Commonwealth v. Jhonata Sousa.

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

23-P-1438

COMMONWEALTH

vs.

JHONATA SOUSA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Jhonata Sousa, was convicted of two counts of rape of

a child with force, G. L. c. 265, § 22A, and one count of

indecent assault and battery on a child under fourteen, G. L.

c. 265, § 13B.1 He appeals from the convictions of rape of a

child with force, contending that the evidence was insufficient

to establish the element of force beyond a reasonable doubt. We

affirm.

1The defendant was found not guilty of one count of
indecent assault and battery on a child under fourteen. The
defendant was also charged with two counts of statutory rape,
which were dismissed as lesser included offenses of the two
counts of rape of a child with force.
Discussion. In reviewing the defendant's challenge to the

sufficiency of the evidence of force, we "consider the evidence

in the light most favorable to the Commonwealth to determine

whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). See

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). There

must be sufficient evidence for the jury to conclude beyond a

reasonable doubt that the sexual acts were "against [the] will"

of the child. G. L. c. 265, § 22A. "Proof of the force element

of rape under G. L. c. 265, § 22A, may be established by

physical force or constructive force." Commonwealth v.

Armstrong, 73 Mass. App. Ct. 245, 254 (2008). See Commonwealth

v. Caracciola, 409 Mass. 648, 653-654 (1991). "Constructive

force requires proof that the victim was afraid or that she

submitted to the defendant because his conduct intimidated her"

(quotation and citation omitted). Commonwealth v. Vasquez, 462

Mass. 827, 846 (2012). A determination of constructive force

requires "examination of the circumstances or fear in which the

victim is placed, the impact of those circumstances or fear on

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the victim's power to resist[,] and the defendant's conduct."

Caracciola, supra at 651.2

Here, the evidence, taken in the light most favorable to

the Commonwealth, was sufficient to prove constructive force.

The defendant, the victim's brother-in-law, was a trusted

caretaker figure to the victim. On the night of the assault,

the defendant got in bed behind the victim, moved her to face

him, and sexually abused her by touching and penetrating her

vagina for forty-five minutes. The defendant, an adult male,

was approximately six feet, four inches tall and 250 pounds.

The victim was a twelve year old girl and was described as "a

peanut," at five foot, three inches and one hundred pounds. As

in Armstrong, 73 Mass. App. Ct. at 255, the defendant "took

advantage of the young victim as she slept in his house, where

the defendant was an authority figure, and the victim was in the

care of the defendant and his wife," and "the defendant . . .

[was] a much larger person than the victim[.]" The victim

testified that during the assault, she was "frozen," "didn't

2 The defendant contends that there was insufficient
evidence of force because no "force or threat of bodily harm"
was used to compel the victim to engage in sexual acts. This
argument ignores established case law on constructive force,
see, e.g., supra, and as such must fail. See Commonwealth v.
Dube, 59 Mass. App. Ct. 476, 485 (2003) ("we have no power to
alter, overrule, or decline to follow the holding of cases the
Supreme Judicial Court has decided"), and cases cited.

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want to move a muscle," and was "terrified." Because the victim

had observed the defendant's "very bad temper" in the past, she

was afraid she or her sister (the defendant's wife) would be

hurt if she moved. See Commonwealth v. Wallace, 76 Mass. App.

Ct. 411, 418 (2011) (jurors entitled to credit victim's

testimony that he "feared the consequences of resisting the

defendant's sexual advances [even if the specific consequences

he feared were not spelled out]"). Evaluating this evidence in

the light most favorable to the Commonwealth, a rational jury

could have found constructive force beyond a reasonable doubt.

See Latimore, 378 Mass. at 676-677.

Judgments affirmed.

By the Court (Blake, C.J.,
Shin & Hand, JJ.3),

Clerk

Entered: January 10, 2025.

3 The panelists are listed in order of seniority.

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