Commonwealth v. Newcomb, 10–P–1369.

• Decision Date: 28 September 2011
• Docket Number: No. 10–P–1369.,10–P–1369.
• Citation: 80 Mass.App.Ct. 519,954 N.E.2d 67
• Parties: COMMONWEALTHv.Thomas NEWCOMB.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 519

954 N.E.2d 67

COMMONWEALTH

v.Thomas NEWCOMB.

No. 10–P–1369.

Appeals Court of Massachusetts, Middlesex.

Argued May 5, 2011.Decided Sept. 28, 2011.

Thomas D. Frothingham for the defendant.Katharine B. Folger, Assistant District Attorney (Marguerite T. Grant, Assistant District Attorney, with her) for the Commonwealth.Present: CYPHER, BROWN, & HANLON, JJ.BROWN, J.

In 2010, following a jury-waived trial, the defendant was found guilty on two indictments charging him with rape of his adult daughter in 1993 and 1996, respectively. See G.L. c. 265, § 22( b ).

On appeal, the defendant argues that the trial judge erred in denying his motion for a required finding of not guilty because there was insufficient evidence to convict him. The defendant also argues that his pretrial motion to dismiss should have been allowed because the evidence before the grand jury was insufficient to establish force and lack of consent; that his pretrial motion to dismiss the 1993 rape charge should have been allowed on the ground that the charge was time barred; and that evidence related to a 1990 incident should have been excluded because it was unduly prejudicial and constituted impermissible propensity evidence.¹

We present the essential facts in the light most favorable to the Commonwealth. The victim was the defendant's adult biological daughter, Angela.² In 2008, Lowell police Detective Greg Hudon received information that the defendant fathered two children, Catelyn and Donald, with the victim.³ At the time these allegations came to light, the police were aware of a prior conviction ⁴ in which the defendant had been accused of fathering the victim's only other child, Beth, in 1989 (the year of conception), when the victim was fifteen years old.⁵ The two rapes at issue in this appeal relate solely to the two younger children.

The victim, who was born on February 6, 1974, was thirty-five when she testified at trial and the children who are the subject of the indictments were twelve and fifteen years old, respectively. The victim said that throughout her life, the defendant struggled with alcoholism and when he drank, he drank to excess. The victim explained that during her childhood, including high school, “[t]here would be a lot of mental abuse when he came home, towards my mother.” The defendant would be angry, yelling, and accusing the victim's mother of being interested in other men. The victim was afraid the defendant would hurt her mother, because “when someone is drunk, you don't know what they're capable of.” The victim, like her mother, was also the recipient of the defendant's drunken tirades, while her two brothers were never similarly rebuked.

The defendant's principal argument on appeal is that there was insufficient evidence for the judge to find him guilty of rape under the Commonwealth's theory of constructive force or that the victim was incapable of providing consent. “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, 897 N.E.2d 105 (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, 569 N.E.2d 774 (1991), quoting from Commonwealth v. Novicki, 324 Mass. 461, 467, 87 N.E.2d 1 (1949). Cf. Commonwealth v. Feijoo, 419 Mass. 486, 491–492, 646 N.E.2d 118 (1995). Stated differently, there must be proof that the victim was afraid or that she submitted to the defendant because his conduct intimidated her. See Commonwealth v. Caracciola, supra at 654, 569 N.E.2d 774.

At trial, the victim acknowledged that sexual intercourse with the defendant always followed the same pattern.⁶ She admitted that the defendant began having sexual intercourse with her when she was thirteen or fourteen years old. The victim acknowledged that “it always happened the same way.” The defendant's “pattern” would be to come home drunk in a “nasty, fresh” mood. The defendant would then have sexual intercourse with her in the living room of the family home while her mother and two younger brothers were either asleep or her brothers were out for the evening.⁷

The Commonwealth maintains on appeal, as it did below, that this evidence permits the inference that every act of intercourse the victim had with the defendant followed the same pattern, even the charged conduct that occurred in 1993 and 1996, and demonstrates that the sexual intercourse was accomplished with constructive force.

