Almost an Attempt to Rape not good enough for conviction

On March 12, 2010 the  MASSACHUSETTS APPEALS COURT reversed convictions of attempted rape of a child and attempted indecent assault and battery of a child under fourteen in COMMONWEALTH vs. DENNIS JAMES PITTS 08-P-1596 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In reviewing the facts the court stated “A Superior Court jury convicted the defendant of enticement of a child, G. L. c. 265, § 26C, attempted rape of a child, G. L. c. 265, § 23, and attempted indecent assault and battery of a child under fourteen, G. L. c. 265, § 13B. [FN1] In this appeal, we address the defendant’s claims that it was error to deny his motion to dismiss the two attempt charges and that the evidence was insufficient to convict him of those offenses.

Sufficiency of the evidence. On the question of the sufficiency of the evidence to support the defendant’s conviction for the two attempt crimes, Van Bell, supra, is controlling. To support conviction, ‘[t]he defendant must have had ‘a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out.” Van Bell, supra at 416, quoting from Commonwealth v. Peaslee, 177 Mass. 267, 273- 274 (1901) (requiring showing that after preparing to commit crime defendant undertook overt acts toward fulfilling crime that ‘come near enough to the accomplishment of the substantive offence to be punishable’).

‘To sustain a conviction for criminal attempt, the Commonwealth must prove (1) a specific intent to commit the substantive offense . . . ; and (2) an overt act towards its commission, which overt act ‘must approach the achievement of the substantive crime attempted near enough to warrant criminal liability.” Commonwealth v. Fortier, 56 Mass. App. Ct. 116, 121-122 (2002), quoting from Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974). To test the sufficiency of the evidence, we must ‘determine if the evidence of preparations taken by the defendant proceeded sufficiently close to the substantive crime to amount to an attempt. Factors to take into account in determining how proximate the overt act must be to the commission of the substantive offense are the gravity of the crime, the uncertainty of the result, and the seriousness of any threatened danger.’ Van Bell, supra at 414.

The Commonwealth argues that the overt act in the case before us was the defendant’s arrival at a predetermined location at the agreed upon time to meet the juvenile female, because he then would only have had to drive to her apartment, a short distance away. We disagree. Here, the defendant arrived at the meeting place, a Dunkin Donuts, exited his vehicle and entered the store; he left with a cup and a small bag and re-entered his vehicle, whereupon he was arrested. ‘Although the evidence in the instant case is sufficient to show that the defendant intended and prepared for the rape of a child, it is not sufficient to show that he undertook an overt act that put him so near — in time or ability — to the completion of the crime as to be guilty of attempt.’ Id. at 416. [FN3] See Commonwealth v. Fortier, 56 Mass. App. Ct. at 122 (a particular overt act does not complete attempt offense if further acts are contemplated as necessary).

Conclusion. The judgment convicting the defendant of enticement of a child is affirmed; the judgments convicting him of attempted rape of a child and attempted indecent assault and battery of a child under fourteen are reversed and the verdicts set aside.”


A summary decision pursuant to 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. Nonetheless, the ruling is disturbing. The simple fact is that the court did not believe the police waited long enough before arresting the Defendant to allow him to satisfy the statute. How close is close enough and how far is too far according to the court? He did so intend to meet and subsequently rape a child under the age of 14. whether he was allowed to get to the destination or stopped short by Officers should be irrelevant. It begs the question, If the defendant had been given the longer time frame as per the court, what would have happened had he noticed what was happening and attempted to flee. The results, could have proven disasterous. The enticement statute saved this case.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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