Commonwealth v. Martinez

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23-P-37 Appeals Court

COMMONWEALTH vs. JOSEPH A. MARTINEZ.

No. 23-P-37.

Plymouth. November 2, 2023. - March 29, 2024.

Present: Sacks, Brennan, & D'Angelo, JJ.

Attempt. Rape. Indecent Assault and Battery. Minor. Consent.
Practice, Criminal, Dismissal.

Indictments found and returned in the Superior Court
Department on September 27, 2021.

A motion to dismiss was heard by Gregg J. Pasquale, J.

Elizabeth A. Mello Marvel, Assistant District Attorney, for
the Commonwealth.
Joshua J. Wood (Moira C. Barry also present) for the
defendant.

BRENNAN, J. The Commonwealth appeals from an order of the

Superior Court dismissing indictments against the defendant for

attempted rape of a child, attempted indecent assault and

battery on a child under fourteen, and attempted indecent
2

assault and battery on a person aged fourteen or older. We

reverse the order of dismissal.

Background. In 2019, the defendant was an inmate at a

Massachusetts correctional facility. Over the course of roughly

three months, the defendant routinely called his mother from

prison. During these calls, he also spoke to his daughter

(child), who lived with the defendant's mother.

The child was thirteen years old when the calls began but

turned fourteen years old during the three-month period. Her

mother lived out of state, and they had limited contact. The

child had not been in the custody of either parent since she was

"two or three years old," and the defendant "had just recently

beg[un] speaking with her." The defendant's conversations

during the calls with the child were graphic and "very sexual in

nature." Because the defendant called from a correctional

facility, the conversations were recorded.

During one call when the child was thirteen years old, the

defendant described how he wanted to have sex with her when they

were alone together. He instructed her how to masturbate and

told the child, "you might as well touch yourself now . . .

while I'm talking to you." She told the defendant she could not

touch herself at that moment because she was "in the car in

front of KFC," but that she would "do it in [her] bedroom."
3

During another call when the child was fourteen years old,

the defendant again described how he would have sex with her

when they were alone together. He then instructed the child to

masturbate, telling her to lick her finger and "put [her] finger

in" and "push it in and go up with your finger," "like you're

saying come here." After the child indicated she was not

following his directions, the defendant said, "go ahead, you

might as well," and the child indicated to him that she had

complied.1

The grand jury indicted the defendant on charges of (1)

attempted indecent assault and battery on a child under

fourteen, (2) attempted indecent assault and battery on a person

fourteen or older, (3) attempted rape of a child under the age

of sixteen, (4) incest, and (5) reckless endangerment of a

child. The defendant filed a motion to dismiss. A judge

dismissed the first three counts of the indictment, determining

that the Commonwealth failed to present sufficient evidence to

the grand jury to support the attempt charges.

Discussion. 1. Standard of review. "We review

determinations on issues of law in motions to dismiss de novo"

(citation omitted). Commonwealth v. Sullivan, 492 Mass. 36, 42

1 At oral argument, the Commonwealth indicated that it did
not ask the grand jury to indict the defendant for rape because
the victim told investigators that she had not, in fact, put her
fingers in her vagina.
4

(2023). "A grand jury may indict when presented with sufficient

evidence of 'each of the . . . elements' of the charged

offense." Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020),

quoting Commonwealth v. Moran, 453 Mass. 880, 884 (2009).

Evidence is sufficient to indict when it "establish[es] the

identity of the accused . . . and probable cause to arrest" for

the crime charged. Commonwealth v. McCarthy, 385 Mass. 160, 163

(1982). "Probable cause is a considerably less exacting

standard than that required to support a conviction at trial"

(quotation and citation omitted). Stirlacci, 483 Mass. at 780.

"It requires sufficient facts to warrant a person of reasonable

caution in believing that an offense has been committed, not

proof beyond a reasonable doubt" (quotation and citation

omitted). Id. We review "the evidence underlying a grand jury

indictment in the light most favorable to the Commonwealth."

Id.

2. Attempted rape of a child and attempted indecent assault

and battery on a child under age fourteen. To establish an

attempt under the general attempt statute, G. L. c. 274, § 6,

the Commonwealth must prove "(1) the specific intent to commit

the substantive crime at issue, and (2) an overt act toward

completion of the substantive crime." Commonwealth v. LaBrie,

473 Mass. 754, 764 (2016). The "gap between the defendant's

actions and the (unachieved) . . . consummated crime . . . must
5

be relatively short . . . if the defendant is to be held guilty

of a criminal attempt." Commonwealth v. Hamel, 52 Mass. App.

