Commonwealth v. J.G.

• Decision Date: 22 February 2022
• Docket Number: 20-P-1074
• Citation: 182 N.E.3d 1020,100 Mass.App.Ct. 731
• Parties: COMMONWEALTH v. J.G.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 731

182 N.E.3d 1020

COMMONWEALTH

v.J.G.

No. 20-P-1074

Appeals Court of Massachusetts, Franklin-Hampshire.

Argued November 1, 2021.

Decided February 22, 2022.

Marissa Elkins, Amherst, for J.G.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Kinder, & Sacks, JJ.

SACKS, J.

At issue here is whether a Juvenile Court judge erred in denying a motion to dismiss a youthful offender indictment under G. L. c. 119, § 54, charging the sixteen year old juvenile with the rape of an eighteen year old woman. G. L. c. 265, § 22 (b ). The juvenile argued that the grand jury lacked probable cause to find that the particular facts of his offense "involve[d] the infliction or threat of serious bodily harm," as the youthful offender statute ( § 54 ) requires. After his motion to dismiss was denied, the juvenile tendered a conditional plea and was found to be a youthful offender, subject to his right to appeal the denial of the motion. Having undertaken a "fact-intensive" inquiry of the serious bodily harm issue, as required by N.M. v. Commonwealth, 478 Mass. 89, 95, 82 N.E.3d 1036 (2017), we conclude that the motion was correctly denied.

Background. 1. The evidence. The grand jury heard evidence, including a recording of a sexual assault intervention network (SAIN) interview with Mary Jones (a pseudonym), that one night in January of 2017, Jones was at the home of the juvenile, who was her cousin, and was drinking with him, his brother, and a male friend. Jones became highly intoxicated and blacked out. She had no memory of going to bed that evening, but she awoke in the juvenile's bed. She was on her side facing the wall, and the juvenile lay between her and the wall, with his face close to hers. The juvenile asked repeatedly to have sex with her, and she refused. Her memory of the events was spotty due to her intoxication, but she recalled waking to find the juvenile touching her breast with his hand. She pushed his hand away and said, "No," to which he responded, "Why not?" He then put his mouth on her breast. She again told him to stop, and then turned onto her side, with her back to him, and fell back into unconsciousness.

She next recalled regaining consciousness on her back with the juvenile on top of her. She was still intoxicated and, although she could not feel the juvenile inside her, he was breathing heavily and said, "you're so tight." She then passed out again.

The next morning, Jones awoke to find that she was no longer wearing underwear, as she had been the night before. She asked the juvenile if he had put her breast in his mouth and had "put himself inside her," and he admitted that he had done both. Jones experienced pain in her vaginal and anal areas, "soreness and discomfort"; when she was walking it was a "dull, throbbing pain," but "every time [she] sat down it really, really hurt." That morning she spoke to the juvenile's brother and told him that the juvenile had raped her.

Jones reported the incident to law enforcement in approximately August of 2018. During her SAIN interview, she did not report receiving any medical attention or suffering any lasting injury. The grand jury heard testimony from a police officer that, by the time Jones reported the incident, it was essentially too late for a medical examination to be useful.

Officers interviewed the juvenile's brother, who corroborated Jones's report that the group had been drinking. He stated that the next morning, Jones was sad and upset and told him that the juvenile "might have, like, raped her." The brother stated that the juvenile himself had said that morning that he felt "disgusting." The juvenile, for his part, told officers that the group had been drinking and that Jones had spent the night in his bed. He could not remember what had happened but stated that "he wouldn't do anything like that."

2. Complaint and indictments. Initially, the Juvenile Court issued a complaint charging the juvenile with delinquency by reason of two counts of rape (one of them anal), G. L. c. 265, § 22 (b ), and one count of indecent assault and battery on a person fourteen years of age or older (IAB), G. L. c. 265, § 13H. The Commonwealth also presented the case to a grand jury and obtained youthful offender indictments for the same offenses. See Commonwealth v. Mogelinski, 466 Mass. 627, 642-643, 1 N.E.3d 237 (2013) (Commonwealth may, within double jeopardy limits, proceed on both tracks simultaneously).

After the youthful offender case was transferred from the Superior Court to the Juvenile Court, the juvenile moved to dismiss the indictments. He argued, among other things, that the grand jury lacked probable cause to find that the offenses "involve[d] the infliction or threat of serious bodily harm in violation of law," as § 54 required here in order to treat him as a youthful offender. The judge allowed the motion with respect to the anal rape and IAB indictments but denied it with respect to the other rape indictment.¹

The judge then accepted the juvenile's conditional plea to that remaining indictment,² found him to be a youthful offender, and committed him to the custody of the Department of Youth Services (department) until his twenty-first birthday. He was also sentenced to two years of incarceration, which was suspended for three years while he was supervised on probation.

