Commonwealth v. Chilcoff ( 2023 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
22-P-583 Appeals Court
COMMONWEALTH vs. RYDER CHILCOFF.
No. 22-P-583.
Hampshire. May 9, 2023. – August 2, 2023.
Present: Sacks, Shin, & D'Angelo, JJ.
Rape. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Consent. Deoxyribonucleic
Acid. Evidence, Admissions and confessions, Intoxication,
Sexual conduct, Voluntariness of statement. Practice,
Criminal, Admissions and confessions, Instructions to jury.
Indictment found and returned in the Superior Court
Department on March 7, 2018.
A pretrial motion to suppress evidence was heard by Richard
J. Carey, J., and the case was tried before him.
Ashley P. Allen for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
D'ANGELO, J. A jury in the Superior Court convicted the
defendant of rape, in violation of G. L. c. 265, § 22 (b). The
charge stems from an encounter between the victim and the
defendant, Ryder Chilcoff, when the victim entered the
2
defendant's dormitory room. The victim was unsteady, wobbling,
stumbling, and was confused as to whose room she was in. After
being in the room for some time, the victim took the defendant's
hands and rubbed them on her chest and vaginal area. The
defendant asked the victim what she wanted to do, and she
replied, "I want you" and "I want to stay here." The defendant
thereafter had sexual intercourse with the victim.
At trial, the defendant requested a jury instruction on
what he labels as a mistake of fact, asserting that he actually
and reasonably believed that the victim was capable of
consenting to the intercourse. See Commonwealth v. Lopez, 433
Mass. 722, 725 n.2 (2001) ("we refer to the defendant's proposed
instruction of a reasonable and honest belief as to consent as a
'mistake of fact' instruction"). The request was denied.
The defendant challenges his conviction on the following
grounds: (a) his motion to suppress his statements should have
been allowed; (b) his motion for a required finding of not
guilty should have been allowed because there was insufficient
evidence presented that the victim was incapable of consenting
because of intoxication; (c) the judge erred by excluding
evidence that deoxyribonucleic acid (DNA) testing on the
underpants that the victim was wearing during her examination by
a sexual assault nurse examiner (SANE) five days after the rape
showed the presence of another person's sperm; (d) the judge
3
incorrectly excluded text messages between the victim and her
sister about the victim blacking out in the past; and (e) the
jury instructions were insufficient on the issue of the
defendant's belief as to the victim's capacity to consent. We
affirm the defendant's conviction.
1. Facts. The jury could have found the following facts.
The defendant and the victim were both undergraduate students at
the University of Massachusetts in Amherst in 2017. The victim
lived in in a particular dormitory, and the defendant's room was
directly above the victim's. On December 8, 2017, the victim
attended a "pregame" party at approximately 9:15 P.M. where she
drank four to six "nip" bottles of ninety-nine proof vodka
within thirty minutes. She also "shot gunned" a can of beer and
consumed additional amounts of beer while playing a drinking
game.1 The victim and her friends then left the party to go to a
fraternity house. The victim was "stumbling . . . drunk" and
"wobbling." The victim did not remember leaving the party; the
last thing she remembered was playing the drinking game.
After she left the fraternity house, fellow students
offered to help her go back to her dormitory because they did
1 Shotgunning is defined as "to drink (something, especially
a beer) quickly, by puncturing a hole in the bottom of a can,
placing one's mouth over the hole, and then opening the top of
the can slightly, causing the liquid to drain down one's
throat." http://www.dictionary.com/browse/shotgun
[https://perma.cc/54DM-HKTY].
4
not believe she was in any condition to be walking alone. They
described the victim as unsteady on her feet, slurring her
words, and unable to walk a straight line. The victim had to
hold on to someone for support and was not making sense when she
spoke. The fellow students walked the victim back to her
dormitory and watched her go inside and get through the security
process.
The victim went to the wrong floor of the dormitory and
entered the defendant's room, which was directly above her own
room. The defendant was with his roommate and his roommate's
friend (friend) watching a movie; none of them knew the victim.
After they told her she was in the wrong room, the victim
stroked the friend's face with her hands and then left the room,
at which point, the friend said, "Wow that girl is drunk." The
defendant was present when the friend made this statement.
