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
24-P-1046
COMMONWEALTH
vs.
HECTOR ROSS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant,
Hector Ross, was convicted of rape in violation of G. L. c. 265,
§ 22 (b). The judge sentenced him to a State prison term of
four years to four years and one day. The defendant filed a
motion to stay the execution of his sentence with the trial
judge, and upon denial of that motion, with a single justice of
this court. The single justice, reviewing the motion de novo,
denied it. She concluded that the defendant had not
demonstrated a likelihood of success on appeal and that, were
the sentence to be stayed, the defendant posed a security risk
and a potential danger to the community. The defendant timely
appealed. We affirm. 1. Standard of review. We review the single justice's
denial of the defendant's motion to stay for error of law or
abuse of discretion. See Commonwealth v. Nash, 486 Mass. 394,
412 (2020). "An abuse of discretion occurs when a judge makes a
clear error in weighing the relevant factors such that the
decision 'falls outside the range of reasonable alternatives.'"
Commonwealth v. Kalila, 493 Mass. 636, 641 (2024), quoting L.L.
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In deciding a
request for a stay, a judge must consider (1) the defendant's
likelihood of success on appeal and (2) security considerations
such as "the possibility of flight to avoid punishment;
potential danger to any other person or to the community; and
the likelihood of further criminal acts during the pendency of
the appeal." Nash, supra at 405, quoting Commonwealth v. Hodge,
380 Mass. 851, 855 (1980). The defendant bears the burden of
proving both factors by a preponderance of the evidence. See
Kalila, 493 Mass. at 642.
2. Likelihood of success on appeal. To satisfy the first
factor, the defendant was required to show that his claims were
appealable issues "worthy of presentation to an appellate court
[and] which offer[ed] some reasonable possibility of a
successful decision in the appeal" (citation omitted). Nash,
486 Mass. at 403. "To establish a reasonable possibility of
success, a defendant need not prove that his success on appeal
2 is certain or even more likely than not" (quotation and citation
omitted). Kalila, 493 Mass. at 642. Rather, the first factor
requires answering the question of whether the defendant has
proved the existence of at least one appellate issue with
"sufficient heft" that would provide an appellate court "pause."
Id., quoting Nash, supra at 404.
The defendant argues that he is likely to succeed on appeal
on claims that the evidence presented at trial was insufficient
to prove penetration and lack of consent. To obtain a
conviction of rape under G. L. c. 265, § 22 (b), "the
Commonwealth must prove two elements beyond a reasonable doubt:
first, that there was sexual intercourse between the defendant
and the victim; and second, that the defendant compelled the
victim to submit to the intercourse by force or threat of force
and against the will of the victim" (quotation and citation
omitted). Commonwealth v. Sherman, 481 Mass. 464, 471 (2019).
"In situations where a victim lacks the capacity to consent, the
Commonwealth has no obligation to prove the use of force by the
defendant beyond what is required for the act of penetration"
(quotation and citation omitted). Commonwealth v. Gibson, 488
Mass. 854, 857 (2022). "To satisfy the lack of consent element
in a typical case, the Commonwealth must prove that 'at the time
of penetration, there was no consent.'" Sherman, supra, quoting
Commonwealth v. Lopez, 433 Mass. 722, 727 (2001). The single
3 justice concluded that the defendant had not presented any
appellate issues of the necessary "heft." We agree.
a. Penetration. The defendant argues that "no reasonable
juror could find that the [defendant] penetrated the victim"
because "the evidence is woefully lacking in this case." As the
single justice observed, however, viewed in the light most
favorable to the Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 677 (1979), the evidence showed that the defendant
interacted with the victim on the night in question, that the
victim found herself within a short distance of the defendant's
mother's home with no memory of getting there, that the victim
experienced vaginal soreness, and that the defendant's DNA was
present in the victim's underwear. See Commonwealth v. Pena, 96
Mass. App. Ct. 655, 661-662 (2019), quoting Commonwealth v.
Fowler, 431 Mass. 30, 33 (2000) ("direct evidence of skin-to-
skin contact is not required; '[p]enetration can be inferred
from circumstantial evidence'"). Contrary to the defendant's
argument, the fact that other DNA profiles were also found in
the victim's underwear would not preclude a jury from inferring
that the defendant engaged in sexual activities with the victim.
