Com. v. Walker

• Decision Date: 12 February 2007
• Docket Number: No. 05-P-1045.,05-P-1045.
• Citation: 861 N.E.2d 457,68 Mass. App. Ct. 194
• Parties: COMMONWEALTH v. Benjamin WALKER (and thirteen companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

861 N.E.2d 457

68 Mass. App. Ct. 194

COMMONWEALTH v. Benjamin WALKER (and thirteen companion cases¹).

No. 05-P-1045.

Appeals Court of Massachusetts, Middlesex.

Argued June 14, 2006.

Decided February 12, 2007.

Kevin J. Mahoney, Cambridge, for Ronnie Phillips.

Stephen Hrones, Boston, for Benjamin Walker.

Marguerite T. Grant, Assistant District Attorney (K. Nathaniel Yeager, Assistant District Attorney, with her) for the Commonwealth.

Edward P. Ryan, Jr., Fitchburg, for Garrett Broberg.

Present: LAURENCE, GELINAS, & COHEN, JJ.

GELINAS, J.

While traveling in the Boston area in April, 2001, on a field trip, and accompanied by five chaperones, the defendants, all then students at the Philipsburg-Osceola High School in Pennsylvania, engaged in a variety of activities with sexual overtones, primarily directed against one of their fellow students. As the specific facts do not bear directly on the issues raised in this appeal, we need not recite the sordid details of the defendants' actions, except to note that they were alleged to have occurred periodically over the two-day trip and allegedly involved attempted forced oral sex and other indignities visited primarily on one victim. Some detail will appear in our discussion of the issues.

After trial, a jury found the defendant Ronnie Phillips guilty on one indictment charging assault and battery; the defendant Benjamin Walker guilty on four indictments charging indecent assault and battery on a person over fourteen, four indictments charging open and gross lewdness and lascivious behavior, three indictments charging assault and battery, and one indictment charging assault with intent to rape; and the defendant Garrett Broberg guilty on one indictment charging assault with intent to rape; the remaining convictions of defendant Broberg are not before us on appeal because he withdrew his appeal from the judgements. The jury acquitted each defendant of other charges arising out of the incidents, and the judge allowed motions for required findings of not guilty on yet others.

At sentencing, the trial judge purported to exercise his discretion pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), and its statutory predicate, G.L. c. 278, § 11, and allowed Walker's and Broberg's motions for required findings of not guilty with respect to the verdicts on the indictments charging each of them with assault with intent to rape. The Commonwealth appeals from the orders allowing Walker's and Broberg's motions pursuant to rule 25(b)(2).

Defendants Walker and Phillips also appeal, claiming that the trial judge erred in giving a partial instruction with respect to reasonable doubt during the trial. The partial instruction was given both orally and in writing, and the jury were encouraged to refer to the written instruction both during the trial and while in deliberation.

1. The Commonwealth's appeals. On appeal, the Commonwealth argues that the judge abused his discretion and committed error of law in ruling Walker not guilty of assault with intent to rape, in a purported exercise of his discretion under rule 25(b)(2). In his written memorandum the judge acknowledged that a "rational trier of fact could find beyond a reasonable doubt that Benjamin Walker possessed the specific intent to insert his penis into the mouth of [the victim] as part of the bed tackling incident"; he concluded, however, that the evidence of specific intent was of "slim" or marginal sufficiency within the meaning of Commonwealth v. Ghee, 414 Mass. 313, 322, 607 N.E.2d 1005 (1993). He acknowledged further that as a more recent pronouncement upon the purpose and scope of rule 25(b)(2), the standard set out in Commonwealth v. Rolon, 438 Mass 808, 820, 784 N.E.2d 1092 (2003), for reduction of verdicts to lesser findings under rule 25(b)(2) was inconsistent with the standard for directed verdicts against the prosecution.² The judge concluded that "[i]n these circumstances and under the standard of Rolon, I would reduce the finding of assault with intent to rape to the lesser included finding of indecent assault and battery upon a person 14 or over." He then concluded that as the jury had found guilt "upon the same conduct," the "[r]eduction . . . to the lesser included offense would result in a redundant conviction" consequently, he entered a finding of not guilty on the assault with intent to rape.

