Scione v. Commonwealth Commonwealth v. Barnes

114 N.E.3d 74, 481 Mass. 225
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 15, 2019
DocketSJC-12536; SJC-12540
StatusPublished
Cited by8 cases

This text of 114 N.E.3d 74 (Scione v. Commonwealth Commonwealth v. Barnes) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scione v. Commonwealth Commonwealth v. Barnes, 114 N.E.3d 74, 481 Mass. 225 (Mass. 2019).

Opinions

BUDD, J.

**226Here we are called upon to determine whether G. L. c. 276, § 58A ( § 58A ), the pretrial detention statute, may be applied to David W. Barnes and William Scione, charged with violating G. L. c. 265, § 23A ( § 23A ) (rape of child aggravated by age difference, i.e., statutory rape), and G. L. c. 266, § 102A ( § 102A ) (use of incendiary device), respectively. We conclude that § 23A does not qualify as a predicate offense under § 58A in its current form,1 and that, depending upon the circumstances, § 102A may (and, in this case, does) so qualify.

1. Statutory scheme of § 58A. Section 58A, which provides for the pretrial detention of certain defendants, "seek[s] systematically to identify those who may present a danger to society and to incapacitate them before that danger may be realized" (citation omitted). Mendonza v. Commonwealth, 423 Mass. 771, 780, 673 N.E.2d 22 (1996). The Commonwealth may move for a dangerousness hearing pursuant to § 58A if a defendant has been charged with one or more predicate offenses as defined under the statute.

**227G. L. c. 276, § 58A (4).

If an individual has been charged with a predicate offense as defined by § 58A, a hearing may be held to determine whether the individual should be released either on *77personal recognizance, under particular conditions, or not at all. G. L. c. 276, § 58A (2). A judge may order pretrial detention if he or she finds that the Commonwealth has established by clear and convincing evidence that "no conditions of release will reasonably assure the safety of any other person or the community." G. L. c. 276, § 58A (3).

Predicate offenses under § 58A either are specifically enumerated in the statute2 or fall within one (or more) of the following categories: (1) those felonies that "ha[ve] as an element of the offense the use, attempted use or threatened use of physical force against the person of another" (force clause); (2) "any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result" (residual clause); or (3) "a misdemeanor or felony involving abuse as defined in [ G. L. c. 209A, § 1 ]" (abuse clause). G. L. c. 276, § 58A (1).

We are tasked with determining whether § 23A and § 102A, neither of which is specifically enumerated in § 58A, fall within one of the other specified categories of offenses identified in the pretrial detention statute.

2. Barnes and § 23A. a. Background. We summarize the facts alleged and procedural history provided in the record of the proceedings against Barnes. After reportedly communicating through social media, the victim and Barnes met at a predetermined location and then proceeded to a hotel, where they engaged in sexual intercourse. The victim later reported to police that Barnes had sexually assaulted her. At the time of the incident, the victim was fifteen years old and Barnes was forty-three years old.

Barnes was charged with, among other things,3 statutory rape in violation of § 23A, which provides in pertinent part:

**228"Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under [sixteen] years of age and ... (b ) there exists more than a [ten-]year age difference between the defendant and the victim where the victim is between the ages of [twelve] and [sixteen] years of age ... shall be punished ...."

At arraignment in the District Court, the Commonwealth moved to detain Barnes pursuant to § 58A. Following a dangerousness hearing, the Commonwealth's § 58A motion was allowed and Barnes was ordered held. Barnes appealed to the Superior Court, arguing that (1) § 23A does not qualify as a predicate offense under the force clause of § 58A ; and (2) the residual clause of § 58A is unconstitutionally vague. A Superior Court judge agreed and reversed the District Court's judge's § 58A pretrial detention order. The Commonwealth filed a petition for extraordinary relief in the county court. G. L. c. 211, § 3. A single justice of this court reserved and reported the case for consideration by the full court.4

*78b. The force clause of § 58A. The force clause of § 58A is straightforward: an offense qualifies as a predicate crime pursuant to this clause if "an element of the offense is the use, attempted use or threatened use of physical force against the person of another." G. L. c. 276, § 58A (1). In making this determination, we take a categorical approach, that is, look at the elements of the offense, rather than the facts of or circumstances surrounding the alleged conduct. Commonwealth v. Young, 453 Mass. 707, 711-712, 905 N.E.2d 90 (2009).

The elements of the crime of statutory rape in violation of § 23A are that the defendant (1) had sexual intercourse or unnatural sexual intercourse with (2) a child between twelve and sixteen years of age, and (3) there is more than a ten-year gap between the ages of the defendant and the victim. See **229G. L. c. 265, § 23A. Compare Commonwealth v. Bernardo B., 453 Mass. 158, 172, 900 N.E.2d 834 (2009) (discussing elements of G. L. c. 265, § 23, "rape and abuse of child"). On its face, § 23A does not have as an element "the use, attempted use or threatened use of force." G. L. c. 276, § 58A (1). See Bernardo B., supra ("Force is not a necessary element of the crime"). The Commonwealth contends that a charge of statutory rape nevertheless qualifies as a predicate offense under the force clause of § 58A because statutory rape contains an inherent element of force and the act of penetration on a child may substitute for the physical force requirement of the force clause.

To support its position, the Commonwealth points to cases in which the defendant is charged with forcible rape pursuant to G. L. c. 265, § 22 ( § 22 ), and the (adult) complainant was unable to give or refuse consent due to being intoxicated or otherwise incapacitated. We have held that there, "the only force required for proof of the crime is 'such force as was necessary to accomplish' the act of intercourse -- that is, only the force necessary to effect penetration." Commonwealth v. Blache, 450 Mass. 583

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Bluebook (online)
114 N.E.3d 74, 481 Mass. 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scione-v-commonwealth-commonwealth-v-barnes-mass-2019.