Commonwealth v. Daudah Mayanja.

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

22-P-524

COMMONWEALTH

vs.

DAUDAH MAYANJA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of two counts

of rape. On appeal the defendant argues that the trial judge

erred by failing to instruct the jury on the meaning of

constructive force and that the evidence was insufficient to

show that he used constructive force to accomplish the rapes.

While we conclude that the evidence was sufficient, we agree

with the defendant that the judge's failure to define

constructive force created a substantial risk of a miscarriage

of justice, entitling him to a new trial. We therefore vacate

the convictions.

Background. We summarize the evidence in the light most

favorable to the Commonwealth. In March 2019 the victim
celebrated her twenty-first birthday. She and her friend Rhonda1

left their apartment in Brighton around noon and spent the rest

of the day shopping and dining at various restaurants and bars.

The victim smoked "a little bit" of marijuana and had several

alcoholic drinks throughout the afternoon and evening. Around

10 or 10:30 P.M., the two women went with some other friends to

a restaurant in Somerville, where the victim had one drink and

appetizers. Shortly after midnight, the victim decided to

return to her apartment to meet her boyfriend. Rhonda wanted to

stay out, so the victim ordered a car using the Uber ride-

sharing application. At that point the victim was not very

intoxicated because she had been eating food while drinking.

When the car arrived, the victim confirmed that its

appearance and that of the driver, later identified as the

defendant, matched the information shown in the Uber application

on her phone. The victim then entered the backseat of the car,

and the trip began at 12:21 A.M. Not long after, the victim

asked to move to the front seat because she felt carsick. The

defendant pulled over so that the victim could change seats,

and, once she was in the front seat with a seatbelt on, they

began to talk. The defendant asked the victim if she had any

marijuana with her. She replied that she did not and asked the

1 A pseudonym.

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defendant if he ever smoked while driving for Uber. He said

yes, and "then [they] just kept talking." At some point the

defendant learned that it was the victim's birthday.

The defendant started to flirt with the victim and put his

right hand on her shoulder while driving down Storrow Drive.

The defendant told the victim that she was "beautiful" and

"pretty" and that "this is how [she] should celebrate [her]

birthday." He moved his hand down the victim's arm, onto her

thigh, and then to the belt on her pants. The victim "was

frozen" and "did nothing" and "said nothing." After undoing the

victim's belt, the defendant put his hand inside her pants and

underwear and inserted one finger into her vagina. He continued

to talk, but the victim could not focus on what he was saying

because she was "scared." The victim "stayed quiet" and felt

that "[t]here was nowhere to go or nothing to do."

As the car approached the Hatch Memorial Shell on Storrow

Drive, the defendant removed his finger so that he could pull

over and park. The defendant stated, "[W]e're going to pull

over here. Nobody has to know." Once parked in a "pretty dark"

area, the defendant reinserted his finger into the victim's

vagina.

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At this point, now 12:37 A.M., the victim received a phone

call from Rhonda's boyfriend, Seth.2 The victim told the

defendant, "[H]ang on, my friend's calling me. I'm going to

step outside and take this. I'm sure he just wants to wish me a

happy birthday." The victim opened the car door, grabbed her

purse, and started running toward the river while on the phone

with Seth. She told Seth that her Uber driver tried to rape her

and kept running until she slipped and fell. A passerby, who

saw the victim fall, stayed with her until Seth arrived at 12:49

A.M. The defendant's car pulled out of the area around the same

time that Seth's car pulled in. When the victim got into Seth's

car, she was crying and "in shock," and Seth perceived that she

was "absolutely distraught."

Seth drove the victim to a police station where she

reported what happened. While the victim was speaking with

police, she received a phone notification from Uber that she had

left a bag in the defendant's car. The police then called the

defendant through the Uber application on the victim's phone and

asked him to come to the station, which he did. After being

advised of his Miranda rights, the defendant agreed to

participate in a recorded interview. The defendant stated

during the interview that the victim was "acting weird" and

2 A pseudonym.

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became "agitated" when he told her not to smoke in his car; the

defendant parked the car "for safety," and the victim ran away.

The defendant denied touching the victim, stating it was "a

hundred percent against [Uber] policies" to touch a passenger.

Discussion. 1. Jury instruction. To establish the crime

of rape, the Commonwealth must "prove beyond a reasonable doubt

that the defendant committed (1) sexual intercourse (2) by force

or threat of force and against the will of the victim."

Commonwealth v. Lopez, 433 Mass. 722, 726 (2001). See G. L.

c. 265, § 22 (b). This second element "has been interpreted 'as

truly encompassing two separate elements': force or threats,

and lack of consent." Commonwealth v. Sherman, 481 Mass. 464,

471 (2019), quoting Lopez, supra at 727. To establish "force or

threats," the Commonwealth must prove in turn "that the

defendant committed sexual intercourse . . . by means of

physical force; nonphysical, constructive force; or threats of

bodily harm, either explicit or implicit" (citations omitted).