A short time later, around midnight, the victim came back
into the room, took off her shirt, and got into the defendant's
bed. The victim told the defendant, his roommate, and the
friend that she lived in the Sylvan residential area, which is
on the other side of campus, and was in this dormitory looking
for her friend. She also said that she did not know where she
was and then upon being asked if she knew what room she was in,
gave her own room number rather than the number of the room
where they in fact were. She was unsteady and wobbling, and her
5
speech was slurred. While she was in the defendant's bed, she
spilled water on herself, and then fell asleep and was snoring.
The defendant's roommate thought she was so intoxicated that he
feared she would vomit on the defendant's bed.
A short time later, in the presence of the defendant's
roommate, the victim took the defendant's hands and rubbed them
on her chest and vaginal area. The defendant asked the victim
what she wanted to do, and she replied, "I want you" and "I want
to stay here." The defendant's roommate commented, "just
because she's saying it doesn't mean it's okay." The roommate
also asked the defendant if he should get the resident assistant
to help get the victim out of the room and the defendant
declined the invitation. When the defendant's roommate asked
what the defendant wanted him to do, the defendant responded by
motioning for the roommate to leave the room, which the roommate
then did. A short time later, the defendant had intercourse
with the victim.
The defendant then sent his roommate a text message and
apologized. When the roommate returned to the room, he heard
the victim snoring; both he and the defendant also went to
sleep. The defendant left the room in the early morning hours
to catch a bus to New York City for a preplanned visit. The
victim woke up later that morning in the defendant's room with
no memory of any of the events of the previous evening after
6
leaving the pregame party and did not know where she was. While
searching for her clothing, she and the defendant's roommate
found a used condom; testing revealed both the defendant's and
the victim's DNA. The victim did not find the underpants she
had been wearing the previous night and never saw them again.
The victim left the defendant's room and returned to her room
one floor below. Her vaginal area was sore, she had chest pain,
and she believed that someone had had sex with her while she was
in the room upstairs.
During the police investigation, the defendant was
questioned by the police and gave an audio-recorded statement.
The defendant admitted that the victim had entered his room and
seemed to think that it was her room, but that after she made
sexual advances toward him, they engaged in what he believed
were consensual sexual relations. As we discuss later, prior to
trial the defendant filed a motion to suppress the statement,
which was denied.
At the close of all the evidence, defense counsel requested
a jury instruction that "[t]he defendant is not guilty of this
crime if he actually and reasonably believed that the
[c]omplainant was capable of consenting to sexual intercourse
even if that belief was wrong." The judge declined to give the
requested instruction, but instead instructed the jury
substantially in accordance with the proposed jury instruction
7
provided by the Supreme Judicial Court in Commonwealth v.
Blache, 450 Mass. 583, 595 n.19 (2008), by instructing the jury
that they "must consider whether the defendant actually knew or
a reasonable person under the circumstances would have known
that the complainant was unable to consent."
The defendant was convicted of rape and he timely appealed.
2. Discussion. a. Motion to suppress. i. Custody. The
defendant claims that the judge erred in ruling that the
defendant was not in custody at the time of his interview by the
police and therefore not entitled to Miranda warnings. "Miranda
warnings are required only when a suspect is subject to
custodial interrogation." Commonwealth v. Simon, 456 Mass. 280,
287, cert. denied, 562 U.S. 874 (2010). In assessing custody,
"the court considers several factors: (1) the place of the
interrogation; (2) whether the officers have conveyed to the
person being questioned any belief or opinion that that person
is a suspect; (3) the nature of the interrogation, including
whether the interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed; and
(4) whether, at the time the incriminating statement was made,
the person was free to end the interview by leaving the locus of
the interrogation or by asking the interrogator to leave, as
evidenced by whether the interview terminated with an arrest."
Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). The
8
Groome factors merely provide a framework for assessing the
ultimate question: "whether the defendant was subjected to 'a
formal arrest or restraint of freedom of movement of the degree
associated with a formal arrest.'" Commonwealth v. Medina, 485
Mass. 296, 301 (2020), quoting Thompson v. Keohane, 516 U.S. 99,
112 (1995). In this case, all of the factors support the
judge's conclusion that the defendant was not in custody at the
time he spoke to the police.
When reviewing a ruling on a motion to suppress, we are
bound by the judge's subsidiary findings of fact, unless they
are clearly erroneous, but we conduct an independent review of
the judge's ultimate findings and conclusions of law. See
Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018)
(voluntariness of defendant's Miranda waiver and statements
during custodial interrogation); Commonwealth v. Carnes, 457
Mass. 812, 818-819 (2010) (whether defendant was subject to
custodial interrogation). The place of the questioning was in a
common room in the defendant's dormitory, across from his own
room. The doors were unlocked, the room was large, and numerous
individuals were able to come and go during the interview.
