Commonwealth v. Hector Ross.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1046

COMMONWEALTH

vs.

HECTOR ROSS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant,

Hector Ross, was convicted of rape in violation of G. L. c. 265,

§ 22 (b). The judge sentenced him to a State prison term of

four years to four years and one day. The defendant filed a

motion to stay the execution of his sentence with the trial

judge, and upon denial of that motion, with a single justice of

this court. The single justice, reviewing the motion de novo,

denied it. She concluded that the defendant had not

demonstrated a likelihood of success on appeal and that, were

the sentence to be stayed, the defendant posed a security risk

and a potential danger to the community. The defendant timely

appealed. We affirm.
1. Standard of review. We review the single justice's

denial of the defendant's motion to stay for error of law or

abuse of discretion. See Commonwealth v. Nash, 486 Mass. 394,

412 (2020). "An abuse of discretion occurs when a judge makes a

clear error in weighing the relevant factors such that the

decision 'falls outside the range of reasonable alternatives.'"

Commonwealth v. Kalila, 493 Mass. 636, 641 (2024), quoting L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In deciding a

request for a stay, a judge must consider (1) the defendant's

likelihood of success on appeal and (2) security considerations

such as "the possibility of flight to avoid punishment;

potential danger to any other person or to the community; and

the likelihood of further criminal acts during the pendency of

the appeal." Nash, supra at 405, quoting Commonwealth v. Hodge,

380 Mass. 851, 855 (1980). The defendant bears the burden of

proving both factors by a preponderance of the evidence. See

Kalila, 493 Mass. at 642.

2. Likelihood of success on appeal. To satisfy the first

factor, the defendant was required to show that his claims were

appealable issues "worthy of presentation to an appellate court

[and] which offer[ed] some reasonable possibility of a

successful decision in the appeal" (citation omitted). Nash,

486 Mass. at 403. "To establish a reasonable possibility of

success, a defendant need not prove that his success on appeal

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is certain or even more likely than not" (quotation and citation

omitted). Kalila, 493 Mass. at 642. Rather, the first factor

requires answering the question of whether the defendant has

proved the existence of at least one appellate issue with

"sufficient heft" that would provide an appellate court "pause."

Id., quoting Nash, supra at 404.

The defendant argues that he is likely to succeed on appeal

on claims that the evidence presented at trial was insufficient

to prove penetration and lack of consent. To obtain a

conviction of rape under G. L. c. 265, § 22 (b), "the

Commonwealth must prove two elements beyond a reasonable doubt:

first, that there was sexual intercourse between the defendant

and the victim; and second, that the defendant compelled the

victim to submit to the intercourse by force or threat of force

and against the will of the victim" (quotation and citation

omitted). Commonwealth v. Sherman, 481 Mass. 464, 471 (2019).

"In situations where a victim lacks the capacity to consent, the

Commonwealth has no obligation to prove the use of force by the

defendant beyond what is required for the act of penetration"

(quotation and citation omitted). Commonwealth v. Gibson, 488

Mass. 854, 857 (2022). "To satisfy the lack of consent element

in a typical case, the Commonwealth must prove that 'at the time

of penetration, there was no consent.'" Sherman, supra, quoting

Commonwealth v. Lopez, 433 Mass. 722, 727 (2001). The single

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justice concluded that the defendant had not presented any

appellate issues of the necessary "heft." We agree.

a. Penetration. The defendant argues that "no reasonable

juror could find that the [defendant] penetrated the victim"

because "the evidence is woefully lacking in this case." As the

single justice observed, however, viewed in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), the evidence showed that the defendant

interacted with the victim on the night in question, that the

victim found herself within a short distance of the defendant's

mother's home with no memory of getting there, that the victim

experienced vaginal soreness, and that the defendant's DNA was

present in the victim's underwear. See Commonwealth v. Pena, 96

Mass. App. Ct. 655, 661-662 (2019), quoting Commonwealth v.

Fowler, 431 Mass. 30, 33 (2000) ("direct evidence of skin-to-

skin contact is not required; '[p]enetration can be inferred

from circumstantial evidence'"). Contrary to the defendant's

argument, the fact that other DNA profiles were also found in

the victim's underwear would not preclude a jury from inferring

that the defendant engaged in sexual activities with the victim.

See Commonwealth v. Goddard, 476 Mass. 443, 449 (2017), quoting

Commonwealth v. Jones, 432 Mass. 623, 628 (2000) (inferences

drawn from such evidence "need not be necessary and inescapable,

only reasonable and possible"). We agree with the single

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justice that the jury could have readily inferred that the

defendant penetrated the victim's vagina, and that the defendant

is unlikely to succeed on this claim. See Commonwealth v.

Fowler, 431 Mass. 30, 33 (2000) ("Reasonable and possible

inferences may be drawn from largely circumstantial evidence").

b. Lack of consent. The single justice similarly

concluded that the defendant had little likelihood of succeeding

on his claim that the evidence was insufficient to prove the

victim's incapacity to consent. We are not persuaded by the

defendant's argument that the evidence against him was not as

strong as that found sufficient in other cases. See

Commonwealth v. Chilcoff, 103 Mass. App. Ct. 48, 55 (2023) ("The

issue is whether the evidence here met the Latimore standard,

not whether it was as strong as in other cases"). The victim

testified that she attended a concert at a nightclub in Boston

with two friends. The defendant admitted he had also attended

concerts at the same nightclub, although he could not remember

the last time he had been there. After having a few drinks at

the club, the victim went to the bathroom. She remembered

nothing else until she woke up several hours later, extremely

groggy, in the defendant's neighborhood, with which she had no

connection, with no memory of how she got there. The grogginess

she experienced was unlike the type she usually felt after

having a few drinks.

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The defendant points to countervailing evidence,

specifically that the victim's drug and alcohol panels from the

next day were negative and that no one at the club saw her

exhibiting classic signs of intoxication, in support of his

argument that he could not have known that the victim was

incapacitated. The single justice concluded, however, that the

defendant's argument that he was unaware of the victim's

intoxication was "not plausible" considering "evidence of the

victim's memory deficits and unfamiliar feeling of grogginess

after spending time in a nightclub where she was drinking." A

reasonable inference from the evidence presented was that the

victim was extremely intoxicated and that the defendant knew or

should have known that she lacked the ability to consent. See

Commonwealth v. Blache, 450 Mass. 583, 590 (2008) ("consumption

or even intoxication by itself is not the issue. . . . The

question instead is whether, as a result of the complainant's

consumption of drugs, alcohol, or both, she was unable to give

or refuse consent"). The defendant's argument that the evidence

of incapacity was insufficient is not likely to succeed on

appeal.

3. Security concerns. In "an abundance of caution," the

single justice further concluded that, based on the defendant's

criminal history and the severity of the sentence imposed, the

defendant would pose a security risk if his sentence were stayed

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pending appeal. Because the defendant's failure to demonstrate

a likelihood of success on appeal is reason enough to deny his

motion for a stay, see Kalila, 493 Mass. at 645, we need not

consider the single justice's security determination.

Order of the single justice
denying motion to stay
execution of sentence
affirmed.

By the Court (Massing,
Englander & D'Angelo, JJ.1),

Clerk

Entered: July 10, 2025.

1 The panelists are listed in order of seniority.

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