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11-P-954                                                Appeals Court

                   COMMONWEALTH   vs.   ROBERT MONIZ.


                            No. 11-P-954.

        Middlesex.       February 12, 2015. - June 17, 2015.

              Present:    Cohen, Green, & Massing, JJ.

Rape.  Assault with Intent to Rape. Practice, Criminal, Motion
     to suppress, Assistance of counsel, Admissions and
     confessions. Constitutional Law, Assistance of counsel,
     Admissions and confessions. Evidence, Admissions and
     confessions.


     Indictments found and returned in the Superior Court
Department on September 2, 2004.

     The case was heard by Elizabeth M. Fahey, J., and a motion
for a new trial, filed on January 14, 2014, was considered by
her.


     James A. Reidy for the defendant.
     Jamie Charles, Assistant District Attorney (Kevin L. Ryle,
Assistant District Attorney, with him) for the Commonwealth.


     MASSING, J.     The defendant, convicted of eight counts of

sex offenses committed against his adopted son when the boy was

between the ages of fourteen and eighteen years old, appeals

from the three convictions based on his conduct after the victim
                                                                      2


turned sixteen, one for rape in violation of G. L. c. 265,

§ 22(b), and two for assault with intent to rape in violation of

G. L. c. 265, § 24, claiming insufficiency of the evidence.1     He

also appeals from the denial of his motion for new trial

alleging that trial counsel was ineffective for failing to move

to suppress the defendant's postindictment admissions to a

person he asserts was acting in a law enforcement capacity.      We

affirm.

     Background.   The victim was born in August, 1978.    The

defendant met the victim after he entered into a romantic

relationship with the victim's mother.   In 1988, the victim's

family began living with the defendant in Enfield, New

Hampshire.   In April, 1989, the defendant married the victim's

mother and adopted the victim.

     The first sexual incident occurred when the defendant

arranged to sleep alone with the victim in a cabin the defendant

had built in the middle of the woods, approximately two hundred

yards from the house in Enfield.   The defendant touched the

victim's genitals over his clothing for a couple of minutes

before they went to bed.   The victim asked the defendant what he

was doing, and the defendant told him, "[T]his is what all good

     1
       The other convictions were on two counts of rape and abuse
of a child under sixteen years of age, G. L. c. 265, § 23; one
count of assault with intent to rape a child under sixteen,
G. L. c. 265, § 24B; and two counts of indecent assault and
battery on a person aged fourteen or older, G. L. c. 265, § 13H.
                                                                      3


friends do."    The defendant would "do the same thing" at the

print shop that the defendant and the victim's mother owned,

where the victim sometimes worked.

       The defendant took the victim into the cabin once or twice

a week, mostly on the weekends, and more frequently during the

summertime.    Over time, the defendant began touching the

victim's genitals under his clothing.    The defendant would

arrange to stay home alone with the victim while the victim's

mother went out shopping for two to three hours at a time.       He

performed fellatio on the victim numerous times, asked the

victim to reciprocate, and told the victim that the victim was

gay.    The victim refused the defendant's requests for fellatio

but was afraid he could not otherwise protect himself from the

defendant.

       The victim asked the defendant at least once in New

Hampshire, "[W]hy he was doing that, why didn't he just love my

mother and leave me alone?"    The defendant convinced him that

nobody would believe him if he reported their sexual encounters,

and that it was better for his family if he would submit to the

defendant's sexual demands.    As a result, the sexual episodes

continued as the family relocated from New Hampshire to Rhode

Island to Massachusetts.

       The family moved to Waltham, Massachusetts, in 1993.    The

victim, then a sophomore in high school, was five feet, ten
                                                                    4


inches tall, and weighed 185 pounds.     Even as a teenager, "it

seemed easier" to the victim to remain silent and submit to the

defendant's sexual demands.   The defendant would "pitch a fit"

when the victim resisted his advances.     He threw several

tantrums that quickly escalated from screaming to physical

violence, "trashing" the victim's bedroom, and smashing walls.

The defendant would eavesdrop on the victim's telephone

conversations and become upset that the victim was spending time

with females, making the victim feel "like [he] was splitting

the family apart."   The victim "didn't want to create problems

within the family," and he "felt it was easier just to not say

anything."

    The defendant attempted to have anal sex with the victim on

two separate occasions, once when the victim was around fourteen

years old, and once after the victim's sixteenth birthday.     Both

times, the victim had been trying to take a shower in the

bathroom after the defendant had performed fellatio on him when

the defendant approached the victim from behind and "rubbed his

penis on [the victim's] butt."    The victim moved away and asked

the defendant what he was doing.   The defendant said nothing in

response and eventually left him alone in the bathroom.

    The defendant continued to sexually assault the victim

after he turned sixteen years old in the same general manner as

in the earlier sexual episodes.    The episodes stopped when the
                                                                      5


victim turned eighteen and moved into his grandparents' home in

Lexington.    The victim's mother testified that the defendant

became depressed in the victim's absence, and a few months

later, in November, 1996, the defendant attempted to commit

suicide.