In the meantime, in the delinquency case, the charge relating to anal rape was dismissed,³ and the juvenile tendered pleas of delinquent based on the remaining rape charge and the IAB charge. The judge accepted the plea only on the IAB charge and committed the juvenile to the department's custody until his twentieth birthday. Further delinquency proceedings relating to the remaining rape charge -- the one based on the same facts as the indictment at issue in this appeal -- were continued on the Commonwealth's motion. The delinquency case is not before us.

Discussion. 1. Youthful offender statute. "In order to support a youthful offender indictment, the Commonwealth must present evidence sufficient to support a finding of probable cause as to the following statutory requirements: (1) the juvenile was between fourteen and seventeen years old at the time of the offense; (2) the offense, if committed by an adult, is punishable by imprisonment in State prison (i.e., a felony); and (3) the juvenile previously has been committed to the Department of Youth Services, or ‘the offense involves the infliction or threat of serious bodily harm,’ or the juvenile committed certain enumerated firearms violations." Felix F. v. Commonwealth, 471 Mass. 513, 515, 31 N.E.3d 42 (2015), quoting § 54.

A motion to dismiss the indictment is a proper vehicle for challenging whether the Commonwealth met its burden on these three issues. See Commonwealth v. Quincy Q., 434 Mass. 859, 865 & n.7, 753 N.E.2d 781 (2001). On such a motion, the evidence must be viewed in the light most favorable to the Commonwealth, see Commonwealth v. Washington W., 462 Mass. 204, 210, 967 N.E.2d 615 (2012), to determine whether the grand jury had probable cause, i.e., heard "reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing" that the § 54 prerequisites were met (citation omitted). Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). Probable cause is a lower standard than proof by a preponderance of the evidence; "it does not demand any showing that ... a belief be correct or more likely true than false." Commonwealth v. Skea, 18 Mass. App. Ct. 685, 689, 470 N.E.2d 385 (1984), quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). See Matter of a Grand Jury Investigation, 427 Mass. 221, 225, 692 N.E.2d 56, cert. denied sub nom. A.R. v. Massachusetts, 525 U.S. 873, 119 S.Ct. 171, 142 L.Ed.2d 140 (1998) ; Commonwealth v. Defrancesco, 99 Mass. App. Ct. 208, 213, 164 N.E.3d 221 (2021).

Here, the juvenile concedes that the first two requirements are met; he was sixteen at the time of the offense, and rape is a felony. He challenges only whether the evidence established probable cause to believe that the rape involved the infliction or threat of serious bodily harm.⁴

2. Serious bodily harm. Section 54 "does not define the phrase ‘infliction or threat of serious bodily harm.’ " Commonwealth v. Clint C., 430 Mass. 219, 225, 715 N.E.2d 1032 (1999). "When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.... We derive the words’ usual and accepted meaning from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions" (citation omitted). Id.

Importantly, § 54 does not require that the infliction or threat of serious bodily harm be an element of the offense. Rather, it requires that "the conduct constituting the offense itself involve[ ] the infliction or threat of serious bodily harm." Clint C., 430 Mass. at 225, 715 N.E.2d 1032. See Felix F., 471 Mass. at 517, 31 N.E.3d 42 ; Quincy Q., 434 Mass. at 863, 753 N.E.2d 781. "The inquiry is fact-intensive." N.M., 478 Mass. at 95, 82 N.E.3d 1036.

The Supreme Judicial Court has observed, in another § 54 case, that "[w]e use ‘serious bodily harm’ and ‘serious bodily injury’ interchangeably." Commonwealth v. J.A., 478 Mass. 385, 388 n.6, 85 N.E.3d 684 (2017). As one of three examples, the J.A. court cited Felix F., 471 Mass. at 517, 31 N.E.3d 42 ; the Felix F. court stated that, for purposes of applying § 54, it saw "no legally cognizable threat of serious bodily harm in the juvenile's conduct" and then, two sentences later, stated that "the juvenile ha[d] not made an explicit threat of serious bodily injury" (emphases added). Felix F., 471 Mass. at 517, 31 N.E.3d 42.⁵ Similarly, in Quincy Q., the court affirmed the dismissal of a youthful offender indictment after agreeing with the motion judge that there was no...