Lopez, supra at 727.

As the parties agree, to sustain the convictions here, the

Commonwealth had to show that the defendant committed sexual

intercourse by means of constructive force, as there was no

evidence that he used physical force or made threats of bodily

harm. At trial the judge correctly instructed the jury that

"[t]he force needed for rape may, depending on the

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circumstances, be constructive force as well as physical force,

violence or threat of bodily harm." After then explaining that

the Commonwealth must also prove that the victim did not

consent, the judge instructed the jury as follows:

"If a person submits because of fear, it is not consent.
The person must be free to exercise her will without
restraint. You may consider evidence of the complainant's
state of mind at the time of the alleged incident on the
issue of consent."

"The complainant is not required to use physical force to
resist. However, you may consider evidence of any attempt
to restrain or confine the complainant [or] violence by the
defendant or of struggle or outcry by the complainant on
the issues of force and consent."

"However, lack of such evidence does not necessarily imply
consent or the absence of force because in certain
circumstances physical resistance may not be possible."

"You may consider all of the circumstances and the entire
sequence of events in determining whether the intercourse
was without the complainant's consent and her ability to
resist."

This was the totality of the instruction on the second element

of rape. Although the defendant did not object to it at trial,

he now argues that the judge erred by failing to define

constructive force and that this failure created a substantial

risk of a miscarriage of justice. On the facts of this case,

and given the theory argued by the Commonwealth, we agree.

A trial judge has the obligation "to instruct the jury on

all aspects of pertinent law applicable to issues raised in the

case," which includes explaining "technical terms where their

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meaning is obscure and there is a possibility of confusion."

Commonwealth v. Allen, 54 Mass. App. Ct. 719, 724 (2002). The

instruction here was defective because it left the jury to

speculate on the meaning of constructive force, a "technical

matter[] with which lay[people] cannot be expected to be

familiar." Commonwealth v. White, 353 Mass. 409, 425 (1967).

Without a definition of constructive force, the instruction

"fell short of providing a comprehensible standard to guide" the

jury in determining whether the Commonwealth had satisfied its

burden of proof. Id. See Commonwealth v. Niziolek, 380 Mass.

513, 527 (1980) (judge erred by failing to define "malice," an

element of crime of arson, and instead instructing jury to apply

its "ordinary meaning in criminal law"); White, supra

(instruction "defective in failing to define the respective

elements of robbery and breaking and entering," where

distinction determinative as to degree of murder); Allen, supra

(judge erred by failing to define "telecommunication services"

and instead instructing jury to rely on their "own common sense

and experiences of life"); Commonwealth v. Walter, 40 Mass. App.

Ct. 907, 909 (1996) (judge erred by failing to define "felony,"

as used in context of "intent to commit a felony," an element of

crime charged).

We do not agree with the Commonwealth's assertion that the

judge adequately conveyed the meaning of constructive force by

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telling the jury that they could "consider evidence of any

attempt to restrain or confine the complainant . . . on the

issues of force and consent." Constructive force requires proof

that the defendant committed the sexual intercourse by means of

words or conduct that created an intimidating environment or

instilled fear in the victim, with the "ultimate question" being

"whether 'the defendant compelled the victim to submit.'"

Commonwealth v. Testa, 102 Mass. App. Ct. 149, 152 (2023),

quoting Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 194

(2013). See Commonwealth v. Caracciola, 409 Mass. 648, 655 n.10

(1991) (constructive force established by evidence "that the

intercourse resulted from the coercive atmosphere and fear of

the complainant as a result of the words and conduct of the

defendant"); Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 521

(2011) ("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" [quotation and

citation omitted]). That the jury were told they could

"consider evidence of any attempt to restrain or confine the

complainant" (even assuming the evidence could be interpreted in

that way) was inadequate to convey these principles.3

3 By comparison, the Superior Court model jury instruction on
constructive force provides:

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We thus turn to whether the deficiency in the instruction

created a substantial risk of a miscarriage of justice, the

standard applicable to unpreserved errors in noncapital cases.

See Commonwealth v. Desiderio, 491 Mass. 809, 815-816 (2023).

"The substantial risk standard requires us to determine if we

have a serious doubt whether the result of the trial might have

been different had the error not been made" (quotation and

citation omitted). Id. To decide this question, we are guided

by the four-factor formulation set out in Commonwealth v.

Alphas, 430 Mass. 8, 13 (1999). See Desiderio, supra at 816,

820.

Because the case turned on whether the defendant

accomplished the rapes by constructive force, we conclude that

the incomplete instruction gave rise to a substantial risk of a

miscarriage of justice. "The jury could not determine, without

"Constructive force may be by threatening words or gestures
and operates on the mind to instill fear in [the
complainant] in order for the defendant to achieve his
goal. There must be proof that [the complainant] was
afraid or that [the complainant] submitted to the defendant
because his conduct intimidated her."