Before and during the interview, the officers never suggested to
the defendant that he was suspected of a crime; rather, the
judge found that at the time of the interview, the officers were
9
"just starting to sort out each party's story about the night of
the alleged incident."
The judge's findings that the questions were not accusatory
and not aggressive is amply supported by the record and thus not
clearly erroneous. Lastly, the defendant was not restrained
during the interview, was told at the outset by the police that
he could leave at any time, and was not arrested at the end of
the interview. In fact, he was not charged with the crime until
one month after his questioning. There was no error in the
judge's ruling that the defendant was not in custody and thus
not entitled to Miranda warnings.
ii. Voluntariness. The defendant also argues that the
judge erred in finding that the defendant's statement to the
police was voluntary. The test for voluntariness is "whether,
in light of the totality of the circumstances surrounding the
making of the statement, the will of the defendant was overborne
to the extent that the statement was not the result of a free
and voluntary act." Commonwealth v. Raymond, 424 Mass. 382, 395
(1997), quoting Commonwealth v. Selby, 420 Mass. 656, 663
(1995), S.C., 426 Mass. 168 (1997). Factors which can be
relevant to the determination of voluntariness include the
defendant's age, education, intelligence, emotional stability,
experience with the criminal justice system, and any discussion
of leniency or a deal by police or other promises or
10
inducements. See Commonwealth v. Mandile, 397 Mass. 410, 413
(1986). However, the presence of one or more factors suggesting
involuntariness does not necessarily make a statement
involuntary. See Selby, supra at 664.
In this case, the defendant was a young adult and a college
student, was not impaired by drugs or alcohol, was calm at all
times, and answered all questions appropriately. Although the
police may have misled the defendant by indicating they had no
intention of talking to his friends about the incident, as they
later did, there was no evidence at the motion hearing to
suggest that the defendant's statement was not "the product of a
rational intellect and a free will" (quotation and citation
omitted). Selby, 420 Mass. at 662. There was no error.
b. Sufficiency of the evidence. "When reviewing a motion
for a required finding of not guilty, the 'question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt'
(emphasis in original)." Commonwealth v. Grassie, 476 Mass.
202, 207 (2017), S.C., 482 Mass. 1017 (2019), quoting
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The
relevant question is whether the evidence would permit a jury to
find guilt [beyond a reasonable doubt], not whether the evidence
11
requires such a finding." Commonwealth v. Brown, 401 Mass. 745,
747 (1988).
The prosecution's theory at trial was that the victim
lacked the ability to consent to intercourse since she was
incapacitated by her intoxication. See Blache, 450 Mass. at
591-592. While "[t]he law does not require that the complainant
have been rendered 'unconscious or nearly so' before she may be
deemed past the point of consent," id. at 591, the "formulation
–- because of the consumption of drugs or alcohol or for some
other reason (for example, sleep, unconsciousness, mental
retardation, or helplessness), the complainant was so impaired
as to be incapable of consenting –- is intended to communicate
to the jury that intoxication must be extreme before it can
render a complainant incapable of consenting to intercourse"
(quotation omitted). Id. at 592 n.14. Additionally, in such
circumstances, the Commonwealth must prove [beyond a reasonable
doubt] that the defendant knew or reasonably should have known
that the complainant's condition rendered her incapable of
consenting to the sexual act." Id. at 594.
The defendant contends that no rational trier of fact could
find beyond a reasonable doubt that he knew or reasonably should
have known that the victim was in a condition that would render
her incapable of consenting to sexual intercourse. The
defendant's argument that the evidence of the victim's
12
incapacity was not as strong as that found sufficient in other
cases is unavailing. The issue is whether the evidence here met
the Latimore standard, not whether it was as strong as in other
cases. The evidence produced at trial was that the victim
initially said she lived in another dormitory and then thought
she was in her own room as opposed to the defendant's, she was
swaying and needed help walking, her speech was slurred and
sometimes nonsensical, and the friend commented, "Wow that girl
is drunk." When the victim said to the defendant, "I want you"
and "I want to stay here," the defendant's roommate warned,
"just because she's saying it doesn't mean it's okay," and
offered to seek help from the resident assistant, which the
defendant refused. Additionally, the victim took off her shirt
and fell asleep in the bed of the defendant, a stranger.
