Heard: November 6, 2018.
Indictments found and returned in the Superior Court
Department on December 11, 2014. The cases were tried before
Joshua I. Wall, J.
Supreme Judicial Court granted an application for direct
Crane for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Superior Court jury convicted the defendant of penile-vaginal
and digital-vaginal rape, implicitly rejecting the
defendant's testimony that all sexual intercourse between
him and the victim had been consensual. On appeal, the
defendant claims that the trial judge committed two
reversible errors. First, the defendant contends that, where
the deliberating jury asked the judge whether initially
consensual sexual intercourse could become rape if the victim
withdrew her consent after penetration, the judge erred by
failing to instruct the jury that a defendant may not be
found guilty of rape under such circumstances unless the
penetration continued after the victim communicated the
withdrawal of consent to the defendant. Second, the defendant
argues that, where there was no expert testimony regarding
the effect of cocaine on perception and memory, the judge
erred in admitting evidence of cocaine use for the purpose of
allowing the jury to assess the defendant's ability to
perceive and recall events. We conclude that the judge erred
in failing to provide the jury with an instruction regarding
the withdrawal of consent and in admitting cocaine evidence
for the purpose of assessing the defendant's memory, but
that, in the circumstances of this case, neither error
requires reversal of the defendant's convictions.
primary contested issue at trial was whether the victim had
consented to sexual intercourse with the defendant. The
victim and the defendant offered sharply differing accounts
of what happened in the early morning of October 14, 2014. We
summarize the evidence at trial.
victim testified that on the night of October 13, 2014, she
drank one beer with a female friend at a pub, and then went
with her friend to a second pub. The two arrived at the
second pub at some time between midnight and 12:15 A.M. Upon
arriving, the victim recognized one of her coworkers and the
bartender, and began speaking with them. The defendant, whom
the victim did not know, joined the conversation. The victim
and the defendant remained at the pub until approximately 1
A.M., when the pub closed. The victim drank one beer and one
shot at the second pub.
defendant, the victim, and others continued to talk outside
the pub after closing. The defendant asked the victim if she
wanted to "hang out." The victim agreed, but
explained to the defendant that it was "just going to be
us hanging out" because she was gay. The defendant said
that was fine, and the two exchanged telephone numbers before
victim and her friend then went to a restaurant, where the
victim received a text message from the defendant: "I
wanna c u 2nite make it happen." The victim texted back,
"Thats fine, but you just need to know that i like
girls." The defendant asked by text whether the victim
wanted him to get condoms. The victim replied by text,
"im down to chill but i like girls." After the
defendant texted, "K thats cool . . .," the victim
added, "Plus, not to sound gross but im on my period.
Lol." The defendant replied by text, "Its all
good." The victim then drove her friend home and
continued alone to the defendant's apartment, arriving
shortly before 2 A.M.
defendant came downstairs to meet the victim, and the two
went up to his apartment. Both the victim and the defendant
drank beer in the kitchen while discussing their shared
interest in music. The defendant then told the victim that he
wanted to show her a record in his bedroom. The victim
entered the defendant's bedroom, sat at the foot of the
bed, and began looking at the record. The defendant sat down
behind the victim and attempted to kiss her on the cheek. The
victim responded by putting her hand out and telling the
defendant that she was gay and that "it is not going
past just hanging out." The defendant apologized
multiple times, and then attempted to kiss the victim again.
Before she could tell him to stop, the defendant got on top
of the victim, put his knees on her thighs, and put his hands
on her shoulders. The victim testified that she felt
"terrified," that she "froze," and that
she was unable to fight back against the defendant.
defendant then pulled down the victim's pants and pulled
her shirt up to her neck. The victim told the defendant to
"stop" and to "get the fuck off me," and
the defendant asked why. When the victim responded that she
was gay, the defendant said "good" and vaginally
raped her with his penis. Intercourse was painful for the
victim, who was wearing a tampon, but the defendant
"kept going harder and faster." The defendant then
put his penis in the victim's mouth. When the victim
turned her head away, he inserted his fingers into her
vagina. The defendant then vaginally raped the victim with
his penis for a second time. The victim screamed
"stop" repeatedly and attempted to push the
defendant off her by moving her arms from side to side. The
defendant then got off the victim.
victim dressed rapidly, went into the bathroom, and then
collected her things to leave. The defendant told the victim
not to "worry about the blood," which the victim
observed on the defendant's bed, in the kitchen (located
between the bedroom and the bathroom), and on the defendant.
The defendant then offered to walk the victim to her vehicle.
The victim declined. Nevertheless, the defendant followed the
victim downstairs, held her vehicle's door open while she
tried to close it, and attempted to kiss her. The victim
pushed the defendant and drove away.
after leaving the defendant's apartment, the victim
called a friend from her vehicle. After five or six telephone
calls, her friend answered and the victim told her,
"I've been fucked. It just happened. I just got
raped." The friend testified that the victim was so
"distraught" and "hysterical" on the
telephone that it was initially difficult to understand her.
victim then drove to her parents' home, and they took her
to a hospital where a nurse conducted an evidence collection
examination. The nurse testified at trial that the victim
--who, the nurse reported, said that she had been
assaulted -- was "horrified, angry, upset,
[and] tearful." The nurse further testified that the
victim denied being in pain at that time, and that the nurse
observed no trauma to the victim's body.
around 4:45 A.M., the victim met with Salem police Detective
Eric Connolly at the hospital. Connolly testified that the
victim was "visibly upset" and crying. After
speaking with the victim, Connolly and two uniformed officers
went to the defendant's address. They arrived at
approximately 6 A.M., and the defendant let them into his
apartment. The officers asked the defendant whether he had
met anybody that night, and the defendant responded that he
had had sexual intercourse with a woman, but could not
remember her name. Then, while the officers were speaking
with him, the defendant lowered his shorts to reveal a
"reddish brown stain" resembling blood on his
underwear. The defendant also led the officers into his
bedroom to show them a bloodstain on his bed sheets. The
officers placed the defendant under arrest and transported
him to the Salem police department for booking. During
booking, Connolly observed that the defendant had "red
brownish stains" resembling blood on his left hand.
same day, officers obtained a warrant to search the
defendant's apartment. During their execution of the
warrant, officers discovered a paper plate with a spoon on it
on the defendant's kitchen counter. The spoon, which
appeared burnt, held a white powdery substance believed by
Connolly to be cocaine. Connolly observed more white powder
next to the plate. Officers also obtained a search warrant
for the defendant's cell phone, which led to extraction
of the text messages between the defendant and the victim.
October 20, the victim went to the Salem police department to
have photographs taken of bruises that had appeared on her