Recently in COMMONWEALTH vs. WILLIAM E. JANSEN 459 Mass. 21 (2011) the court handled an interesting case that gave a nice explanation of commission of rape by ‘joint enterprise’, as well as defining other elements of the crime of rape.
The court in deciding stated “A Superior Court judge correctly allowed a criminal defendant’s motion to dismiss indictments charging aggravated rape on a theory of joint venture, where, as to an indictment premised on the defendant’s individual liability for engaging in sexual intercourse with the victim, there was no evidence at trial that the defendant did so in a united act with either or both of the codefendants; and where, as to indictments premised on the defendant’s culpability for having operated a video camera that recorded sexual acts between the codefendants and the victim, there was no evidence at trial that the defendant operated the camera, or that permitted the jury to infer that the defendant knew the camera was being operated or was involved in its operation.
A Superior Court judge properly denied a criminal defendant’s motion to dismiss so much of an indictment as charged rape, where there was sufficient evidence from which the jury reasonably could have inferred that the defendant had penile-vaginal sexual intercourse with the victim, and that the victim lacked the capacity to consent to sexual intercourse with the defendant.
2. Discussion. Where, as here, the defendant has moved for a required finding of not guilty, and a deadlocked jury resulted in a mistrial, common-law principles of double jeopardy do not bar retrial, provided the Commonwealth “presented evidence legally sufficient to support a conviction at the first trial.” Corson v. Commonwealth, 428 Mass. 193 , 196 (1998). The question for the appellate court in these circumstances is the same as the question before the trial judge on the motion for a required finding of not guilty and, following mistrial, on the defendant’s motion to dismiss: whether the evidence produced by the Commonwealth in its case-in-chief was sufficient to convict on the crimes charged. The evidence may be primarily or entirely circumstantial, provided that, when viewed in the light most favorable to the Commonwealth, it “and the inferences permitted to be drawn therefrom [are] ‘of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.’ ” Commonwealth v. Latimore, 378 Mass. 671 , 677 (1979), quoting Commonwealth v. Cooper, 264 Mass. 368 , 373 (1928).
a. Aggravated rape. In Commonwealth v. Medeiros, 456 Mass. 52 , 60 n.10 (2010), we noted that the “[c]ommission of rape by ‘joint enterprise’ where the ‘joint enterprise’ is an element of the crime is distinct from general liability as a joint venturer” (emphasis added). We stated that “aggravated rape by reason of joint enterprise is a crime that requires ‘the united act of two or more individuals to constitute an offence in either.’ ” Id. at 60, quoting Commonwealth v. Slate, 11 Gray 60 , 63 (1858). Here, irrespective of the manner in attaching individual liability, see Commonwealth v. Medeiros, supra, there was insufficient evidence that the sexual acts underlying all three indictments amounted to a “united act” involving the defendant with another.
With respect to the first indictment, there was no evidence that the defendant engaged in sexual intercourse with Gail, either on or off the videotape, in a “united act” with Kincaid, Lampron, or both. There was no evidence that any sexual act committed by the defendant was done in the presence of or with the knowledge of Kincaid or Lampron, or that Kincaid or Lampron were willing and available to assist the defendant at the time of any sexual intercourse between him (the defendant) and Gail. The evidence, therefore, was not legally sufficient to establish that the defendant acted as part of a joint enterprise with respect to the first indictment, and thus, the aggravated rape aspect of the first indictment cannot stand.
The evidence was also insufficient to demonstrate, with respect to the second and third indictments, that the Commonwealth met its burden in its case-in-chief of establishing that the defendant engaged in a “united act” with Kincaid or Lampron, or both. The Commonwealth’s theory as to these indictments was that the defendant’s culpability arose from his operation of the video camera when Kincaid and Lampron engaged in sexual acts, respectively, with Gail. Even if an inference reasonably could be drawn that someone was manually operating the video camera, there was no evidence that the defendant, as opposed to Kincaid or Lampron, was the operator. Although there was evidence that the heating vent where the video camera was located was accessible from the defendant’s room, it also was accessible from Kincaid’s room. Further, while there was evidence that may have permitted an inference that the defendant was present in the house while the camera was being operated, there was no evidence from which the jury could infer that the defendant knew that it then was being operated or that he was involved in its operation. While the Commonwealth may satisfy its burden of proof through the use of circumstantial evidence, “a jury may not use conjecture or guesswork to choose between alternative inferences.” Commonwealth v. Dostie, 425 Mass. 372 , 376 (1997). Because the inferences that the Commonwealth urges may be drawn improperly and would require the use of conjecture, the second and third indictments cannot stand and further prosecution is barred.