We are satisfied that this evidence was sufficient to
support the finding that the victim was too intoxicated to
consent to sexual activity and that the defendant knew or
reasonably should have known that she was incapable of consent.
c. Exclusion of DNA evidence. Before trial, the defendant
moved in limine to admit the results of a DNA test conducted on
cuttings from the underpants that the victim was wearing at the
time of the SANE examination, five days after the rape. The
results of the DNA test showed the presence of sperm fragments
on the underpants that did not come from the defendant. The
13
judge denied the motion pursuant to the rape shield statute,
G. L. c. 233, § 21B.
The rape shield statute states that "[e]vidence of specific
instances of a victim's sexual conduct . . . shall not be
admissible except evidence of the victim's sexual conduct with
the defendant or evidence of recent conduct of the victim
alleged to be the cause of any physical feature, characteristic,
or condition of the victim." G. L. c. 233, § 21B. See Mass. G.
Evid. § 412(b) (2023). After a written motion, an offer of
proof, and an in camera hearing, the evidence will be admitted
only if "the court finds that the weight and relevancy of said
evidence is sufficient to outweigh its prejudicial effect to the
victim." G. L. c. 233, § 21B. See Commonwealth v. Joyce, 382
Mass. 222, 231 (1981) ("In the exercise of this discretion a
trial judge should consider the important policies underlying
the rape-shield statute"). As the proponent of the evidence,
the defendant had the burden of proving admissibility. See
Commonwealth v. Dunne, 394 Mass. 10, 16-17 (1985).
The defendant proffered no evidence that showed that the
underpants collected at the SANE examination were the same as
the ones that the victim was wearing on the night of the rape.
At trial, the victim testified that she never again saw the
underpants she had worn that night. Therefore, the judge did
not abuse his discretion in ruling pursuant to G. L. c. 233,
14
§ 21B, that the probative value of the results of the DNA tests
on sperm found on the underpants that the victim was wearing
five days after the rape was not sufficient to outweigh its
prejudicial effect on the victim. See Mass. G. Evid.
§ 412(c)(2). See also Commonwealth v. Gentile, 437 Mass. 569,
582 (2002) ("the victim's consent to intercourse with one man
does not imply her consent in the case of another" [citation
omitted]). Cf. Commonwealth v. Cortez, 438 Mass. 123, 129-130
(2002) (victim's consensual intercourse forty-eight hours before
the murder not relevant to explain fresh injuries to victim).
Similarly, the defendant's argument that the sperm on the
underpants would tend to show that the victim had intercourse
with a different individual on the night of the rape and explain
the victim's testimony regarding the pain in her vaginal area is
unavailing since the defendant proffered no evidence that they
were the same underpants.
Finally, and contrary to the defendant's other argument,
even if they had been the same underpants, evidence of
intercourse earlier in the evening would have little if any
relevance in showing that the victim had the capacity to consent
to intercourse when she later encountered the defendant. See
Commonwealth v. Sa, 58 Mass. App. Ct. 420, 426 (2003) (judge
properly excluded evidence that victim had consensual sex with
boyfriend soon after rape; "the evidence would appeal to
15
unfounded and antiquated biases about what a 'virtuous' or
'chaste' woman would be likely to do in similar circumstances").
The judge properly exercised his discretion in excluding
the evidence and there was no error.
d. Exclusion of text messages. The defendant attempted to
introduce a text message exchange that the victim had with her
sister the next morning, suggesting that the victim had prior
experience with alcohol-induced blackouts. The judge allowed
the defendant to introduce text messages in which the victim
stated that she "didn't even drink that much" and "blacked," but
excluded her text message stating, "I hate blacking," and her
sister's response, "Sameeee." The defendant argues that the
excluded text messages would have impeached the victim's trial
testimony that on the day following the rape she was depressed
and stayed in bed all day. He asserts that the exclusion of the
"I hate blacking" text message unfairly left the jury with the
impression that her condition on the night of the rape was an
extraordinary event, of which the defendant took advantage. We
are not persuaded.
