Commonwealth v. Gibson
| Decision Date | 19 January 2022 |
| Docket Number | SJC-13150 |
| Citation | 179 N.E.3d 51 |
| Parties | COMMONWEALTH v. Marc GIBSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Debra Kornbluh, for the defendant.
Kathryn Sherman, Assistant District Attorney, for the Commonwealth.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Wendlandt, & Georges, JJ.
A jury convicted the defendant, Marc Gibson, of two counts of rape and one count of photographing an unsuspecting nude person. The defendant appeals from his convictions, arguing that there was insufficient evidence to support the convictions and that the trial judge impermissibly coerced a juror requesting to be dismissed into reaching a unanimous verdict. We affirm.
Facts. Taking the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). A.M.,1 the victim, traveled to Boston for a business trip. Upon arrival, she and her coworkers checked into a hotel. After attending a business meeting with her coworkers that evening, A.M. went to the hotel restaurant and ordered soup and a cocktail. She ate alone but was later joined by some coworkers, including the defendant -- with whom A.M. had worked briefly once before -- and had a second drink. The group then went to another bar in the hotel, where A.M. ordered a third drink.
After smoking a cigarette with the group, A.M. began to feel dizzy and as if she were going to vomit. She told her coworkers that she was going to her room, and the defendant offered to help her. A.M. and the defendant took an elevator up to A.M.’s room, and A.M. vomited in the bathroom while the defendant held her hair and rubbed her back. A.M. then changed and lay in bed. The defendant left A.M.’s room to use the bathroom in his own room. He returned soon after using one of A.M.’s room keys, which he had picked up before leaving her room.
During this time, the defendant had been sending text messages to another coworker about A.M.’s condition. In doing so, he lied about his whereabouts. He sent a text message to the coworker stating that A.M. was "puking again" and did not want the defendant "to go," but at that time the defendant actually was in his own hotel room rather than with A.M. The coworker asked for A.M.’s room number to check on her. The defendant told him and let the coworker into A.M.’s room. The coworker found A.M. sleeping in bed, and he tried waking her up by snapping his fingers
in front of her face. He asked if she were all right, and she opened her eyes and responded affirmatively. The coworker and the defendant then left the room together to smoke a cigarette.
When the coworker and the defendant parted ways, the defendant still had A.M.’s room key. He returned to A.M.’s room. A.M. woke up and saw the defendant standing at the foot of the bed. The defendant pulled A.M.’s blanket off her and got on top of her. He put his fingers and his penis into her vagina. A.M. testified that she did not want the defendant to put his fingers into her vagina, that she did not consent to his doing so, and that his doing so made her scared.
At one point, A.M. tried to move away by turning over and moving her legs. The defendant stopped for a few seconds, then tried again to put his fingers inside her vagina. He also repositioned A.M. She was unable to "do anything physically" when the defendant put his penis into her vagina because he was on top of her at that time and considerably bigger and heavier than she was. A.M. did not tell the defendant to stop because she felt weak, incoherent, and dizzy, and hardly knew what was going on. The defendant continued trying to have sex with A.M. even after losing his erection. The defendant's continued intercourse physically "hurt" A.M. "really bad."
During this incident, the defendant took sixteen explicit photographs of A.M. A.M. testified that she did not know about or consent to the photographs being taken. Some photographs depict A.M. with her eyes closed and face turned away from the camera. None of the photographs shows A.M.’s hands or body engaged with the defendant.
A.M. went to a hospital and agreed to an examination by a sexual assault nurse examiner. A toxicology report estimated that A.M.’s blood alcohol concentration at midnight, around the time of the alleged rape, was between .08 and .20 percent. An expert testified that individuals with blood alcohol concentrations in this range may experience a negative impact on memory and decision-making, as well as a negative impact on the ability to move their bodies.
After a jury trial, the defendant was convicted of penile and digital rape under G. L. c. 265, § 22, and photographing an unsuspecting nude or partially nude person under G. L. c. 272, § 105.2 The defendant appealed, and we transferred the case to this court on our own motion.