According to the Commonwealth, that pattern was one which included the defendant's description of the victim as passively accepting his advances while she looked away, as well as the victim's assessment of the defendant as always drunk, nasty, and fresh. The victim testified she was afraid of the defendant when he was drunk. It is also significant that the sexual assaults began when the defendant was an authority figure and the victim was in his care, and was combined with the additional advantage he gained from being about twenty years older than the young female victim, and thus, likely stronger and larger. See generally Commonwealth v. Armstrong, 73 Mass.App.Ct. at 255–256, 897 N.E.2d 105.

The Commonwealth argues that the victim's having been thus inculcated to submit to the defendant's advances, his impregnation of her when she was only fifteen years old, and the subsequent birth of their child, perpetuated the defendant's control over her. At a time when the victim developmentally should have been moving towards independence, the defendant imposed circumstances that guaranteed her dependence on him. Without support from her family, the victim had no resources to support herself or her infant, Beth. Having secured control over the victim, the defendant was able to continue to sexually assault her. This environment, in combination with the victim's testimony that every act of intercourse with the defendant followed the same pattern—namely, passive acquiescence to the defendant who was drunk and created an aura of fear, albeit for her mother—permits an inference that the charged conduct that occurred in 1993 and 1996 was accomplished in precisely the same circumstances that demonstrated constructive force when she was fourteen. Those circumstances included a fear of the defendant that was never dissipated because her ability to separate from her father was compromised by him. See, e.g., Commonwealth v. Kirkpatrick, 423 Mass. 436, 444, 668 N.E.2d 790 (1996) (Commonwealth not required to prove that defendant renewed threats of physical harm every time he approached nine year old victim to establish that rapes accomplished by force and against victim's will). This conclusion is bolstered by the defendant's startling admission to a DSS supervisor, see note 5, supra, that he found it “nearly impossible” not to give in to his urges or desire for sex with his daughter.

While admittedly the victim was no longer a child when the charged acts occurred, Massachusetts decisional law has recognized that sexual conduct involving a young adult may well constitute rape because of what occurred before the victim matured. In Commonwealth v. Wallace, 76 Mass.App.Ct. 411, 922 N.E.2d 834 (2010), a case involving a young adult victim, the court considered whether the evidence was sufficient to establish constructive force in a rape charge brought under G.L. c. 265, § 22( b ). The defendant, Wallace, befriended the victim, a neighborhood boy, when the victim was ten years old. The sexual assaults began when the victim was eleven and generally followed the same pattern. Id. at 413, 922 N.E.2d 834. The defendant would push or wrestle the victim onto his bed, turn off the lights and television, lock the apartment door, put a pillow over the victim's head, and fellate him. Ibid.

In Wallace, during the first few years of the victim's abuse, the assaults occurred two or three times a month. Id. at 414, 922 N.E.2d 834. After he turned sixteen, the victim would still visit the defendant, although less frequently, and about once a month the defendant continued to fellate him. Ibid. On appeal, the defendant challenged, among other things, the indictment covering the assaults that occurred after the victim turned sixteen. The victim did not do anything to stop the attacks because he was scared: he had observed the defendant's bad temper with third persons, and he thought the defendant was associated with the police. Id. at 413–414, 922 N.E.2d 834. He also thought the defendant was his friend and that the assaults were his fault. Id. at 414, 922 N.E.2d 834.

The court in Wallace reasoned that “the events must be viewed in light of the history of [the victim's and defendant's] relationship and the defendant's predatory behavior. By the time [the victim] had turned sixteen, the defendant had been raping [the victim] for many years, starting when [the victim] was as young as eleven.” Id. at 418, 922 N.E.2d 834. In addition, the victim testified “that he feared the consequences of resisting the defendant's sexual advances (even if the specific consequences he feared were not spelled out).” Ibid. The court reasoned that the evidence permitted the inference that “the defendant's course of conduct—including his grooming the victim by repeatedly raping him as a child—was designed to instill fear in order to achieve his goal.” Id. at 418 n. 11, 922 N.E.2d 834.

Here, the evidence of a prior pattern of repeated sexual assaults by the defendant upon the victim when she was a child, combined with the victim's statement that the assaults always happened the same way, permit an inference that current charges involving the victim (who was an adult at the time at issue in these charges) were accomplished by constructive force and against the will of the victim. Interwoven with this evidence was the pattern...