Rule 25(b)(2) and its statutory predicate, G.L. c. 278, § 11,³ offer a defendant, on motion after jury verdict, three options for potential relief: a new trial, a verdict of not guilty, or the entry of a verdict of any lesser included offense. The first and third of these are addressed, in some measure, to the sound discretion of the judge and permit the judge to consider, among other factors, the weight and sufficiency of the evidence. See Commonwealth v. Torres, 24 Mass.App.Ct. 317, 322, 508 N.E.2d 877 (1987). As noted, however, in order that there be a reduction of verdict under the third option, the reduced verdict must be a lesser included offense of the offense involved. Indecent assault and battery is not a lesser included offense of assault with intent to rape. See Commonwealth v. Oliveira, 53 Mass.App.Ct. 480, 482, 760 N.E.2d 308 (2002) (indecent assault and battery is not a lesser included offense of assault with intent to rape, "intent to rape is not an element of indecent assault and battery, and a battery is not an element of assault with intent to rape"). Because the crime to which the judge reduced the conviction was not a lesser included offense of assault with intent to rape, the discretion that the judge purported to exercise did not come within the options available to him under rule 25(b)(2), and constituted an error of law. Contrast Commonwealth v. Woodward, 427 Mass. 659, 667 n. 12, 694 N.E.2d 1277 (1998) (providing summary of cases where trial judges reduced verdicts to lesser included offenses under rule 25[b][2]).

To the extent that the judge's action purported to dismiss the charge of assault with intent to rape by the entry of a verdict of not guilty, the action was also an abuse of discretion and an error of law. In order to enter a verdict of not guilty, our courts have consistently held that the standard is that for a required finding of not guilty as set out in Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), and its progeny. See Commonwealth v. Berry, 68 Mass.App.Ct. 78, 81, 860 N.E.2d 28 (2007). "That standard is whether there was enough evidence, when taken in the light most favorable to the Commonwealth, that `could have satisfied a rational trier of fact of each [essential element of the offense] beyond a reasonable doubt.' In using that standard the judge cannot weigh the evidence or assess the credibility of the witnesses. To hold otherwise would allow a trial judge to invade the province of the jury as the sole finder of fact in a jury trial." Commonwealth v. Torres, supra at 324, 508 N.E.2d 877, quoting from Commonwealth v. Latimore, supra at 677-678, 393 N.E.2d 370. Accord Commonwealth v. Doucette, 408 Mass. 454, 455-456, 559 N.E.2d 1225 (1990); Commonwealth v. Elliffe, 47 Mass.App.Ct. 580, 583-584, 714 N.E.2d 835 (1999); Commonwealth v. Shabo, 47 Mass.App.Ct. 923, 924, 715 N.E.2d 475 (1999). See also Commonwealth v. Coleman, 434 Mass. 165, 169-170, 747 N.E.2d 666 (2001). The entry of a verdict of acquittal after the jury found Walker guilty of assault with intent to rape must be reversed, and the conviction reinstated.

We next address the judge's entry of an acquittal in favor of defendant Broberg after the jury's verdict of guilty of assault with intent to rape on a theory of joint venture. The judge articulated two different rationales. First, the judge stated that under the standard set out in Commonwealth v. Latimore, supra, "a rational trier of fact could not find beyond a reasonable doubt a shared intent on the part of Broberg that Walker insert his penis into [the victim's] mouth as part of the bed tackling incident." On our review of the record, we conclude that this determination was in error.

In reviewing a motion for required finding of not guilty, we consider the evidence, together with permissible inferences from that evidence, in the light most favorable to the Commonwealth, to "determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cordle, 412 Mass. 172, 175, 587 N.E.2d 1372 (1992). See Commonwealth v. Latimore, 378 Mass. at 676-677, 393 N.E.2d 370; Commonwealth v. Lodge, 431 Mass. 461, 465, 727 N.E.2d 1194 (2000); Commonwealth v. Grandison, 433 Mass. 135, 140-141, 741 N.E.2d 25 (2001). In evaluating the sufficiency of the evidence, we resolve all issues of credibility in favor of the Commonwealth. Commonwealth v. James, 424 Mass. 770, 785, 678 N.E.2d 1170 (1997). Commonwealth v. Platt, 440 Mass. 396, 400-401, 798 N.E.2d 1005 (2003). "The inferences cannot be too remote but `allowable inferences need not be necessary or inescapable.'" Commonwealth v. Walker, 401 Mass. 338, 340, 516 N.E.2d 1143 (1987), quoting from Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19 (1985). The standard may be met on inconsistent evidence. Commonwealth v. Peters, 429 Mass. 22, 24, 705 N.E.2d 1118 (1999). Commonwealth v. Plouffe, 52 Mass.App.Ct. 543, 545, 755 N.E.2d 294 (2001).

Our review of the evidence shows that there was sufficient evidence, when considered under this standard, to show that Walker and Broberg shared the intent to orally rape the victim. There was evidence that on Saturday night, Walker said in front of Broberg that the victim would give a "blow job." The jury heard evidence from which they might conclude that on Sunday morning, Walker and Broberg agreed that the victim would "suck a cock" that night. Over a thirty-six hour period both Walker and Broberg sexually assaulted the sleeping victim, slapping their penises...