Opinion
18-P-1449
06-08-2020
COMMONWEALTH v. KAILYN BONIA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of two counts of assault with intent to rape, four counts of indecent assault and battery on a person over fourteen, and one count of kidnapping. G. L. c. 265, §§ 13H, 24, 26. The defendant primarily argues that the testimony of two witnesses who viewed video recordings of the incident via the mobile application Snapchat (Snapchat videos) was unreliable as a matter of law and could not constitute sufficient evidence for the conviction. We affirm.
Discussion. We review sufficiency arguments to determine "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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The defendant argues that the short length, ephemeral nature, and other characteristics of the Snapchat videos render testimony about the videos so unreliable that it cannot support a conviction as a matter of law. We disagree.
The defendant does not challenge the admissibility of the Snapchat evidence, but confines her challenge to the sufficiency of the evidence, explicitly "waiv[ing] any claim giving rise to retrial rather than entry forthwith of a not guilty finding." Compare Commonwealth v. DiBenedetto, 414 Mass. 37, 45 (1992) (where insufficiency becomes apparent only after improperly admitted evidence has been excluded, retrial is not barred by double jeopardy clause), with Burks v. United States, 437 U.S. 1, 18 (1978) ("the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient"). In any event, even a successful admissibility challenge would have no impact on the sufficiency of the evidence analysis, as we consider "the evidence in its entirety, including, not excluding, that admitted [at] trial but found inadmissible on appeal." Commonwealth v. Mauricio, 477 Mass. 588, 597 (2017), quoting DiBenedetto, supra at 46.
The reliability of witness testimony that relays the contents of a video is squarely a question for the jury. See Commonwealth v. Nhut Huynh, 452 Mass. 481, 485 (2008) ("The videotape images were blurry, poor quality, and required an interpretation by the defendant's investigator. The reliability of the investigator's work, and whether he accurately identified persons shown in the videotape, which was based in part on out-of-court witness statements, was a question for the jury to resolve"). See also Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 581 (2017). Here, the jury found the testimony sufficiently reliable to find the defendant guilty. The defendant has cited no precedent, nor are we aware of any, which mandates that the jury's reliability determination be disturbed, and we decline to do so.
In Connolly, this court held that prior to admitting testimony regarding the contents of a missing video, "the Commonwealth had to lay sufficient foundational facts to enable the jury to make their own findings about the accuracy and reliability of the officer's identifications"). 91 Mass. App. Ct. at 581. Once the video has been admitted, however, questions regarding its reliability and accuracy are left to the jury.
The Commonwealth proceeded on the theory that the victim, who was highly intoxicated, was incapable of consenting to sex. The defendant asserts that the Commonwealth needed to establish that the defendant was also sober enough to know that the victim was incapable of rendering such consent. We disagree. The Commonwealth was only required to "prove that the defendant knew or reasonably should have known that the complainant's condition rendered her incapable of consenting to the sexual act." Commonwealth v. Blache, 450 Mass. 583, 594 (2008). That requirement did not automatically impose an affirmative duty on the Commonwealth to establish the defendant's sobriety. Cf. Commonwealth v. Kelcourse, 404 Mass. 466, 469 (1989), quoting Commonwealth v. Sylvester, 400 Mass. 334, 338 (1987). ("The Commonwealth, however, did not have to prove that the defendant was not intoxicated. Voluntary intoxication is merely 'an evidentiary factor which the jury can consider'"). In any event, there was no evidence elicited at trial regarding the amount of alcohol, if any, the defendant consumed or her level of intoxication. Accordingly, where the defendant's intoxication was not an issue at trial, the Commonwealth was not required to disprove it. Cf. Commonwealth v. Brown, 449 Mass. 747, 768 (2007), quoting Commonwealth v. Chaleumphong, 434 Mass. 70, 78 (2001) ("An instruction on voluntary intoxication is not required absent evidence of 'debilitating intoxication'").
In Commonwealth v. Mountry, 463 Mass. 80 (2012), the Supreme Judicial Court noted "where there is credible evidence of a defendant's mental impairment, a defendant is entitled to the jury's consideration of [her] mental condition as it relates to [her] ability to possess the requisite knowledge." Id. at 91-92. Although the defendant presented no evidence of impairment, the jury instruction required in Mountry was given here out of an abundance of caution.
Last, the defendant asserts that the evidence was insufficient to support a kidnapping conviction and, in any event, on these facts, it is duplicative of the sexual assault charges. We are not persuaded. To support a separate kidnapping conviction, the Commonwealth is required to establish a "confinement, detention, or restraint exceeding the conduct necessary for commission of the other charged offenses [that is] independent, [and] not incidental, conduct." Commonwealth v. Oberle, 476 Mass. 539, 548 (2017), quoting Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 195 (2008). Here, as the victim tried to "wiggle" away from being sexually assaulted, the defendant held the victim down by her throat and prevented her from moving. While this confinement only slightly exceeded the conduct of the underlying assault, it still amply supports the kidnapping conviction. See Oberle, supra at 549 (evidence of confinement was sufficient where defendant told victim he was going to kill her, held victim down by her throat, ignored her plea to stop, and victim attempted to leave but could not).
Judgments affirmed.
By the Court (Maldonado, Blake & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 8, 2020.