the apartment. As they were leaving, Sumner asked her if she "would clean it for him and he would pay" her. She agreed to do this and to pick up the keys at Sumner's place of business about 7 P.M.

(b) She returned to her parent's house about 4:45 P.M. She told her mother and sister her plans, and arrived at Sumner's body shop in the Cadillac about 7:20 P.M. Sumner told her to meet him at the apartment and to "park in back where the driveway is." Sumner met her in his own automobile and let her into the apartment. He then asked her what she needed for the cleaning work. She told him what she required and gave him a dollar to buy some "Kool" cigarettes. She started the cleaning.

(c) Sumner left and returned with the requested items. He again left after she had told him that she "had to be back home for eight-thirty." She cleaned the apartment and dusted for about an hour. Sumner then returned, "said the place looks good and put twenty dollars on the table."

(d) The victim started toward the door and Sumner "got in front of ... [her] and locked three locks on the door." Sumner "tried to start kissing" her and she "pushed him away." After some struggling, Sumner said, "Just give it to me and I won't hurt you." Then he said, "Give it to me or I'll kill you." She was crying but was unable to push him away. Sumner started choking her and she "screamed hoping somebody upstairs would hear." Sumner choked her again, so that she was "gasping for air". He then took off her clothes and underclothes, grabbed her arm, and pulled her into the bedroom. There he turned a stereo on medium volume, took off his clothes, held her down with his knees, and for "about an hour and a half" engaged repeatedly in various sexual activities including instances of penetration, while she was "too scared to" scream.

(e) Eventually, Sumner told her she could go. She went out, entered the Cadillac and locked the doors. She "had to wait because he had told ... [her] before ... [she] left that his car was blocking ... [hers] in the driveway." It was then 12:05 A.M. on October 21 by the clock in the Cadillac. When Sumner moved his automobile, she went to her "boy friend's house" and, after some conversation with his mother, she called the Worcester police, who took her "to the hospital about five of one." ²

The judge concluded properly that a required finding of not guilty could not be ordered in view of the foregoing testimony of the victim, together with (a) testimony of her mother and of persons, including a doctor, who saw her at the hospital and observed her bruises, the scrapes on her throat and back, and her emotionally disturbed condition, and (b) photographs of her person, taken on the night of October 20-21. He could also regard as sufficient to establish beyond a reasonable doubt to a rational trier of fact the charge of aggravated rape based on "serious bodily injury." See the discussion in Commonwealth v. Sherry, 386 Mass. 682, 687-688, 694-695, 437 N.E.2d 224 (1982). See also Commonwealth v. Whitehead, 379 Mass. 640, 650 n. 8, 400 N.E.2d 821 (1980).

A rational trier of fact could also conclude beyond a reasonable doubt that Sumner was guilty of the crime of kidnapping (see G.L. c. 265, § 26, as amended, quoted in Appendix 1) because of Sumner's conduct in locking the victim into the Rockland Road apartment for two hours or more, after placing his own automobile, for the first time (known to the victim) of the three occasions when he had been on the premises with the victim that day, so that she could not leave in the Cadillac. Sumner, on the victim's testimony, could have been convicted of kidnapping, even if the jury had not believed her testimony on the rape indictment. If they did believe her rape testimony, the jury reasonably could have found (although the issue is, perhaps, close) that, in duration, planning, and execution, her confinement exceeded restraint which was merely incidental to the rape. See Commonwealth v. Reilly, 5 Mass.App.Ct. 435, 438, 363 N.E.2d 1126 (1977); Commonwealth v. Talbot, 5 Mass.App.Ct. 857, 366 N.E.2d 246 (1977); Commonwealth v. Mack, 5 Mass.App.Ct. 886, 887, 368 N.E.2d 1227 (1977); Commonwealth v. LaPierre, 10 Mass.App.Ct. 641, 645 n. 3, 411 N.E.2d 1314 (1980); Commonwealth v. Vasquez, 11 Mass.App.Ct. 261, 267-268, 415 N.E.2d 858 (1981). Compare People v. Cassidy, 40 N.Y.2d 763, 767-768, 390 N.Y.S.2d 45, 358 N.E.2d 870 (1976). ³

Sumner contends that the evidence offered to prove kidnapping was so closely related to that offered to prove rape as to make improper separate convictions on the two indictments. As indicated above, "we think there was sufficient evidence concerning ... [Sumner's] confinement of the victim ... to warrant the jury in finding that a kidnapping had occurred separate ... from the ... rape." See Commonwealth v. Vasquez, 11 Mass.App.Ct. at 267-268, 415 N.E.2d 858. Even if the charges might prove to be in some respects duplicitous under principles discussed in Kuklis v. Commonwealth, 361 Mass. 302, 306-309, 280 N.E.2d 155 (1972), and in Commonwealth v. Crocker, 384 Mass. 353, 357, 424 N.E.2d 524 (1981), the judge could not have ordered required findings of not guilty. The Commonwealth was not obliged to elect in advance the charge on which it intended to proceed. Commonwealth v. Jones, 382 Mass. 387, 395, n. 10, 416 N.E.2d 502 (1981). As was recognized in the Jones case at 394-395, 416 N.E.2d 502, in the event of indictments for two offenses which must be held duplicitous, the "proper approach ... [would be] to submit ... [both] charges to the jury and, if guilty verdicts were returned on more than one, to dismiss the less serious charge." See Commonwealth v. Overton, 12 Mass.App.Ct. 996, 997, 429 N.E.2d 70 (1981); Commonwealth v. Shuman, 17 Mass.App.Ct. 441, 449-452, 459 N.E.2d 102 (1984). See also the discussion in Commonwealth v. St. Pierre, 377 Mass. 650, 661-663, 387 N.E.2d 1135 (1979). Thus, even if the kidnapping charge were to be treated as merged into the rape charge, only one of Sumner's convictions and concurrent sentences would need to be set aside. ⁴ The concurrent sentences were well within the limits permitted for violations of G.L. c. 265, § 22(b ), unaggravated rape, see Commonwealth v. Sherry, 386 Mass. at 694-695, 437 N.E.2d 224, which is expressly made by the 1980 form of § 22 "a lesser included offense to ... [the offense] described" in § 22(a ). The conviction of rape, § 22(b ), could thus stand even if the evidence were not sufficient to show either "serious bodily injury" or a kidnapping under § 26. We hold that the evidence was sufficient to show both "serious bodily injury" and a kidnapping. The judge properly denied motions for required findings of not guilty.

The numerous issues discussed in Appendix 2, considered either separately or in the aggregate, do not warrant reversal. The judgments are affirmed.

So ordered.

APPENDIX 1

CERTAIN STATUTORY PROVISIONS RELATING TO KIDNAPPING AND RAPE

General Laws c. 265, § 22, as appearing in St.1980, c. 459, § 6, reads in part (emphasis supplied): "(a ) Whoever has 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 ... such sexual intercourse ... results in ... serious bodily injury ... or is committed during the commission or attempted commission of an offense defined in section ... twenty-six of this chapter, ... shall be punished by imprisonment in the state prison for life or for any term of years.

[Second par. of subsection (a ) omitted.]

"(b ) Whoever has 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...