     The defendant moved to Alaska in January, 1997, and the

victim finally told his mother that the defendant had been

sexually abusing him for years.    Approximately four years later,

the victim learned that the defendant was dating a woman in

Alaska who had a four year old son.    Fearing that the defendant

would sexually abuse the son, the victim reported the defendant

to the police.

     In 2004, the defendant was arrested in Alaska and indicted

in Massachusetts.    As a condition of bail, the Alaska court

appointed the mother of the defendant's new girlfriend to serve

as the defendant's third-party custodian.2     During the two- to

three-week period of the defendant's pretrial release in Alaska,

he made a series of admissions to his custodian regarding his

sexual assaults on the victim.    He told her that "he did it";

that he "hurt the child . . . , but he doesn't think it was

hurting him"; and that "everything he did helped that child."

     Discussion.    1.   Constructive force.   The defendant argues

that the evidence was insufficient to prove that he used force

     2
         See note 5, infra.
                                                                   6


to accomplish the sexual assaults after the victim reached the

age of sixteen.   To support a conviction for rape under G. L.

c. 265, § 22(b), the Commonwealth must prove beyond a reasonable

doubt that the defendant had sexual intercourse by force or

threat of force and against the will of the victim.    However,

the Commonwealth need not prove that the defendant used physical

force.   Commonwealth v. Caracciola, 409 Mass. 648, 651 (1991).

Constructive force may be shown by "proof that the victim was

afraid or that she submitted to the defendant because his

conduct intimidated her."    Commonwealth v. Newcomb, 80 Mass.

App. Ct. 519, 521 (2011) (Newcomb).    In cases such as this,

where sexual assaults that began when the victim was a child

continue past the child's sixteenth birthday, constructive force

may be shown by "a prior pattern of repeated sexual assaults by

the defendant upon the victim when she was a child, combined

with the victim's statement that the assaults always happened

the same way."    Id. at 524.

    For example, in Commonwealth v. Wallace, 76 Mass. App. Ct.

411, 413-414, 417-418 (2010) (Wallace), where the defendant's

sexual assaults on the victim began when the victim was eleven

and continued until he turned eighteen, evidence of "the history

of their relationship and the defendant's predatory behavior"

was sufficient to support the rape conviction.    The defendant

had repeatedly raped the victim as a child, which had the effect
                                                                    7


of "grooming the victim" to submit to the same conduct after he

matured.    Id. at 418 n.11.   The victim submitted to the

defendant after he turned sixteen because "he feared the

consequences of resisting the defendant's sexual advances (even

if the specific consequences he feared were not spelled out)."

Id. at 418.   These facts permitted the inference that the

defendant compelled the victim to submit by force and against

his will.   Id. at 417-418.

    Likewise in Newcomb, supra, we affirmed the defendant's

convictions of rape of his adult daughter on a theory of

constructive force.   The defendant's assaults on the victim when

she was under the age of sixteen "inculcated [in her a pattern

of] submit[ting] to the defendant's advances."     80 Mass. App.

Ct. at 522.   The victim's dependence on her father, his mental

abuse of her mother, his drunken tirades, and the "victim's

testimony that every act of [abuse] followed the same pattern"

permitted the inference that the sexual assaults of the adult

victim were "accomplished in precisely the same circumstances

that demonstrated constructive force when she was fourteen.

Those circumstances included a fear of the defendant that was

never dissipated."    Id. at 523.

    This case shares the hallmarks of constructive force found

in Wallace and Newcomb.    The assaults began when the victim was

young and the defendant, his adoptive father, was an authority
                                                                    8


figure.   The victim feared the defendant's angry, and sometimes

violent, tirades and worried that the family would be split

apart if he resisted the defendant's advances.   The pattern

continued after the victim turned sixteen.   This evidence was

sufficient to permit the jury to find the existence of the

essential element of force or threat of force beyond a

reasonable doubt.   See Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979); Commonwealth v. Hanlon, 44 Mass. App. Ct. 810,

814 (1998).

     The defendant also argues that the proof of force (or

constructive force) was necessary to sustain his convictions of

assault with intent to anally and orally rape the victim, and

that such proof was absent.   However, proof of force is not

needed to sustain a conviction of assault with intent to rape,

the elements of which are "an assault on the victim and a

specific intent . . . to rape the victim."   Commonwealth v.

Martin, 447 Mass. 274, 287 n.9 (2006), citing Commonwealth v.

Nickerson, 388 Mass. 246, 253 (1983).

     The trial judge instructed the jury on the two common-law

theories of assault, attempted battery and immediately

threatened battery.3   Neither requires the use of force, or even


     3
       To convict on a theory of attempted battery, "the
prosecution [must] . . . prove that the defendant intended to
commit a battery, took some overt step toward accomplishing that
intended battery, and came reasonably close to doing so. . . . A
                                                                      9


that the victim be put in fear.     Indeed, under the attempted

battery theory, the victim does not even need to be aware of the

attempt -- "the victim could be unconscious or have his back

turned when the attempted battery occurred."     Commonwealth v.

