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Commonwealth v. Lewis

Appeals Court of Massachusetts, Essex

June 7, 2017


          Heard: December 12, 2016.

         Indictments found and returned in the Superior Court Department on September 5, 2013.

         The cases were tried before Joshua I. Wall, J.

          James P. Vander Salm for the defendant.

          Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

          Present: Hanlon, Carhart, & Neyman, JJ. [1]

          HANLON, J.

         After a jury trial, the defendant was convicted of four counts of rape, in violation of G. L. c. 265, § 22(b), and one count of assault and battery in violation of G. L. c. 265, § 13A.[2] He appeals, arguing that his convictions should be reversed because evidence was admitted improperly in violation of the first complaint doctrine. See Mass. G. Evid. § 413 (2017). This error, he argues, combined with what he describes as inadequate limiting instructions, resulted in prejudicial error. For the reasons that follow, we affirm.


         The jury could have found the following facts. In September, 2012, the victim met the defendant at a "club" in Lawrence; they had a "whirl wind romance really. He said all the right things, and [she] fell in love with him within a week." A little more than a month into the relationship, however, things began to change. The defendant began to drink heavily, and, when he was drinking, he became rude and mean to the victim, as well as controlling -- particularly in public.[3]The victim would sometimes not see the defendant for days at a time when he was drinking; he would "basically disappear" and she would "end up having to find him." During this time, the victim was living in North Andover with her three children, and the defendant was living on a friend's couch. Despite the defendant's behavior when he was drinking, their relationship continued because, according to the victim, she was in love with him and he did not behave that way all the time.

         a. January 1, 2013, rape.

         By New Year's Eve, 2012, the relationship between the victim and the defendant was "rocky, " but they had made plans to go out and celebrate that evening. The victim picked up the defendant from work at approximately 4:00 P..M. and left him at his friend's house to shower and dress. Afterwards, she was unable to get in touch with him during the rest of the evening; she believed that he had turned his cellular telephone off because the calls went directly to voice mail. Eventually, at approximately 1:00 A.M. on January 1, she found him at his sister's house in Haverhill, sitting on the porch.

         The victim was upset and angry, and the "clearly drunk" defendant apologized and told her that his telephone had died. He invited her into the house to talk and, when they went inside, no one appeared to be home. They went into his mother's bedroom and the victim was "crying still."[4] The defendant then pulled down his pants and instructed the victim to "lick his ass, " saying that, if she would not do it, he would find someone else. The victim testified that nothing like that had happened before in their relationship and she told him "to go ahead and find somebody else."

         She stood up to walk out the door and the defendant grabbed her, pulled her underwear and pantyhose down, turned her around and threw her to the ground face down. He shoved her face into the carpet and put his penis into her vagina. The victim told him to stop, that she could not breathe, and that he was hurting her. The defendant responded that she was his and he would do whatever he wanted. After ejaculating inside of her, the defendant fell asleep on his mother's bed. The victim eventually fell asleep at the end of the bed still crying.[5] The next day, the victim saw on the defendant's cellular telephone that he had been conversing with another woman the previous night when he was supposed to be out with her; she then ended the relationship. The victim did not report the rape to the police at that time because she "didn't really think anything at the time of it. [They] had had rough sex before." She testified, "It just didn't -- I don't know. Nothing really clicked at the time."

         b. July 8, 2013, rape.

         In February, 2013, the victim and the defendant resumed their relationship.[6] On May 1, 2013, they moved together into an apartment in Haverhill; the victim's two youngest children moved in with them full time by July, 2013. Shortly thereafter, the defendant began going out frequently and coming home drunk early the next morning. During the evening of July 7, 2013, the victim telephoned the defendant and sent text messages to him, but she received no response; she then sent him a text message telling him not to come home because she was tired of his behavior -- specifically, going out every night. The defendant responded that he would leave when he was ready.

         In the early morning hours of July 8, 2013, while the victim and her daughters were sleeping, the defendant came home drunk and attempted to get into the bed with the victim. As she was trying to push him out, the defendant slapped her in the face, and she slapped him back. The defendant then straddled her, sitting on her stomach, pinning her arms down with his knees, and "started hitting [her] over and over and over again" in the face, calling her a "slut, " and saying that she "deserved it." The victim was crying and telling the defendant to stop; at some point, she was able to get her hand free and scratch him. The defendant then flipped her onto her stomach and put his penis in her vagina; he was holding the victim's hands above her head with one hand, with his other hand around her neck. While he was raping the victim, the defendant was telling her that, if she did not say she liked this treatment, he would hit her again. The victim did not report the incident to the police at that time because, she testified, she loved him and "probably would have tried to work anything out with him. And . . . [she] wanted to see if when he sobered up, it was different."

         c. July 11, 2013, rapes.

         A few nights later, the defendant was out all night and came home at 6:00 A.M. with his friend Adrian. They were both drunk, and Adrian slept on the living room couch. In response to the defendant's demand, the victim got Adrian a blanket and pillow, and then went back into their bedroom where she had been asleep. The defendant came into the bedroom where the victim was sitting on the edge of the bed; he then forced his penis into her mouth, pushing the back of her head forward and up and down with his hands. The victim was able to pull away, and then ran to the bathroom and vomited.

         When the victim returned to the bedroom, the defendant told her to take off her clothes. She told him that she did not feel well; he responded that if she did not do so, he would. In response, she began, hesitantly, to remove her top, but the defendant became impatient and grabbed the victim. He pulled off her pants so that she was lying "sideways" on the bed; he then put his penis into her vagina while keeping one hand around her neck. Afterwards, the defendant went out to the living room and fell asleep on the other couch. The victim did not at that time call the police because she "didn't look at it as rape still at that point."

         Later that morning when the defendant woke up, the victim told him to pay her his half of the rent and to move out. The defendant started to put his clothes in a laundry basket to take with him; the victim sat in the basket so that he could not take his belongings until he paid her. Instead, the defendant threw the basket, with the victim in it, across the room causing the victim to hit her head on the door frame and her knee on the wall. They continued to argue, and the defendant called the police, saying, according to the victim's testimony, that "[i]t's going to be so funny watching you get taken away from your kids, I'm going to sit there and smile and laugh as you're being ...

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