Discussion. 1. Sufficiency of the evidence. The defendant argues that there was insufficient evidence to support his convictions of rape and photographing an unsuspecting nude person. Based on these arguments, the defendant moved unsuccessfully for a required finding of not guilty at the close of the Commonwealth's case and at the close of all the evidence. We conclude that there was sufficient evidence to support the defendant's convictions.
a. Standard of review. We affirm the denial of a motion for a required finding of not guilty if the Commonwealth's evidence, "together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth," is sufficient to persuade a rational jury of the defendant's guilt beyond a reasonable doubt. Commonwealth v. Copeland, 481 Mass. 255, 259, 114 N.E.3d 569 (2019). See Latimore, 378 Mass. at 676-677, 393 N.E.2d 370.
b. Rape. To prove the defendant guilty of rape, the Commonwealth had to show that the defendant compelled the victim to submit to sexual intercourse by force or threat of force and against the victim's will. G. L. c. 265, § 22 (b ). Commonwealth v. Sherman, 481 Mass. 464, 471, 116 N.E.3d 597 (2019). The defendant argues that the Commonwealth provided insufficient evidence of force. We disagree.
Force can be actual physical force, nonphysical constructive force, or threat of force. Sherman, 481 Mass. at 471, 116 N.E.3d 597, citing Commonwealth v. Lopez, 433 Mass. 722, 727, 745 N.E.2d 961 (2001). In situations where a victim lacks the capacity to consent, the Commonwealth "has no obligation to prove the use of force by the defendant beyond what is required for the act of penetration." Commonwealth v. Blache, 450 Mass. 583, 594, 880 N.E.2d 736 (2008). Rather, in addition to the act of penetration, the Commonwealth must prove that the defendant knew or reasonably should have known that the victim lacked the capacity to consent. Id. The Commonwealth argued at trial that the defendant used actual and constructive force and that the victim was unable to consent.
The jury could have found that the defendant used actual force when he entered A.M.’s room, uninvited, while she was asleep by using her room key that he had taken without permission, pulled the blanket off of her, removed her clothes without her consent, lay on top of her such that she could not resist, repositioned her body to penetrate her, continued trying to penetrate her after she moved away, and caused her pain by trying to have sex with her after he lost his erection. See Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 191-193, 982 N.E.2d 538 (2013) ().
The jury also could have found that the defendant used sufficient force simply by penetrating A.M. with his fingers and penis because A.M. lacked the capacity to consent due to intoxication.3 See Blache, 450 Mass. at 594, 880 N.E.2d 736. At the time of the sexual intercourse, A.M. had a blood alcohol concentration between .08 and .20 percent.4 After consuming three alcoholic drinks, A.M. returned to her hotel room to vomit, which she did before the defendant reentered her room and had sexual intercourse with her. She remembered only bits and pieces of her sexual encounter with the defendant because, at the time, she felt incoherent and hardly knew what was going on. See Commonwealth v. Moran, 439 Mass. 482, 490-491, 789 N.E.2d 121 (2003) (). The photographs taken by the defendant, many of which show A.M. with her eyes closed, reasonably could lead the jury to conclude, when considered along with the rest of the evidence, that A.M. was unconscious during parts of the sexual encounter. See Commonwealth v. LeBlanc, 456 Mass. 135, 139, 921 N.E.2d 933 (2010) ().
In addition, the jury could have found that the defendant knew or reasonably should have known that A.M. could not consent. The defendant helped A.M. to her room as she was very intoxicated, watched her vomit, sent text messages to A.M.’s coworker about A.M.’s level of intoxication and illness while lying about his whereabouts at the time, checked on her with a coworker, returned to the room alone and gained entrance using her key that he had retained without her permission, and ultimately photographed her while she appeared unconscious.
For all these reasons, there was sufficient evidence that the defendant used force against A.M.5
c. Nude photographs. The defendant also argues that the Commonwealth provided insufficient evidence to prove that he photographed an unsuspecting nude person in violation of G. L. c. 272, § 105 (b ). We conclude otherwise.
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