Commonwealth v. Oquendo
Commonwealth v. Oquendo
Opinion of the Court
After a jury trial in the Superior Court, the defendant, Junno Oquendo, was found guilty of rape, see G. L. c. 265, § 22(b), and two counts of indecent assault and battery on a person fourteen years of age or older, see G. L. c. 265, § 13H. He now appeals.
1. Background. Because the defendant challenges the sufficiency of the evidence, this court must view the evidence presented at trial in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Under that standard, the jury could have found the following facts.
Soon, feeling even worse, Jane ran outside and vomited. Vallejo followed her and suggested that they return to Matos’s apartment. Dizzy and nauseated, Jane agreed, and the defendant rode next to her in the back seat of Matos’s car. The group left the club at approximately midnight. Jane did not remember the car ride, but did recall that she vomited again as she got out of the vehicle and a third time near the front porch outside the apartment.
Once inside the apartment, Jane went directly to the bathroom without removing her coat. She stood bent over the toilet, holding onto the tank and throwing up into the bowl. At first, Vallejo, Matos, and the defendant were at the doorway to the bathroom. At some point, the others left and the defendant entered. He stood behind Jane. Initially he rubbed Jane’s back, but then he put his hand under her coat and shirt, and grabbed her breast underneath her bra. She told him “no” and asked what he was doing. He removed his hand but did not leave the room.
The defendant continued to stand behind her. With Jane still leaning over the toilet, the defendant reached to unfasten the button on her pants. She again made clear that the defendant’s advances were unwelcome: she asked what he was doing, shook her head, and said “no.” As before, he removed his hand but did not leave the room. A short time later, he pulled her jeans and underwear down to her knees. For a third time, Jane said “no.”
The defendant inserted his penis into her vagina. Jane said “no” as he did so, and she began to cry from the pain. She felt so sick and dazed that she could not move or turn around. After
The defendant then reentered the bathroom, shut the door, and pulled down Jane’s jeans once more. Jane was crying and shaking her head. He penetrated her vagina again with his penis. Unable to support herself, Jane fell to the floor and came to rest on her side. The defendant then turned her over onto her back and pulled her pants down to her ankles. He continued to penetrate her, and his movements caused her head to repeatedly hit the wall. Jane screamed “no” and was crying uncontrollably. The defendant asked her several times why she was crying, but she could not answer.
When the defendant stopped, he sat Jane on the toilet. He lifted up her shirt and bra and began kissing her breasts. She told him not to touch her and pushed him away. After she similarly rebuffed a further advance, the defendant laughed and left.
Jane fell asleep on the living room couch and woke up at 3:00 or 4:00 a.m. She then roused Matos and requested a ride home. She told Matos that the defendant had raped her, and she called the police from the car. Officers met her at her home. They took her statement and transported her to the hospital, where she continued to vomit. A urine sample obtained that morning from Jane was tested for alcohol and a number of drugs, including two well-known “date-rape” drugs, but nothing was found.
2. Discussion. On appeal, the defendant makes two arguments. First, he contends that the Commonwealth presented insufficient evidence to support the rape conviction and that his motions for a required finding of not guilty thus were improperly denied. Second, he asserts that the trial judge failed to consider mitigating factors at his sentencing and improperly punished him for conduct that could not have formed the basis for the jury’s verdict.
a. Sufficiency of the evidence. We review the denial of the defendant’s motions for a required finding of not guilty to determine 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
The defendant’s claim is unavailing. The defendant was able to rape Jane only after forcibly pulling down her pants. After she collapsed, he physically turned her over onto her back, without her cooperation, in order to continue raping her. During the assault, the defendant caused Jane’s head to repeatedly strike the wall. This evidence amply supports the jury’s conclusion that the intercourse was compelled by force. Cf. Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 314 (2008) (finding sufficient evidence of force where the defendant “nudged” the victim onto the floor, lay on top of her, and removed multiple layers of clothing without the victim’s assistance, and where the victim cried and told him “no”).
The jury in this case were instructed that they could convict the defendant of rape if the intercourse was accomplished by force or by threat of bodily injury, and they returned a general verdict. The defendant’s second argument is that force and threat of bodily injury are two different theories of liability, and that, in the face of a general verdict of guilty, he must receive a new trial because the prosecution presented no evidence of any threat of bodily injury.
To be sure, it is our general mie that when a jury are instructed on two different theories of guilt and return a general verdict, there must be a new trial if the evidence could permit the jury to convict the defendant under only one theory. See Commonwealth v. Plunkett, 422 Mass. 634, 637-639 (1996) (holding that a new trial was required when the jury were instructed on both premeditated murder and felony-murder but the evidence could support only felony-murder).
The defendant correctly notes that in Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 537 (2006), we did in a rape case describe force and threat of bodily injury as distinct “theories” that required specific unanimity. Nonetheless, we upheld the conviction there, and the defendant does not point to any decision in which a conviction was reversed on the basis of a failure to demonstrate specific unanimity with respect to force or threat of bodily injury. In any event, Ewing was decided before the Supreme Judicial Court handed down its opinion in Blache, and we believe our conclusion today is consistent with the Supreme Judicial Court’s recent teaching in this area, which emphasizes
b. Sentence. This court may review a sentence only to determine whether it is illegal or unconstitutional. Commonwealth v. Grimshaw, 412 Mass. 505, 513 (1992). The defendant urges that the sentence was improper because the trial judge “ignored” the mitigating factors defendant’s counsel presented at the sentencing and improperly punished the defendant for conduct other than that for which he was convicted.
The defendant’s attorney introduced several mitigating factors at the sentencing hearing: that the defendant was an involved parent; that he was gainfully employed; that he willingly gave a statement to police; and that he was pleasant and considerate to his own attorney. There is no evidence that these factors were ignored. In fact, to the contrary, there is evidence they were taken into account. Before announcing the sentence, the judge commented to the defendant, “I am sure that [defense counsel] is correct that you’re a polite, pleasant person most of the time.” Furthermore, the judge handed down a lesser sentence than the prosecutor requested. A defendant may at sentencing introduce mitigating factors, but ultimately “the judge must decide what weight to give to the proffered information.” Commonwealth v. Jones, 71 Mass. App. Ct. 568, 574 (2008). The defendant has not demonstrated that the judge abused his discretion or committed other error of law by failing to take account of what mitigation was placed before him.
The record, however, belies the defendant’s claim. At sentencing the judge, among other things, referred to the defendant’s decision to rape a woman who was “almost incapacitated.” The judge did not state that Jane was unable to consent. The evidence clearly showed that she was quite ill and consequently had a diminished physical capacity to fend off the defendant’s attack. There was no error by the judge in considering this aspect of the crime in his evaluation of all the evidence and his determination at sentencing of the appropriate punishment. See, e.g., Commonwealth v. Morse, 402 Mass. 735, 740 (1988).
Judgments affirmed.
A pseudonym.
There is “an exception to this general principle where it is apparent that the jury reached its general verdict necessarily and unavoidably on the theory for which there was evidentiary support.” Plunkett, 422 Mass. at 638.
Reference
- Full Case Name
- Commonwealth v. Junno Oquendo
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