Commonwealth v. Chilcoff

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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.