Questions of the admissibility of evidence are "entrusted
to the trial judge's broad discretion and are not disturbed
absent palpable error." Commonwealth v. Sylvia, 456 Mass. 182,
192 (2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 578-
579 (2001). Relevant evidence may be excluded if its probative
16
value is substantially outweighed by its unfair prejudicial
effect. See Gentile, 437 Mass. at 582-583. See also Mass. G.
Evid. § 403 (2023). "We will conclude that there has been an
abuse of discretion only if the judge has 'made a clear error of
judgment in weighing' the factors relevant to the decision,
. . . such that the decision falls outside the range of
reasonable alternatives.'" Commonwealth v. Hammond, 477 Mass.
499, 505 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
Here, the judge carefully engaged in the required balancing
of prejudicial impact and probative value and allowed the
defendant to utilize some of the text messages on cross-
examination. Contrary to the defendant's arguments, it is
difficult to see how the victim's prior experiences with
blacking out were probative of her state of mind at the time of
the rape, her credibility, or any other issue in the case. The
judge did not abuse his discretion in admitting some of the text
messages and excluding others.
e. Jury instructions. Because the defendant requested a
jury instruction and objected to the judge's ruling denying that
instruction, we review for prejudicial error.2 See Commonwealth
v. Kelly, 470 Mass. 682, 687 (2015).
2 The defendant proposed the following instruction in
pertinent part:
17
A mistake of fact instruction "is available where the
mistake negates the existence of a mental state essential to a
material element of the offense." Lopez, 433 Mass. at 725. The
Supreme Judicial Court held in Lopez that the defendant was not
entitled to an instruction regarding an honest and reasonable
mistake as to the victim's consent when the Commonwealth was
"If a person is totally unable to consent to intercourse
because of the consumption of alcohol or drugs or for some
other similar reason and a defendant knows or reasonably
should know that, then any resulting intercourse is without
the person's consent. . . . If, because of the consumption
of alcohol, a person is so impaired as to be totally
incapable of consenting to sexual intercourse, then
intercourse that happens while the person is unable to
consent is not consensual. It is not enough for the
Commonwealth to prove that the Complainant was intoxicated
or under the influence of alcohol or drugs to some degree.
Instead, to prove that the Complainant was totally
incapable of consenting to intercourse, the Commonwealth
must prove that she was so impaired that she was totally
unable to consent.
. . . .
"If you find that the Complainant was so impaired as to be
totally unable to consent, then you have to decide whether
the Commonwealth has proved that [the] Defendant knew or
reasonably should have known that. The Commonwealth has
the burden to prove beyond a reasonable doubt that the
defendant knew or reasonably should have known that [the]
complainant was totally incapable of consenting. To decide
this, you must consider whether [the] Defendant actually
knew, or a reasonable person, under the circumstances,
would have known, that the Complainant was unable to
consent. The defendant is not guilty of this crime if he
actually and reasonably believed that the Complainant was
capable of consenting to sexual intercourse even if that
belief was wrong." (Emphasis added.)
18
proceeding on the theory that "the defendant compelled the
victim's submission by use of physical force; nonphysical,
constructive force; or threat of force." Id. at 729. The court
did acknowledge, however, that a mistake of fact defense as to
consent might be appropriate in "a future case where a
defendant's claim of reasonable mistake of fact is at least
arguably supported by the evidence." Id. at 732.
Subsequently, in Blache, 450 Mass. at 593-595, the court
considered whether a defendant charged with raping someone
incapable of consenting to intercourse due to intoxication was
entitled to an instruction on mistake of fact. The court
declined to adopt a rule that would mandate the mistake of fact
instruction in such a situation. See id. at 593-594. However,
it acknowledged that the potential for a defendant's reasonable
mistake as to consent could increase "in situations where the
prosecution is not required to prove the use of force beyond
that necessary for penetration" -- such as where the
prosecution's theory is that "the complainant lacked the
capacity to consent." Id. at 594, citing Lopez, 433 Mass. at
728-729. The court held that, in those situations, "the
Commonwealth must prove that the defendant knew or reasonably
should have known that the complainant's condition rendered her
incapable of consenting to the sexual act," and provided a
19
proposed instruction.3,4 Id. at 594-595. See Commonwealth v.
