Commonwealth v. Morris
| Decision Date | 04 October 2021 |
| Docket Number | 20-P-488 |
| Parties | COMMONWEALTH v. DELACY MORRIS. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of multiple counts of rape, incest, and indecent assault and battery on a person over fourteen years of age, as well as trafficking of a person under eighteen years of age for sexual servitude.[1] On appeal, he claims that there was insufficient evidence to support his convictions for rape and indecent assault and battery, the judge improperly excluded evidence, and the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
1. Sufficiency of the evidence.
Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009).
a. Rape.
Sufficiency of the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass. at 677-678. In this case, to establish the defendant's guilt of rape in violation of G. L. c. 265, § 22 (b), the Commonwealth must prove two elements beyond a reasonable doubt: first, that there was sexual intercourse between the defendant and the victim; and second, that the defendant compelled the victim to submit to intercourse "by force or threat of force and against the will of the victim." Commonwealth v. Lopez, 433 Mass. 722, 726 (2001). "The second [element] has been interpreted 'as truly encompassing two separate elements: force or threats, and lack of consent." Commonwealth v. Sherman, 481 Mass. 464, 471 (2019), quoting Lopez, supra at 727.
The defendant claims the Commonwealth presented insufficient evidence on two counts of rape, i.e., counts 3 and 11. As noted above, the defendant was acquitted of count 11, and no further discussion is required. See note 1, supra. As to count 3, [2] the defendant claims that there was insufficient evidence that he committed the rape with force, or that there was lack of consent. We disagree.
"Proof of the force element of rape . . . may be established by physical force or constructive force." Commonwealth v. Armstrong, 73 Mass.App.Ct. 245, 254 (2008). Constructive force may be "by threatening words or gestures and operates on the mind" to instill fear in the victim in order for the defendant to achieve his goal. Commonwealth v. Caracciola, 409 Mass. 648, 652 (1991), quoting Commonwealth v. Novicki, 324 Mass. 461, 467 (1949).
In the light most favorable to the Commonwealth, there was ample evidence from which the jury could have rationally concluded that the defendant raped the victim by employing constructive force. Indeed, the evidence showed that when the victim's mother sought the defendant's help in getting the victim away from the world of prostitution, the defendant instead got her drunk, raped her, impregnated her, and then sold her to strangers as a prostitute. These acts demonstrated his control over the victim. That is, constructive force was established through evidence that the relationship the defendant had with the victim was such that he could overbear the will of the victim without overt physical acts. His conduct and control over the victim operated on her mind to permit him to achieve his goal. See Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 417-418 (2010).
Finally, and contrary to the defendant's suggestion, [3] his role as the victim's father/authority figure contributed to the jury's ability to find that he exercised constructive force over her, even though he was an absentee father for fourteen or fifteen years. In fact, the defendant's help was sought by the victim's mother because he was the victim's father. However, rather than being a role model, the defendant squandered his opportunity to help the victim, and instead manipulated and took advantage of the vulnerable teenaged victim. This too helped paint a sufficient picture of constructive force. See Commonwealth v. Newcomb, 80 Mass.App.Ct. 519, 521-523 (2011).
The defendant also claims that the evidence was insufficient to establish that the victim did not consent to the defendant's assaults. We disagree. "To satisfy the lack of consent element in a typical case, the Commonwealth must prove that 'at the time of penetration, there was no consent.'" Sherman, 481 Mass. at 471, quoting Lopez, 433 Mass. at 277. Here, the victim, often plied with alcohol, did not convey any form of consent, either explicit or implicit, that she was "okay" with the defendant's actions. Rather, the evidence revealed the victim's reactions immediately after each instance of sexual abuse, including that she felt uncomfortable, awkward, sad, and disgusted. From these reactions, the jury were free to conclude that she had not consented to these assaults. See Commonwealth v. Leroux, 12 Mass.App.Ct. 886, 886 (1981).
b. Indecent assault and battery.
The defendant also claims that there was insufficient evidence to prove lack of consent with respect to count 6, which charged the defendant with touching the victim's vagina, and count 14, which charged him with touching the victim's anus with his penis. We disagree.
"'To prove indecent assault and battery on a person age fourteen or older, the Commonwealth is required to establish that the defendant committed an intentional, unprivileged, and indecent touching of the victim' without the victim's consent." Commonwealth v. Butler, 97 Mass.App.Ct. 223, 232 (2020), quoting Commonwealth v. Kennedy, 478 Mass. 804, 810 (2018). Here, the defendant claims only that the evidence was insufficient to prove lack of consent.
Lack of consent may be established without explicit verbal expression, and it may be inferred from the overall facts and circumstances surrounding the sexual assault. See Commonwealth v. Shore, 65 Mass.App.Ct. 430, 432-433 (2006). As recounted above relative to the defendant's rape convictions, after each of the intentional, indecent touchings, the victim felt disgust, discomfort, and sadness. From this evidence, and from the circumstances underlying the assaults, [4] the jury were entitled to find the victim did not consent.
2. Excluded testimony.
We review a judge's evidentiary rulings for an abuse of discretion. See Commonwealth v. Rosa, 468 Mass. 231, 237 (2014). A "judge's discretionary decision constitutes an abuse of discretion [when] . . . the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the defendant claims that the judge improperly excluded proposed testimony from the defendant's cousin that she heard the victim tell the defendant, "Watch, I'm going to get you." This exclusion, the defendant claims, deprived him of his right to present a complete defense. We disagree.
The defendant and his cousin went to the hospital to visit the victim. During direct examination, defense counsel asked the cousin if the victim said anything to the defendant at the hospital. The prosecutor objected, and at sidebar, counsel explained that the alleged threat was not being offered for its truth, but only to establish a motive for the victim to lie.[5]The judge sustained the prosecutor's hearsay objection.
As the judge reasoned, the statement was only relevant if it was considered for its truth, i.e., the victim was going to "get" the defendant, and the defense would argue that, as promised, the victim got revenge on the defendant by lying at trial. This was not an abuse of discretion. See L.L., 470 Mass. at 185 n.27.
For the first time on appeal, the defendant claims that the statement was admissible under the state of mind exception to the hearsay rule. In that posture, we review only to determine if there was error, and if so, whether it created a substantial risk of a miscarriage justice. See Commonwealth v Randolph, 438 Mass. 290, 297 (2002). "[T]he state of mind exception applies to '[s]tatements, not too remote in time, which indicate an intention to engage in particular conduct.'" Commonwealth v. Fredette, 97 Mass.App.Ct. 206, 219 (2020), quoting Mass. G. Evid. § 803(3)(B)(ii) (2019). While this may have been a ground for admission of the statement, the judge did not have the opportunity to view the issue through this lens. Even if the statement was not too remote in time, it did not indicate the victim's intention to...
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