b. Lesser included offense of rape charged in the first indictment. We agree with the Superior Court judge and the Appeals Court in rejecting the defendant’s contention that the Commonwealth presented insufficient evidence with respect to the lesser included offense of rape as charged in the first indictment. “While generally for the crime of rape the Commonwealth must prove that the alleged sexual intercourse occurred by force and without the complainant’s consent, where [as was alleged in this case] the complainant is ‘wholly insensible so as to be incapable of consenting,’ (a) the element of lack of consent is satisfied; and (b) the only force required for proof of the crime is ‘such force as was necessary to accomplish’ the act of intercourse — that is, only the force necessary to effect penetration.” Commonwealth v. Blache, 450 Mass. 583 , 589 (2008), quoting Commonwealth v. Burke, 105 Mass. 376 , 380-381 (1870). Contrary to the defendant’s assertion, the Commonwealth did not fail to prove both penetration and lack of consent.
“Penetration can be inferred from circumstantial evidence.” Commonwealth v. Fowler, 431 Mass. 30 , 33 (2000). Here, there was evidence that a hair tie had been inserted into Gail’s vagina on September 23 or September 24, at the defendant’s house. This evidence included testimony that a portion of the videotape showed Lampron inserting an object inside Gail’s vagina. In addition, DNA testing showed that the defendant could not be excluded as a possible secondary donor of the sperm fraction extracted from the hair tie (which Gail had removed from her vagina on September 24) and plastic bag sample. The statistical significance of the DNA testing results was presented to the jury. See note 13, supra. From this evidence, it was reasonable and possible for a jury to conclude that the defendant had penile-vaginal sexual intercourse with Gail on September 23 or September 24. See id. at 32, 33-34 (presence of sperm in victim’s mouth was sufficient to prove oral penetration beyond reasonable doubt); Commonwealth v. Tavares, 27 Mass. App. Ct. 637 , 642 (1989) (semen, piece of twig, and dirt found in victim’s vagina was sufficient evidence to find penetration beyond reasonable doubt). See also Commonwealth v. Bennett, 424 Mass. 64 , 68 (1997) (inferences need not be necessary, only reasonable and possible). Although Gail acknowledged having had consensual sexual intercourse with the defendant that summer, and the Commonwealth’s expert was unable to say whether the defendant’s semen came from the hair tie or the plastic bag, such matters pertain to the weight of the evidence, not its sufficiency. Indeed, a jury reasonably could infer that the semen recovered from the plastic bag had come from the semen on the hair tie that had been placed into the plastic bag. They also reasonably could infer that the presence of the defendant’s sperm cell DNA on the hair tie removed from Gail’s vagina on September 24 resulted from penetration that occurred on September 23 or 24, and not from the defendant’s consensual sexual encounter with Gail during the summer of 1998.
There also was sufficient evidence from which a jury could infer that Gail lacked the capacity to consent to sexual intercourse with the defendant on September 23 or 24. If a complainant is “wholly insensible so as to be incapable of consenting,” Commonwealth v. Blache, supra, quoting Commonwealth v. Burke, supra, and the defendant is aware of the complainant’s incapacitated state, see Commonwealth v. Blache, supra; Commonwealth v. Burke, supra, the element of lack of consent is satisfied. [Note 21] Here, there was evidence that, in the defendant’s presence, Gail visibly was physically impaired at the bar, as her legs were “giving out” and she walked as if she were “drunk.” There also was evidence that Gail was unable physically to resist or to move during Kincaid’s and Lampron’s sexual encounters with her, either during the night or daytime; that she felt confused while at the defendant’s house; that she later determined that she was missing prescription medication that she had with her at the bar in her purse; that she later determined that there was a hair tie lodged inside her vagina; and she had no memory of any sexual act with the defendant. From this evidence, a jury reasonably could conclude that, because of the ingestion of alcohol or drugs (or both), Gail was “wholly insensible so as to be incapable of consenting” or “so impaired as to be incapable of consenting” to intercourse with the defendant, see Commonwealth v. Blache, supra at 589, 592-593 n.14, during the period she was at the defendant’s house, and that the defendant knew of her incapacity to consent to sexual intercourse when he penetrated her, see id. at 592-593 & n.15.
3. Conclusion. For the reasons stated above, we affirm the order of the Superior Court judge allowing the defendant’s motion to dismiss the second and third indictments, and dismissing only so much of the first indictment as alleged aggravated rape. The case is remanded to the Superior Court for further proceedings consistent with this opinion. So ordered.”
Attorney Ronald A. Sellon