Porro, 458 Mass. 526, 530 (2010).    Under the threatened battery

theory, "[t]he victim need not actually be in fear, but must

apprehend the risk of an imminent battery."     Id. at 531.   The

evidence was sufficient to prove both counts of assault with

intent to rape.

    2.   Ineffective assistance of counsel.     In his motion for a

new trial, the defendant claimed that trial counsel was

ineffective for failing to file a motion to suppress the

admissions he made to his court-appointed custodian in Alaska

after he had been indicted in Massachusetts and his right to

counsel had attached.

    The Sixth Amendment to the United States Constitution

"generally prohibits any 'knowing exploitation by the State of

an opportunity to confront the accused without counsel being

present.'"   Commonwealth v. Hilton, 443 Mass. 597, 614 (2005),

S.C., 450 Mass. 173 (2007) (Hilton), quoting from Maine v.



conviction of assault under a theory of threatened battery
requires the prosecution to prove that the defendant engaged in
conduct that a reasonable person would recognize to be
threatening, that the defendant intended to place the victim in
fear of an imminent battery, and that the victim perceived the
threat." Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010).
                                                                    10


Moulton, 474 U.S. 159, 176 (1985).    This rule applies when law

enforcement officials or their agents speak to defendants about

their pending charges in the absence of counsel; it does not

apply to communications initiated by "private citizens

'unconnected with law enforcement authorities.'"     Hilton, supra

at 615-616, quoting from Commonwealth v. Allen, 395 Mass. 448,

454 (1985).

     The defendant claims that his third-party custodian,

appointed by the Alaska court under Alaska Stat. § 12.30.020

(2004),4 was acting as an agent of Massachusetts prosecutorial

authorities.    We disagree.   Alaska's unique third-party

custodian arrangement was a form of supervised home detention.5

See Johnston, Sentenced by Tradition:    The Third-Party Custodian

Condition of Pretrial Release in Alaska, 26 Alaska L. Rev. 317

(2009).   The appointment of the custodian, imposed in lieu of

bail or pretrial detention, was for the defendant's benefit.

She did not act at the behest or on the behalf of the

Commonwealth.

     4
       This provision has since been repealed.    See 2010 Alaska
Sess. Laws c. 19, § 30.
     5
       Alaska Stat. § 12.30.020(b)(1), as then in effect, gave
the judicial officer determining a defendant's pretrial release
status the option of "plac[ing] the person in the custody of a
designated person or organization agreeing as a custodian to
supervise the person." A custodian could be subject to
prosecution for "failure to report immediately in accordance
with the terms of the [release] order that the person released
has violated a condition of release." Ibid.
                                                                  11


    The defendant chose his girlfriend's mother as a custodian

because she was friendly to him and her home was convenient.

After his arrest, the defendant's girlfriend "begged" her mother

to accept responsibility for supervision of the defendant in

accordance with the conditions of pretrial release.   According

to the defendant, his two other sureties lived too far away,

"all the way into Fairbanks," whereas his girlfriend's mother

lived approximately one mile away in North Pole, Alaska.

    The defendant likens his custodian to the court officer

found to be the equivalent of a law enforcement official in

Hilton.   He argues that like the court officer, who "was

required to report any observations or information concerning

criminal activity," Hilton, 443 Mass. at 616, the custodian "was

required to report any violations of law or conditions of

release to the authorities."   See Commonwealth v. Howard, 446

Mass. 563, 569 (2006) ("Our primary concern was, and remains,

with the constitutional implications of questioning on matters

concerning pending charges posed by persons whose official

duties direct them to interact with a defendant and who may be

required to turn any incriminating responses over to the police

and prosecutor").

    The defendant exaggerates his custodian's responsibilities.

Her statutory duty was to assure the defendant's appearance at

trial, and her reporting obligation was accordingly limited to
                                                                    12


informing the court if "the person released has violated a

condition of release."     Alaska Stat. § 12.30.020(b)(1).   She was

not charged with investigating the pending charges or reporting

other criminal conduct, nor did she.     She did not disclose the

defendant's admissions until after the defendant had been

extradited to Massachusetts, and then only when a Fairbanks

police detective, at the request of the Waltham police, sought

her out for questioning.     "[N]either the [custodian's] questions

nor the defendant's responses were prompted or suggested by law

enforcement officials."    Commonwealth v. Allen, 395 Mass. at

454.    Under these circumstances, an agency relationship did not

arise between the custodian and the Commonwealth.

       Because a motion to suppress would have been futile, the

defendant cannot demonstrate that counsel was ineffective for

failing to pursue it, or that counsel's failure to do so

deprived him of a substantial defense.     See Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Conceicao,

388 Mass. 255, 264 (1983).    The judge's denial of the motion for

new trial without an evidentiary hearing was well warranted.

       Conclusion.   For the foregoing reasons, the defendant's

motion for required findings of not guilty on the three
                                                                  13


challenged charges and his motion for a new trial were properly

denied.

                                   Judgments affirmed.

                                   Order denying motion for new
                                     trial affirmed.
