Commonwealth v. Osher
| Decision Date | 12 October 2022 |
| Docket Number | 21-P-548 |
| Parties | COMMONWEALTH v. ALEXANDER OSHER. |
| 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
Following a jury trial in the Superior Court, the defendant was convicted of one count of rape, G. L. c. 265, § 22 (b) one count of assault with intent to rape, G. L. c. 265 § 24, and two counts of indecent assault and battery, G. L. c. 265, § 13H.[1]On appeal, the defendant contends that (1) the motion judge erred in denying his pretrial motion to sever the indictments, (2) the evidence was insufficient to support his convictions of rape and assault with intent to rape, and (3) the trial judge erred in permitting prejudicial first complaint evidence. We affirm.
Discussion.
1. Joinder.
The defendant was tried for sexually assaulting five different women on five different occasions, each within the context of a massage therapy session. He argues that the motion judge (who was not the trial judge) erred in denying his motion to sever the five indictments, or, at a minimum, by failing to sever the rape and assault with intent to rape charges from the three charges of indecent assault and battery because they were unduly prejudicial. We disagree.
The decision of whether to sever indictments lies within the sound discretion of the judge, and this court does not reverse that decision absent clear abuse of that discretion. Commonwealth v. Hall, 485 Mass. 145, 165 (2020). To prevail on a claim of misjoinder, the defendant must demonstrate that: (1) the offenses were unrelated, and (2) the "prejudice from joinder was so compelling that it prevented him from obtaining a fair trial." Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005).
"Mass. R. Crim. P. 9 (a)[, 378 Mass. 859 (1979),] permits the joinder of 'related offenses' for trial 'if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan'" (citation omitted). Commonwealth v. Spray, 467 Mass. 456, 468 (2014). "Factors a judge may consider in determining whether offenses are related include factual similarities, . . . closeness of time and space[, and] . . . whether evidence of the other offenses would be admissible in separate trials on each offense" (citation omitted) . Id. "Offenses are related if the 'evidence in its totality shows a common scheme and pattern of operation that tends to prove' each of the complaints" (citation omitted) . Id. at 469.
We discern no abuse of discretion in the motion judge's determination that the offenses here were related. The five offenses occurred over a span of less than three months between October 2016 and January 2017. Each offense took place in the same location and involved female patients who had sought massage treatment from the defendant for the first time. The defendant also employed a common plan or scheme in committing nearly each offense by manipulating the blanket or the victim's underwear to expose or provide access to the victim's vaginal or chest area. This constitutes a pattern allowing for the joinder of these related offenses. See Commonwealth v. Magri, 462 Mass. 360, 364-365 (2012).
The defendant has also failed to meet his burden of proving undue prejudice from the joinder. As noted by the motion judge, were the offenses tried separately, the evidence from the rape and assault with intent to rape charges would have been admissible in any individual trial to show intent, a common pattern or course of conduct, or absence of mistake or accident.
See Commonwealth v. Mazariego, 474 Mass. 42, 56 (2016); Commonwealth v. Elliott, 87 Mass.App.Ct. 520, 524 (2015) (). The mere fact that "the defendant's chances for acquittal of [one of the charges] might have been better had the offenses been tried separately" is not enough to establish prejudice requiring severance (quotation and citation omitted). Spray, 467 Mass. at 469. "Rather, the defendant must show that a particular tactic or right was foreclosed by the joinder." Id. The defendant has not done so here. Furthermore, the jury acquitted the defendant of one of the three indecent assault and battery charges. "Such discernment by the factfinder in assessing the evidence is a strong indication that a misjoinder of offenses has not resulted in any actual prejudice to the defendant" (citation omitted). Id.
2. Sufficiency.
The defendant next argues that the trial judge erred in denying his motions for required findings of not guilty on the counts of rape and assault with intent to rape. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (). He contends that the Commonwealth provided insufficient evidence of (1) the element of force to convict him of rape and (2) his specific intent to commit the crime of assault with intent to rape. Again, we disagree.
a. 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." Commonwealth v. Gibson, 488 Mass. 854, 857 (2022), citing G. L. c. 265, § 22 (b). "Force can be actual physical force, nonphysical constructive force, or threat of force." Id." [A] ctual force is applied to the body, constructive force is by threatening words or gestures and operates on the mind" and may arise from "the circumstances or fear in which the victim is placed, the impact of those circumstances or fear on the victim's power to resist and the defendant's conduct" (citation omitted). Commonwealth v. Caracciola, 409 Mass. 648, 651-652 (1991).
We conclude that there was sufficient evidence to support the force element of rape. Here, the rape victim testified that, while the defendant was massaging her inner thigh, she "felt something swipe [her] genitals." Moments later, while massaging her other leg, the defendant moved her underwear to the side, exposing her vagina. She then "felt [the defendant] put his finger in and around [her] labia." Once she was able to remove her hand from underneath the blankets, the victim pushed the defendant's hand away to stop the touching. She explained at trial that she did not say anything in response to the defendant's conduct because she was "in shock" and was "very scared." This evidence was sufficient to satisfy the element of force required under G. L. c. 265, § 22 (b). See Commonwealth v. Feijoo, 419 Mass. 486, 493 (1995) ().
b. Assault with intent to rape.
"The two elements of assault with intent to rape are an assault on the victim and a specific intent by the defendant at the time of the assault to rape the victim." Commonwealth v. Lahens, 100 Mass.App.Ct 310, 314 (2021), quoting Commonwealth v. Martin, 447 Mass. 274, 287 n.9 (2006). Specific intent may be proved by circumstantial evidence. Martin, 447 Mass. at 287. "The inferences drawn need only be 'reasonable...
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