Commonwealth v. William Hurcombe, Jr.

• Court: Massachusetts Appeals Court
• Decided: July 28, 2023
• Docket: 21-P-1056
• Status: Unpublished

Opinion

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

21-P-1056

COMMONWEALTH

vs.

WILLIAM HURCOMBE, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of

assault and battery on a household or family member, indecent

assault and battery, and larceny under $250. He was acquitted

of rape and witness intimidation. On appeal, he challenges only

his conviction for indecent assault and battery on the basis

that the jury were not instructed on an essential element of

that crime. We affirm his convictions of assault and battery

and larceny, reverse his conviction of indecent assault and

battery, and remand the case for further proceedings.

The only issue before us on this appeal involves a conceded

error. One of the elements of indecent assault and battery is

lack of consent. See, e.g., G. L. c. 268, § 13H; Commonwealth

v. St. Louis, 473 Mass. 350, 360-361 (2015); Commonwealth v.

Burke, 390 Mass. 480, 482-483 (1983). The judge, however, left this element out of his instruction on that charge. Neither

party objected. Because the defendant did not object to the

lack of an instruction on consent, reversal will be warranted

only if the error created a substantial risk of a miscarriage of

justice. See Commonwealth v. Desiderio, 491 Mass. 809, 815

(2023).

In Desiderio, decided during the pendency of this appeal,

the Supreme Judicial Court clarified the standard for

determining when the omission of an instruction on an element of

an offense will create a substantial risk of a miscarriage of

justice. It said that because "on appeal, 'our role is not to

sit as a second jury,' . . . we must analyze the evidence

pertaining to that element with an exacting lens." Desiderio,

supra at 817, quoting Commonwealth v. Azar, 435 Mass. 675, 689

(2002). It continued, "We therefore clarify today that, to

determine whether a substantial risk of a miscarriage of justice

is created by the omission of a required element from the jury

instructions, the question is, as we said in Azar, supra [at

688], whether the presence of the omitted element was an

ineluctable, or inescapable, inference from the evidence

presented at trial. In light of the nature and significance of

this type of error, only when the answer to that question is

'yes,' in this context, will the error not create a substantial

risk of a miscarriage of justice." Desiderio, supra at 820.

2 Here, the answer to that question is a straightforward

"no." The defendant contested the victim's version of events,

and it was not an inescapable conclusion from the evidence at

trial that the defendant touched the victim's breast without her

consent. The guilty verdict on the charge of indecent assault

and battery does mean that the jury credited the victim's

testimony that the defendant touched her breast. But on the one

count on which the jury was instructed that lack of consent was

an element, the jury rejected the victim's claim of digital rape

and acquitted the defendant. We do not know why. Perhaps the

jurors concluded that digital penetration did not take place.

Or perhaps they concluded that it did, but that it was

consensual, and properly instructed on the elements of rape,

they acquitted the defendant. With no instruction that an

indecent assault and battery must also be without the victim's

consent, it is possible that the jury convicted the defendant

based on a consensual touching.

The Commonwealth argues that there was no substantial risk

of a miscarriage of justice because "[t]he element of consent

was not a contested issue at trial" and because "the evidence on

the omitted element of consent was overwhelming." To be sure,

the substantial risk test "contemplates whether the evidence

addressing the omitted or erroneously stated element was

overwhelming or uncontested at trial." Desiderio, 491 Mass. at

3 817-818. As to whether an issue is contested, however, our case

law explains that the actual "question is whether the element on

which there was no instruction 'relate[s] to an issue actively

contested at trial' (emphasis added), Commonwealth v. Gabbidon,

398 Mass. 1, 5 (1986), such that a defendant might have been

acquitted by a properly instructed jury." Commonwealth v.

Mitchell, 95 Mass. App. Ct. 406, 414 (2019). The defendant did

contest whether there had been any kind of struggle between the

defendant and the victim. Given this, and in light of the jury

acquitting the defendant of the digital rape the victim claimed

had occurred, it is possible that if properly instructed on

consent, the jury might have acquitted him of that crime as

well.

Similarly, as to whether the evidence was overwhelming,

"our assessment of the strength of the Commonwealth's evidence

must focus on the evidence addressing the [omitted] element."

Desiderio, 491 Mass. at 819. This is consistent with our

statement in Mitchell, decided before Desiderio, that we may

affirm a conviction in these circumstances if "the jury's

verdicts on the other counts on which the defendant was

convicted compel the conclusion they 'necessarily found' the

element on which they were not instructed." Mitchell, 95 Mass.

App. Ct. at 412, quoting Commonwealth v. McCray, 93 Mass. App.

Ct. 835, 847 (2018). We do not think the evidence or the jury's

4 verdict showed that the jury necessarily found that the

defendant touched the victim's breast without consent. The jury

obviously did not completely believe the victim's or the

defendant's story, and there is at least a possibility they

could have found that there was some consensual sexual contact

prior to the events for which they convicted the defendant of

assault and battery on a household or family member. In other

words, "[w]hile the evidence . . . may have been sufficient for

the jury" to find that the defendant touched the victim's breast

without her consent, such a finding was "hardly ineluctable."

Desiderio, 491 Mass. at 822-823.

The convictions of assault and battery on a family member

and larceny under $250 are affirmed, the conviction on indecent

assault and battery is reversed, and the case is remanded for

further proceedings consistent with this memorandum and order.

So ordered.

By the Court (Green, C.J., Rubin & Massing, JJ.1),

Clerk

Entered: July 28, 2023.

1 The panelists are listed in order of seniority.