Commonwealth v. Lopez

745 N.E.2d 961 (2001)

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Nature of the Case

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Facts

The victim, a seventeen-year-old girl, was living in a foster home in Springfield. At approximately 3 P.M., she started walking to a restaurant where she had planned to meet her biological mother. On the way, she encountered D. D introduced himself, asked where she was going, and offered to walk with her. The victim met her mother and introduced D as her friend. D said that he lived in the same foster home as the victim and that 'they knew each other from school.' Sometime later, D left to make a telephone call. When the victim left the restaurant, D was waiting outside and offered to walk her home. She agreed. The two walked to a park across the street from the victim's foster home and talked for approximately twenty to thirty minutes. The victim's foster sisters were within earshot, and the victim feared that she would be caught violating her foster mother's rules against bringing 'a guy near the house.' D suggested that they take a walk in the woods nearby. At one point, deep in the woods, the victim said that she wanted to go home. D said, 'trust me,' and assured her that nothing would happen and that he would not hurt her. D led the victim down a path to a secluded area. D began making sexual innuendos to which the victim did not respond. D grabbed her by her wrist and began kissing her on the lips. She pulled away and said, 'No, I don't want to do this.' D then told the victim that if she 'had sex with him, [she] would love him more.' She repeated, 'No, I don't want to. I don't want to do this.' He raised her shirt and touched her breasts. She immediately pulled her shirt down and pushed him away. D then pushed the victim against a slate slab, unbuttoned her pants, and pulled them down. Using his legs to pin down her legs, he produced a condom and asked her to put it on him. The victim said, 'No.' D put the condom on and told the victim that he wanted her to put his penis inside her. She said, 'No.' He then raped her, and she began to cry. A few minutes later, the victim made a 'jerking move' to her left. D became angry, turned her around, pushed her face into the slate, and raped her again. The treating physician described the bruising to the victim's knees as 'significant.' The physician opined that there had been 'excessive force and trauma to the [vaginal] area' based on his observation that there was 'a lot of swelling' in her external vaginal area and her hymen had been torn and was 'still oozing.' The doctor noted that in his experience it was 'fairly rare' to see that much swelling and trauma. D told the victim that she 'would get in a lot of trouble' if she said anything. He then grabbed her by the arm, kissed her, and said, 'I'll see you later.' The victim went home and showered. She told her foster mother, who immediately dialed 911. The victim cried hysterically as she spoke to the 911 operator. D testified that the victim had been a willing and active partner in consensual sexual intercourse. D claimed that the victim initiated intimate activity, and never once told him to stop. D testified that the victim invited him to a party that evening so that he could meet her friends. D further claimed that when he told her that he would be unable to attend, the victim appeared 'mildly upset.' D requested a mistake of fact instruction as to consent. The judge declined. D's theory at trial was that the victim actually consented and not that the D was 'confused, misled, or mistaken' as to the victim's willingness to engage in sexual intercourse, the judge concluded that the ultimate question for the jury was simply whether they believed the victim's or D's version of the encounter. D was convicted and appealed.