Commonwealth v. William Hurcombe, Jr. ( 2023 )

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.
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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
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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
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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.
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