Ct. 250, 258 (2001). At issue here are (1) whether the

defendant's actions, had they succeeded in causing the victim to

touch herself, would have constituted indecent assault and

battery or rape; and (2) whether there was sufficient evidence

of overt acts.2

Although both rape and indecent assault and battery require

proof of an intentional touching,3 neither crime requires that

the defendant himself perform the touching. See Commonwealth v.

Prado, 94 Mass. App. Ct. 253, 258 (1992), quoting Commonwealth

v. Guy, 24 Mass. App. Ct. 783, 786 (1987) ("no requirement that

the sexual contact involve penetration of the victim by the

perpetrator"). See also Commonwealth v. Nuby, 32 Mass. App. Ct.

2 The judge found, and the defendant does not contest in
this appeal, sufficient evidence before the grand jury of the
defendant's intent to cause the touchings.

3 "The elements of rape of a child are (1) sexual
intercourse or unnatural sexual intercourse with (2) a child
under sixteen years of age" (quotation and citation omitted).
Commonwealth v. Gonzales Santos, 100 Mass. App. Ct. 1, 2 (2021).
See G. L. c. 265, § 23. The child's inability to consent is
conclusively presumed. See Commonwealth v. Smith, 431 Mass.
417, 420 (2000). "The elements of indecent assault and battery
on a child under the age of fourteen are (1) the child was not
yet fourteen years old at the time of the offense, (2) the
defendant intentionally touched the child without legal
justification or excuse, and (3) the touching was indecent"
(quotation and citation omitted). Gonzales Santos, supra. See
G.L. c. 265 § 13B (child "shall be deemed incapable of
consenting").
6

360, 361-362 1992). Our cases recognize "the myriad ways by

which rape [or indecent assault and battery] is perpetrated,

even without physical contact by the defendant." Prado, supra.

See id. (victim's fingers inserted into her own vagina by

command of armed defendant satisfied physical contact

requirement for aggravated rape); Commonwealth v. Davidson, 68

Mass. App. Ct. 72, 74 (2007) (indecent assault and battery where

child victim, induced by defendant, touched his penis with her

hand and rubbed it with her nose); Nuby, 32 Mass. App. Ct. at

362 (defendant who forced victims "to fondle their mother's

breasts" guilty of indecent assault and battery and guilty of

forcible rape of a child where defendant forced one victim to

perform cunnilingus on the child's mother); Guy, 24 Mass. App.

Ct. at 785-786 (defendants who forced victim to perform

cunnilingus on two other women guilty of rape). In the context

of child sexual assault, evidence is sufficient if it shows that

the defendant induced the indecent touching. See Davidson, 68

Mass. App. Ct. at 75. See also Commonwealth v. Gonzales Santos,

100 Mass. App. Ct. 1, 2 (2021) ("A defendant who forces or

induces a child to touch the defendant's body in an indecent

manner satisfies the intentional touching element");

Commonwealth v. Holbrook, 86 Mass. App. Ct. 391, 395 (2014)

(sufficient that defendant "intended and permitted" child to

touch defendant's penis; no proof required that he "coerced,
7

cajoled, compelled, or created some incentive for the child to

act as she did"). We thus are unpersuaded by the defendant's

argument that some form of coercion is required before a

victim's act of touching herself may be attributed to a

defendant.

An overt act toward completion of the crimes does not

necessarily require that the defendant be within close physical

proximity of the victim. Cf. Commonwealth v. Hall, 80 Mass.

App. Ct. 317, 323 (2011) ("by means of modern digital and

telephonic technology, a defendant . . . need not be physically

present in order to achieve an intended purpose"). While

physical proximity is a factor to be considered, it is not

essential. Contrast Commonwealth v. Buswell, 468 Mass. 92, 98-

99 (2014) (no attempt where defendant arranged meeting place for

sexual encounter with undercover officer posing as thirteen-

year-old child but police intercepted defendant before he

arrived).