"You may consider all of the circumstances, including the
respective age and size of the parties, and the overall
relationship between the parties, including whether the
defendant was an authority figure in determining whether
the rape was by force and against [the complainant's]
will."

Massachusetts Superior Court Criminal Practice Jury Instruction
§ 3.1.1 (a) (Mass. Continuing Legal Educ. 2018).

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knowing what [force] meant in the context of this case, whether

the Commonwealth had carried its burden of establishing the

existence of this element beyond a reasonable doubt." Niziolek,

380 Mass. at 527. See Allen, 54 Mass. App. Ct. at 725

(instruction created substantial risk of miscarriage of justice

where it did not adequately define element of crime, leaving

jury to speculate as to whether Commonwealth met burden of

proof); Walter, 40 Mass. App. Ct. at 910 (similar). As the

defendant points out, the instruction created the risk, among

others, that the jury would impermissibly find the force element

to be satisfied based solely on the fact that force was needed

to accomplish the penetration. See Lopez, 433 Mass. at 728

(unless victim incapable of consent, force necessary for rape

must be more than that inherent in act of penetration).

Furthermore, as discussed below, while the Commonwealth's

evidence of constructive force was sufficient, it was not

strong. We therefore conclude that the error may have

materially influenced the jury's verdict, requiring that the

convictions be vacated.

2. Sufficiency. We address the defendant's challenge to

the sufficiency of the evidence of constructive force for

purposes of determining whether he can be retried. While a

close question, we conclude that a rational juror viewing the

evidence in the light most favorable to the Commonwealth could

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have found sufficient proof of constructive force. See

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

As we have stated, constructive force exists when the

defendant's words or conduct creates an intimidating environment

or instills fear in the victim, compelling the victim to submit.

A jury is therefore to examine "the circumstances or fear in

which the victim is placed" and "the impact of those

circumstances or fear on the victim's power to resist."

Caracciola, 409 Mass. at 651. Relevant circumstances may

include (1) any threatening words or conduct, which need not be

of a "direct and immediate nature," Commonwealth v. Dumas, 83

Mass. App. Ct. 536, 539 (2013); (2) whether the defendant was in

a position of authority or had control over the victim, see

Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 417-418 (2010);

(3) any age or size difference between the defendant and victim,

see Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255

(2008); and (4) the "manner and means by which the rape [was]

perpetrated," id. Cf. Commonwealth v. Feijoo, 419 Mass. 486,

493 (1995) (rape was "without warning and therefore without [the

victim's] having had an opportunity to consent or object").

Here, had the jury been properly instructed, we believe

they could have found proof of constructive force beyond a

reasonable doubt. The victim was alone with the defendant, a

male Uber driver she had met only minutes earlier and whom she

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hired for the sole purpose of driving her from one place to

another. It was nighttime, and the defendant was in control of

the car. When the defendant moved his hand toward the victim's

belt, she became "frozen" but "did nothing" and "said nothing";

she did not "attempt to push him away" because she "thought the

belt and the seatbelt would have been enough." When the

defendant nevertheless continued, undoing her belt and putting

his hand inside her pants, the victim "stayed quiet" because

"[t]here was nowhere to go or nothing to do." She later told

the jury that the reason she did not get out of the car when the

defendant put his finger inside her was that "[t]he car was

. . . driving on Storrow Drive probably over [sixty] miles per

hour and [she] had nowhere to go." The defendant then drove to

a dark area off the road and penetrated the victim a second

time.

Based on these facts, and where the victim testified that

she was "scared," a rational juror could have found that the

victim submitted to the defendant because "she was fearful of

what would happen if she did not." Commonwealth v. Vasquez, 462

Mass. 827, 846 (2012). It would have been rational to infer,

among other possible inferences, that the victim feared she

would be seriously injured if she tried to get out of the moving

car. The jury could have found that the defendant's escalating

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acts of touching her under these circumstances were what created

that fear and caused her to submit.

We are unpersuaded by the defendant's contention that the

victim's failure to resist or object to his conduct required the

jury to find that he did not use force. The victim's lack of

response "could have been interpreted by the jury as supporting

a finding that [she] was indeed fearful." Vasquez, 462 Mass. at

847. In fact, the victim testified that she "was frozen."

Drawing on their own experiences, the jury could have found that

the victim would not have expected her Uber driver to engage in

physical contact and that she did not respond to the defendant's

touching her because of the intimidating environment he created

by assaulting her when she had no safe means of escape.

The defendant is also not helped by pointing to the absence

of evidence that he threatened the victim, tried to take her

cell phone, or tried to prevent her from leaving the car. The

question is whether the evidence presented at trial permitted

the jury to find that the defendant intimidated or instilled

fear in the victim, compelling her to submit. We conclude that

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the evidence supported such a finding, leaving the Commonwealth

free to retry the defendant if it so chooses.

Judgments vacated.

Verdicts set aside.

By the Court (Sacks, Shin &
D'Angelo, JJ.4),

Clerk

Entered: August 10, 2023.

4 The panelists are listed in order of seniority.

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