Opinion
No. 11–P–1149.
2012-11-14
COMMONWEALTH v. Peter J. DUART.
By the Court (KANTROWITZ, SIKORA & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Peter J. Duart, was convicted of rape, subsequent offense, and indecent assault and battery. See G.L.c. 265, § 22( b ); G.L. c. 265, § 13H.
The defendant was originally charged with indecent assault and battery on a mentally retarded person, subsequent offense. See G.L.c. 265, § 13F (since amended to “intellectual disability” by St.2010, c. 239, §§ 71, 72). He was found guilty of the lesser included offense.
On appeal, the defendant claims (1) insufficiency of the evidence in that (a) constructive force was not proven, and (b) his prior conviction was offered but not marked as a trial exhibit; and (2) error in the judge's decision to leave sex offender treatment to the discretion of the probation officer.
Constructive force. Proof of the force element of rape under G.L.c. 265, § 22( b ), may be established by physical force or constructive force. See Commonwealth v. Armstrong, 73 Mass.App.Ct. 245, 254 (2008). Constructive force may be “by threatening words or gestures and operates on the mind” to instill fear in the victim in order for the defendant to achieve his goal against the victim's will. Commonwealth v. Caracciola, 409 Mass. 648, 652 (1991), quoting from Commonwealth v. Novicki, 324 Mass. 461, 467 (1949). The defendant claims that the Commonwealth failed to introduce sufficient evidence concerning constructive force, which was the theory of force on which the judge relied as fact finder. We disagree. Under the governing standard, Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979), viewing the totality of the evidence in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to prove constructive force. As the judge found, the sixty-nine year old victim was of “significant sub-average intellectual functioning” and the defendant had held an authoritarian position over him. The victim testified twice that the defendant threw him to the couch. He testified that he told the defendant “no” and “to stop” during the rape. The victim also testified that he was scared of the defendant, who was stronger than him. He said he tried to push the defendant away, but that he was scared the defendant would hit him.
As such, the evidence was sufficient to permit the trial judge to find that the defendant had unnatural sexual intercourse with the victim by constructive force and against his will. “The victim [was] not required to use physical force to resist; any resistance is enough when it demonstrates that [his] lack of consent is ‘honest and real.’ “ Commonwealth v. Sherry, 386 Mass. 682, 688 (1982), quoting from Commonwealth v. McDonald, 110 Mass. 405, 406 (1872).
Subsequent offender. The defendant's claim, raised for the first time on appeal, of the insufficiency of the evidence to convict him as a subsequent offender because the documentary proof of his prior conviction was offered but not marked as an exhibit, is without merit. Our reading of the transcript indicates that the Commonwealth offered the records and the judge admitted them. That the clerk failed to so note was merely a scrivener's error.
The probation officer, Brendan Lucey, testified that he had previously supervised the defendant for indecent assault and battery and rape. At the close of the Commonwealth's case, the prosecutor offered the court certified copies of the convictions referenced by Officer Lucey. The trial judge accepted them, and the defense did not object. Moreover, during closing arguments, the Commonwealth mentioned the convictions; the defense again did not object.
Probation. The sentencing judge is responsible for setting the conditions of probation. Commonwealth v. MacDonald, 50 Mass.App.Ct. 220, 223 (2000), quoting from A.L. v. Commonwealth, 402 Mass. 234, 242 (1988). Only a judge has the authority to modify the terms of a defendant's probation. See Buckley v. Quincy Div. of the Dist. Ct. Dept., 395 Mass. 815, 819–820 (1985).
The defendant claims, pursuant to Commonwealth v. Lally, 55 Mass.App.Ct. 601 (2002), that leaving sex offender treatment to the discretion of the probation department was an improper delegation of sentencing authority. In Lally, the sentencing judge ordered that the defendant submit to “treatment as deemed necessary.” Id. at 601. This court held that the order was not sufficiently specific to support the probation officer's additional condition, random urine screening for drugs and alcohol, as part of “treatment.” Id. at 603. This court further held that probationers are entitled to reasonably specific conditions that provide clear guidelines as to what actions or omissions will constitute a violation of their probation. Ibid.
The probation condition here, requiring sex offender treatment “at [the] PO's [probation officer's] discretion,” lacked the specificity required.
The condition of probation regarding discretionary sex offender treatment is vacated and the matter is remanded for the sentencing judge to either definitively order or not order such treatment. The judgments are otherwise affirmed.
So ordered.