Here, evidence was presented to the grand jury on which it

could have found probable cause to believe that the defendant

exploited his daughter's loneliness, mental illness, and

desperation for affection to induce her actions. During one

telephone call when she was thirteen years old, the defendant

talked to the child about her diagnoses of serious mental

illness. The child told the defendant she was "lonely" and
8

expressed disbelief that anybody would love her. The defendant

told the child that he would love her "forever," and she told

him that she was "very vulnerable with [him]" and "loved [him]

so much." The defendant offered the hope of purported paternal

affection, companionship, and financial support, saying that he

would take her to see movies and buy her clothes after he left

the correctional institution. Cf. Commonwealth v. Armstrong, 73

Mass. App. Ct. 245, 255 (2008) (evidence of nonphysical

constructive force for child rape included "the historical and

contextual relationship between the victim and the defendant").

The defendant also repeatedly implied to the child that he

would stop speaking with her if she told anyone about their

calls, telling her she had to keep them a secret "like [her]

life depended on it." If the child did not keep the content of

their calls a secret, the defendant said, they would be

"finished." In order to keep the content of the calls their

secret, the two would often change the subject when the child's

grandmother was in the room and then continue speaking about sex

after she left. Additionally, the defendant worked to isolate

the child from her grandmother. The child expressed concern

that, once she and the defendant had sex, her doctor would know

and inform her grandmother, who would take away the child's cell

phone and video games. The defendant responded:
9

"I'm going to get you . . . anything you want . . . .
Listen, you're not going to worry about [your grandmother]
anymore. Pretty soon you're going to be swearing at her
like 'Fuck you, you bitch! . . . .' And eventually she's
gonna be so mad. She's gonna push you out. She's not even
gonna want you there no more. Then I'm gonna scoop you
up . . . ."

Unlike Buswell, 468 Mass. at 98, where the intended crime

involved sexual contact between the defendant and child, here

the completion of the crimes required that the child touch

herself. The sexualized and manipulative telephone calls

themselves were the overt acts that the defendant took toward

the completion of the sexual assaults. Such "grooming" has as

its ultimate goal "the formation of an emotional connection with

the child and a reduction of the child's inhibitions in order to

prepare the child for sexual activity." Commonwealth v.

McDonagh, 480 Mass. 131, 135 n.6 (2018), quoting Commonwealth v.

Christie, 89 Mass. App. Ct. 665, 673 n. 10 (2016). We disagree

with the defendant that "[the child] alone" controlled whether

any [touching] occurred." The evidence established probable

cause to believe that in addition to the sexualized and

manipulative telephone conversations, the defendant's promises

to involve himself in the child's life and serve as a purported

father figure in combination with his threats of re-abandonment

carried powerful emotional weight in inducing her to touch

herself. Cf. Commonwealth v. Carter, 474 Mass. 624, 634 (2016)

(defendant's relationship with victim may have caused verbal
10

communications to carry more weight than mere words). There was

evidence presented to the grand jury that it was only her

immediate circumstances while talking on the telephone (she was

"in the car in front of KFC") that prevented the child from

touching herself as directed by the defendant when she was

thirteen years old, and that she in fact put her fingers in her

vagina at the defendant's behest when she was fourteen years

old.4 We thus conclude that the defendant came sufficiently

close to realizing the target offenses to give rise to probable

cause that the defendant took an overt act toward completion of

the crimes. Here, "the gravity of the conduct rises to the

level which the[se] statute[s] [were] designed to prohibit."

Portonova, 69 Mass. App. Ct. at 906, quoting Davidson, 68 Mass.

App. Ct. at 74.

3. Attempted indecent assault and battery on a person

fourteen years of age or older. Indecent assault and battery on

a person fourteen years of age or older requires proof of the

victim's lack of consent. See Commonwealth v. Butler, 97 Mass.

App. Ct. 223, 232 (2020). "The element of lack of consent in a

prosecution for indecent assault and battery is the same as in a

prosecution for rape." Commonwealth v. St. Louis, 473 Mass.

As noted above, the victim later told prosecutors that she
4

did not put her fingers in her vagina. However, noncompletion
of a crime is not an element of attempt. See LaBrie, 473 Mass.
at 763-764.
11

350, 361 (2015). The lack of consent analysis is "based on the

totality of the circumstances." Commonwealth v. Shore, 65 Mass.

App. Ct. 430, 433 (2006). Proof of lack of consent does not

require "explicit verbal or physical rebuff." Id. The grand

jury may consider multiple factors, including the "considerable

age disparity between the defendant . . . and the victim . . . ,

and [the] obvious disparity in experience and sophistication."

Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 567 (2002).

The inquiry includes "the entire sequence of events and acts of

[the defendant] as it affected the victim's ability to resist."

Commonwealth v. Sherry, 386 Mass. 682, 688 (1982), overruled on

another ground by Commonwealth v. King, 445 Mass. 217 (2005).

Inherent in our conclusion that evidence of the defendant's

emotional manipulation of the child was sufficient for the grand

jury to find probable cause that he attempted to induce her

physical actions is that the child's behavior was not fully

volitional.5 Nevertheless, the defendant's use of the child's

5 Although each of the inducement cases cited earlier
involved indecent assault and battery on a child under fourteen,
the defendant suggests no reason why such inducement should not
also be sufficient to support a charge of indecent assault and
battery on a person fourteen or older. We therefore assume for
present purposes that such inducement would be sufficient for a
victim fourteen or older, provided of course that the
Commonwealth also proves lack of consent, or lack of capacity to
consent. Cf. St. Louis, 473 Mass. at 360-362 (where twenty-four
year old victim had intellectual disability, and ample evidence
showed lack of consent, her touching of defendant's penis was
attributable to defendant as indecent assault and battery).
12

body as his own physical instrument does not necessarily equate

to a lack of consent on her part. Proof of lack of consent

requires more than evidence of inducement or persuasion. Cf.

Suliveres v. Commonwealth, 449 Mass. 112, 115-118 (2007) (no

rape where consent to sex is obtained through inducement by

misrepresentation or fraud). Whether the sexual touching

directed by the defendant after the child turned fourteen, if

completed, would have been consensual is a question of fact.

See Commonwealth v. Blache, 450 Mass. 583, 597 (2009) ("lack of

consent was the principal . . . contested issue before the

jury"). See also Commonwealth v. Urban, 450 Mass. 608, 613-614

(2008) (where main contested issue was whether complainant

consented or was capable of consenting, consent was "central

factual question [for] the jury's consideration").

"In order to give consent a person must . . . have the

capacity to do so." Commonwealth v. Burke, 390 Mass. 480, 484

(1983). A physically incapacitated person may be deemed unable

to have consented to sexual contact. See Blache, 450 Mass. at

590. Likewise, a person with an intellectual disability may

have at least a diminished capacity to consent. See St. Louis,

473 Mass. at 361. Indeed, "[c]apacity to consent can be

affected by a number of different factors, including

intoxication, consumption of drugs, sleep, unconsciousness, head

injury, and intellectual disability." Id. at 361 n.16. We see
13

no principled reason why the same analysis would not apply to a

person's emotional or psychological capacity, at least where a

defendant was aware or reasonably should have been aware of that

person's circumstances. See Blache, supra at 594-595, 599.

Whether emotional or psychological factors result in incapacity

or inability to consent is a matter of degree that ultimately

must be determined by the factfinder at trial. Here we review

only whether there was probable cause to believe the child was

incapacitated to that extent.

On its surface, the evidence presented to the grand jury in

this case was that the child would have consented to the

defendant's suggestions that she sexually touch herself, but

there was also evidence that she lacked capacity to consent. In

Carter, the defendant was able to "overpower[] the victim’s

will" because the victim was a "vulnerable, confused, mentally

ill, eighteen year old." Carter, 481 Mass. at 363. Here,

evidence of lack of capacity to consent include the defendant's

age; the child's age; the parent-child relationship; the child's

sense of abandonment; the child's mental illness and emotional

vulnerability; the defendant's knowledge of the child's mental

illness and emotional vulnerability; the defendant's promises to

involve himself in the child's life and serve as a purported

father figure in combination with his threats of re-abandonment;

the defendant's efforts to sexually groom, manipulate, and
14

isolate the child; and the sexualized nature of the telephone

calls. Together, these were sufficient to support probable

cause that the child lacked the capacity to consent to the

sexual touching that is the basis for the indictment of

attempted indecent assault and battery on a person aged fourteen

or older and that the defendant was aware of her lack of

capacity.

The order allowing the defendant's motion to dismiss the

indictments for attempted rape of a child, attempted indecent

assault and battery on a child under fourteen, and attempted

indecent assault and battery on a person aged fourteen or older is

reversed and the indictments are to be reinstated.

So ordered.