Commonwealth v. Harris

74 Mass. App. Ct. 105 (2009)

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Nature of the Case

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Facts

D's friend, Carlos Johnson, met the thirteen-year-old victim, Jane Smith, on an eighteen and over telephone 'chat line.' Johnson and Smith arranged to meet in person at Smith's home. Johnson, D, and two other men arrived at Smith's house at about 8:30 P.M. in a car D was driving. As Smith left her house to meet Johnson, her father, standing about fifteen feet from the car, yelled that she should not get in because she was 'underage.' There was no direct evidence that anyone in the car heard what he said. Smith returned to her house, but snuck out a different door, met Johnson, and got into the backseat between two unidentified men. Johnson sat in the front D drove. They stopped at a liquor store. D got out to buy some potato chips and alcohol. While D was gone, Smith told the occupants that she was thirteen years old. D returned. Smith wanted to go to a park to hang out but D drove toward a highway. Johnson handed her the liquor, telling her to take 'a couple of sips.' She protested, but he ultimately persuaded her to take a drink. They eventually arrived at a motel that did not require a credit card and D got a room. Smith was fearful of going into the room, but Johnson persuaded her to go, saying that they were just going to stay there for a couple of minutes and 'chill.' Smith had taken 'a couple more sips' of the liquor and was intoxicated to the point where she could not walk and her legs 'were, like, buckling and everything.' All but D took turns having sexual intercourse with her while she drifted in and out of consciousness. D remained in the room throughout, sometimes watching television and sometimes watching what the others were doing to her. Eventually, D drove back to Smith's neighborhood, where he dropped her off somewhere in the vicinity of her house. Staggering, incoherent, and smelling of alcohol, she arrived home sometime after 11 P.M. The police were already there as she had been reported as a missing juvenile. She was taken to the emergency room. Her blood-alcohol level was .131 and she suffered a number of painful vaginal injuries. Anal and vaginal swabs produced sperm, but none of the resulting extractions of deoxyribonucleic acid (DNA) could be traced to D. D was arrested. D said that Smith told D and Johnson that she couldn't leave until her 'dad [met] the person she was leaving with.' Johnson and Smith got out of the car, apparently met her father, and then got back in. D claimed he got the room and left and returned 30 minutes later. D told the officers that he had not seen any alcohol that evening and that he had made no observations about Smith's condition when he returned to the motel. , though he noted that she 'didn't say much' during the ride from Seekonk to Providence. D called two witnesses who said that they had seen him in Providence between approximately 9:30 P.M. and 10 P.M. on the relevant evening and corroborated other parts of his testimony. The judge instructed the jury on the presence and nonpresence theories of joint venture liability. The instruction addressed nothing about age and D didn't request such an instruction. the jury twice asked the judge about what the Commonwealth had to prove regarding d's knowledge of Smith's age. The judge instructed, that conviction did not require proof that either Johnson or the defendant knew the victim's age. Between those questions, the jury announced that they were deadlocked, six-to-six. They received another charge consistent with Commonwealth v. Rodriquez and then returned a verdict of guilty on the lesser included offense of statutory rape by joint venture. D argues on appeal that conviction of statutory rape on a nonpresence joint venture theory requires proof that D knew that sexual intercourse was planned for the room he procured for Smith and Johnson and that he knew Smith was under the age of sixteen.