See Commonwealth v. Goddard, 476 Mass. 443, 449 (2017), quoting
Commonwealth v. Jones, 432 Mass. 623, 628 (2000) (inferences
drawn from such evidence "need not be necessary and inescapable,
only reasonable and possible"). We agree with the single
4 justice that the jury could have readily inferred that the
defendant penetrated the victim's vagina, and that the defendant
is unlikely to succeed on this claim. See Commonwealth v.
Fowler, 431 Mass. 30, 33 (2000) ("Reasonable and possible
inferences may be drawn from largely circumstantial evidence").
b. Lack of consent. The single justice similarly
concluded that the defendant had little likelihood of succeeding
on his claim that the evidence was insufficient to prove the
victim's incapacity to consent. We are not persuaded by the
defendant's argument that the evidence against him was not as
strong as that found sufficient in other cases. See
Commonwealth v. Chilcoff, 103 Mass. App. Ct. 48, 55 (2023) ("The
issue is whether the evidence here met the Latimore standard,
not whether it was as strong as in other cases"). The victim
testified that she attended a concert at a nightclub in Boston
with two friends. The defendant admitted he had also attended
concerts at the same nightclub, although he could not remember
the last time he had been there. After having a few drinks at
the club, the victim went to the bathroom. She remembered
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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
24-P-1046
COMMONWEALTH
vs.
HECTOR ROSS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant,
Hector Ross, was convicted of rape in violation of G. L. c. 265,
§ 22 (b). The judge sentenced him to a State prison term of
four years to four years and one day. The defendant filed a
motion to stay the execution of his sentence with the trial
judge, and upon denial of that motion, with a single justice of
this court. The single justice, reviewing the motion de novo,
denied it. She concluded that the defendant had not
demonstrated a likelihood of success on appeal and that, were
the sentence to be stayed, the defendant posed a security risk
and a potential danger to the community. The defendant timely
appealed. We affirm. 1. Standard of review. We review the single justice's
denial of the defendant's motion to stay for error of law or
abuse of discretion. See Commonwealth v. Nash, 486 Mass. 394,
412 (2020). "An abuse of discretion occurs when a judge makes a
clear error in weighing the relevant factors such that the
decision 'falls outside the range of reasonable alternatives.'"
Commonwealth v. Kalila, 493 Mass. 636, 641 (2024), quoting L.L.
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In deciding a
request for a stay, a judge must consider (1) the defendant's
likelihood of success on appeal and (2) security considerations
such as "the possibility of flight to avoid punishment;
potential danger to any other person or to the community; and
the likelihood of further criminal acts during the pendency of
the appeal." Nash, supra at 405, quoting Commonwealth v. Hodge,
380 Mass. 851, 855 (1980). The defendant bears the burden of
proving both factors by a preponderance of the evidence. See
Kalila, 493 Mass. at 642.
2. Likelihood of success on appeal. To satisfy the first
factor, the defendant was required to show that his claims were
appealable issues "worthy of presentation to an appellate court
[and] which offer[ed] some reasonable possibility of a
successful decision in the appeal" (citation omitted). Nash,
486 Mass. at 403. "To establish a reasonable possibility of
success, a defendant need not prove that his success on appeal
2 is certain or even more likely than not" (quotation and citation
omitted). Kalila, 493 Mass. at 642. Rather, the first factor
requires answering the question of whether the defendant has
proved the existence of at least one appellate issue with
"sufficient heft" that would provide an appellate court "pause."
Id., quoting Nash, supra at 404.
The defendant argues that he is likely to succeed on appeal
on claims that the evidence presented at trial was insufficient
to prove penetration and lack of consent. To obtain a
conviction of rape under G. L. c. 265, § 22 (b), "the
Commonwealth must prove two elements beyond a reasonable doubt:
first, that there was sexual intercourse between the defendant
and the victim; and second, that the defendant compelled the
victim to submit to the intercourse by force or threat of force
and against the will of the victim" (quotation and citation
omitted). Commonwealth v. Sherman, 481 Mass. 464, 471 (2019).