Kennedy, 478 Mass. 804, 810-811 (2018); Commonwealth v. Butler,
97 Mass. App. Ct. 223, 230-236 (2020).
3 The model instruction set forth by the Supreme Judicial
Court in Blache, 450 Mass. at 595 n.19, reads in full:
"In this case, there has been evidence that the complainant
[had consumed alcohol; had consumed drugs; was unconscious;
etc.]. If, because of the consumption of drugs or alcohol
or for some other reason (for example, sleep,
unconsciousness, mental retardation, or helplessness), a
person is so impaired as to be incapable of consenting to
sexual intercourse, then intercourse occurring during such
incapacity is without that person's consent.
"If you find that the Commonwealth has proved beyond a
reasonable doubt that the complainant was so impaired as to
be incapable of consenting as I have just described, and if
you further find that the Commonwealth has proved beyond a
reasonable doubt that the defendant knew, or reasonably
should have known, that the complainant's condition
rendered her [or him] incapable of consenting, then the
Commonwealth has proved the element of lack of consent,
and, on the element of force, the Commonwealth need only
prove that the defendant used the degree of force necessary
to accomplish the sexual intercourse -- that is, to effect
penetration.
"However, if the Commonwealth has not proved that the
complainant lacked the capacity to consent, or if the
Commonwealth has not proved that the defendant knew or
reasonably should have known of such incapacity, then in
order to find the defendant guilty of rape, you must find
that the Commonwealth has proved the elements of lack of
consent and force as I have defined these elements for you
earlier."
4 The Superior Court model jury instruction on rape is
"based closely on the instruction promulgated by the Supreme
Judicial Court in Commonwealth v. Blache, 450 Mass. 583, 595
n.19 (2018)." Model Jury Instructions on Rape 4 n.16 (2021),
http://www.mass.gov/doc/superior-court-model-criminal-jury-
instructions-rape-word/download [https://perma.cc/YJ6Y-9627].
20
The judge here instructed the jury substantially in
accordance with the instruction promulgated in Blache, 450 Mass.
at 595 n.19, by stating,
"If you find that the complainant was so impaired as to be
unable to consent, then you have to decide whether the
Commonwealth has proved that the defendant knew or
reasonably should have known that. To decide this, you
must consider whether the defendant actually knew or a
reasonable person under the circumstances would have known
that the complainant was unable to consent."5
In essence, the instruction that the judge gave to the
jury, that the Commonwealth was required to prove that the
defendant actually knew, or reasonably should have known, of the
victim's incapacity to consent, encompasses the substance of the
instruction requested by the defendant: that "he actually and
reasonably believed that the [c]omplainant was capable of
consenting to sexual intercourse even if that belief was wrong."
The model jury instructions were drafted by a committee of
Superior Court judges. See Introduction to Superior Court Model
Jury Instructions, https://www.mass.gov/guides/superior-court-
model-jury-instructions#-introduction- [https://perma.cc/J73S-
Y9TE].
5 This instruction has two alternative elements of
knowledge. The first is the defendant's actual knowledge of the
victim's incapacity and the second is that the defendant
reasonably should have known of the victim's incapacity –- "a
mix of subjective and objective components." Commonwealth v.
Mountry, 463 Mass. 80, 91 (2012). "The subjective component
focuses on the defendant's . . . knowledge [and t]he objective
component focuses on what the average prudent person possessing
the defendant's knowledge would have understood regarding the
victim's incapacity." Id.21
"A trial judge is not required to instruct the jury in the terms
requested by a defendant so long as the substance of the
requested instructions is adequately covered." Commonwealth v.
Sinai, 47 Mass. App. Ct. 544, 547 (1999). That is the case
here, and there was no error in the judge declining to give the
defendant's requested instructions.
The defendant also requested that the jury be instructed
that the victim had to be "totally incapable of consenting to
sexual intercourse" at the time of the event, as opposed to
simply "incapable" of consenting.6 The judge's instructions
comported with Blache, 450 Mass. at 595 n.19. Thus, we find no
error.
The defendant also faults the judge for including a portion
of the charge on incapacity that included the phrase, "or for
some other reason, for example sleep or helplessness." There
was evidence presented that the victim had fallen asleep in the
defendant's bed. Therefore, there was no error. See
Commonwealth v. Indrisano, 87 Mass. App. Ct. 709, 718 (2015)
("instruction may be given where there is an inference . . .
that may be drawn from the evidence" [quotation and citation
omitted]).
6 This requested instruction reflects the dissenting opinion
in Blache, 450 Mass. at 603 (Spina, J., dissenting). However,
we must follow the law presented in the majority opinion. See
id. at 595 n.19.
22
Judgment affirmed.