Commonwealth v. Dunson
| Decision Date | 17 August 2017 |
| Docket Number | 16-P-326 |
| Citation | 87 N.E.3d 1201 (Table),92 Mass.App.Ct. 1103 |
| Parties | COMMONWEALTH v. John T. DUNSON. |
| Court | Appeals Court of Massachusetts |
After a jury-waived trial in the Superior Court, the defendant was convicted of one count of rape.2 He appeals, arguing that the judge erred in denying his motions for a required finding of not guilty because there was insufficient evidence to prove that he used force to accomplish the sexual assault, or that the victim was so intoxicated that she was incapable of consenting.3 We affirm.
Commonwealth v. McWilliams, 473 Mass. 606, 610 (2016).
The judge heard the following evidence. On December 13, 2013, the victim was living at a homeless shelter in Springfield, and was struggling with addiction, particularly to dextromethorphan (DXM) and opiates. On this morning, she had taken a quantity of DXM (contained in over-the-counter cold medicine pills) before she went with the defendant, and another man, to a nearby coffee shop;4 she knew the defendant from the homeless shelter as "Cowboy." After leaving the coffee shop, she, the defendant, and the other man went into the back stairwell of a nearby closed restaurant and smoked marijuana; combined with the pills she had taken earlier it all "started to hit [her] and [she] felt like [she] was floating." She then took a "white pill" given to her by a woman she knew from the shelter whom she ran into while she was walking up the street; at that point she was intending to go back to the shelter because she had nowhere else to go and she "was really messed up."
After that, the victim had significant gaps in her memory; she had images of "coming to and passing out again." She recalled the defendant forcing her to her knees outside on the cold ground; he then forced her to perform oral sex on him. In particular, she remembered pressure and the defendant's hands on her neck. She testified that she "absolutely" did not want to do that with the defendant, nor did she have any previous conversation with him about performing oral sex.5 When she came to, her pants were down and she was being sodomized, either by the defendant's penis or "an object that was inserted" in her anus. She was uncertain which; however, she was aware of pain in her anus.6 The victim also testified that, although she was not aware of having vaginal sex with the defendant, the next day her vagina was "extremely painful" and she "could barely walk."7 Her next memory was an emergency medical technician who "just appeared." At that point, she was hallucinating, thinking she was five years old.
The Commonwealth had the burden of "prov[ing] beyond a reasonable doubt that the defendant had sexual intercourse by force or threat of force and against the will of the victim," that is, without the victim's consent. Commonwealth v. Moniz, 87 Mass. App. Ct. 532, 535 (2015). See G. L. c. 265, § 22(b ). In proving the victim's inability to consent, the Commonwealth is required to show "that because of the consumption of drugs or alcohol or for some other reason ..., the [victim] was so impaired as to be incapable of consenting to intercourse." Commonwealth v. Blache, 450 Mass. 583, 591-592 (2008). In such a case, the "Commonwealth has no obligation to prove the use of force by the defendant beyond what is required for the act of penetration." Id. at 594, citing Commonwealth v. Lopez, 433 Mass. 722, 728-729 (2001). See Commonwealth v. Burke, 105 Mass. 376, 380-381 (1870). The Commonwealth must then prove that "the defendant knew or reasonably should have known that the [victim]'s condition rendered her incapable of consenting to the sexual act." Blache, supra.
The defendant does not contest that he had sexual intercourse with the victim and that she performed oral sex on him, but asserts the encounter was consensual. He provided contradictory testimony about the events of December 13, stating that, immediately prior to the sexual encounter, the victim expressed her desire to have sex with him and that, while they were having sex together, she did not at any time verbally express that she did not want to be engaging in the sex act. He denied having anal sex with the victim as he does not "believe in it." The defendant also testified that, after both he and the victim got redressed, the victim started talking about having a relationship with him. He immediately rejected the idea; he stated that she then began screaming at him and got "irate" because he did not want her to move to Florida with him, where he was going to work and move back in to live with his wife and son.
According to the defendant, he then got a call from his "weed man" Rick, who also lived at the shelter, and left the victim to go back to the shelter to get the marijuana that Rick still owed him; when he and Rick returned about thirty minutes later, they found the victim fully dressed and lying face down on the ground with her head in the bushes. She was mumbling incoherently and chewing on her hand; according to the defendant, his friend Rick then telephoned for an ambulance.8
The defendant insisted that at the time of the sex act the victim was completely coherent and did not appear to be high "other than smoking marijuana," and that she was "screaming and cussing" when he left to go back to the shelter. He insisted that the victim initiated the sexual encounter so "why would she not consent if she is the one that started it?" He argues that the evidence presented at trial, including the medical records, supported his version of events, and that there was no evidence demonstrating that the victim engaged in these sexual acts against her will. Although the defendant points to countervailing evidence, the weight of the evidence was for the fact finder to determine. See Commonwealth v. Lebron, 66 Mass. App. Ct. 907, 910 (2006) ().
As to the victim's ability to consent, based upon the 911 call, the jurors could...
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