"In situations where a victim lacks the capacity to consent, the
Commonwealth has no obligation to prove the use of force by the
defendant beyond what is required for the act of penetration"
(quotation and citation omitted). Commonwealth v. Gibson, 488
Mass. 854, 857 (2022). "To satisfy the lack of consent element
in a typical case, the Commonwealth must prove that 'at the time
of penetration, there was no consent.'" Sherman, supra, quoting
Commonwealth v. Lopez, 433 Mass. 722, 727 (2001). The single
3 justice concluded that the defendant had not presented any
appellate issues of the necessary "heft." We agree.
a. Penetration. The defendant argues that "no reasonable
juror could find that the [defendant] penetrated the victim"
because "the evidence is woefully lacking in this case." As the
single justice observed, however, viewed in the light most
favorable to the Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 677 (1979), the evidence showed that the defendant
interacted with the victim on the night in question, that the
victim found herself within a short distance of the defendant's
mother's home with no memory of getting there, that the victim
experienced vaginal soreness, and that the defendant's DNA was
present in the victim's underwear. See Commonwealth v. Pena, 96
Mass. App. Ct. 655, 661-662 (2019), quoting Commonwealth v.
Fowler, 431 Mass. 30, 33 (2000) ("direct evidence of skin-to-
skin contact is not required; '[p]enetration can be inferred
from circumstantial evidence'"). Contrary to the defendant's
argument, the fact that other DNA profiles were also found in
the victim's underwear would not preclude a jury from inferring
that the defendant engaged in sexual activities with the victim.
See Commonwealth v. Goddard, 476 Mass. 443, 449 (2017), quoting
Commonwealth v. Jones, 432 Mass. 623, 628 (2000) (inferences
drawn from such evidence "need not be necessary and inescapable,
only reasonable and possible"). We agree with the single
4 justice that the jury could have readily inferred that the
defendant penetrated the victim's vagina, and that the defendant
is unlikely to succeed on this claim. See Commonwealth v.
Fowler, 431 Mass. 30, 33 (2000) ("Reasonable and possible
inferences may be drawn from largely circumstantial evidence").
b. Lack of consent. The single justice similarly
concluded that the defendant had little likelihood of succeeding
on his claim that the evidence was insufficient to prove the
victim's incapacity to consent. We are not persuaded by the
defendant's argument that the evidence against him was not as
strong as that found sufficient in other cases. See
Commonwealth v. Chilcoff, 103 Mass. App. Ct. 48, 55 (2023) ("The
issue is whether the evidence here met the Latimore standard,
not whether it was as strong as in other cases"). The victim
testified that she attended a concert at a nightclub in Boston
with two friends. The defendant admitted he had also attended
concerts at the same nightclub, although he could not remember
the last time he had been there. After having a few drinks at
the club, the victim went to the bathroom. She remembered
nothing else until she woke up several hours later, extremely
groggy, in the defendant's neighborhood, with which she had no
connection, with no memory of how she got there. The grogginess
she experienced was unlike the type she usually felt after
having a few drinks.
5 The defendant points to countervailing evidence,
specifically that the victim's drug and alcohol panels from the
next day were negative and that no one at the club saw her
exhibiting classic signs of intoxication, in support of his
argument that he could not have known that the victim was
incapacitated. The single justice concluded, however, that the
defendant's argument that he was unaware of the victim's
intoxication was "not plausible" considering "evidence of the
victim's memory deficits and unfamiliar feeling of grogginess
after spending time in a nightclub where she was drinking." A
reasonable inference from the evidence presented was that the
victim was extremely intoxicated and that the defendant knew or
should have known that she lacked the ability to consent. See
Commonwealth v. Blache, 450 Mass. 583, 590 (2008) ("consumption
or even intoxication by itself is not the issue. . . . The
question instead is whether, as a result of the complainant's
consumption of drugs, alcohol, or both, she was unable to give
or refuse consent"). The defendant's argument that the evidence
of incapacity was insufficient is not likely to succeed on
appeal.
3. Security concerns. In "an abundance of caution," the
single justice further concluded that, based on the defendant's
criminal history and the severity of the sentence imposed, the
defendant would pose a security risk if his sentence were stayed
6 pending appeal. Because the defendant's failure to demonstrate
a likelihood of success on appeal is reason enough to deny his
motion for a stay, see Kalila, 493 Mass. at 645, we need not
consider the single justice's security determination.
Order of the single justice denying motion to stay execution of sentence affirmed.
By the Court (Massing, Englander & D'Angelo, JJ.1),
Clerk
Entered: July 10, 2025.
1 The panelists are listed in order of seniority.