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SJC-12530

              COMMONWEALTH   vs.   RICHARD SHERMAN, JR.



        Essex.      November 6, 2018. - February 13, 2019.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Rape.  Consent. Practice, Criminal, Instructions to jury,
     Question by jury. Evidence, Inflammatory evidence, Expert
     opinion.



     Indictments found and returned in the Superior Court
Department on December 11, 2014.

     The cases were tried before Joshua I. Wall, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Edward Crane for the defendant.
     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.


     GANTS, C.J.   A Superior Court jury convicted the defendant

of penile-vaginal and digital-vaginal rape, implicitly rejecting

the defendant's testimony that all sexual intercourse between

him and the victim had been consensual.     On appeal, the
                                                                    2


defendant claims that the trial judge committed two reversible

errors.   First, the defendant contends that, where the

deliberating jury asked the judge whether initially consensual

sexual intercourse could become rape if the victim withdrew her

consent after penetration, the judge erred by failing to

instruct the jury that a defendant may not be found guilty of

rape under such circumstances unless the penetration continued

after the victim communicated the withdrawal of consent to the

defendant.   Second, the defendant argues that, where there was

no expert testimony regarding the effect of cocaine on

perception and memory, the judge erred in admitting evidence of

cocaine use for the purpose of allowing the jury to assess the

defendant's ability to perceive and recall events.    We conclude

that the judge erred in failing to provide the jury with an

instruction regarding the withdrawal of consent and in admitting

cocaine evidence for the purpose of assessing the defendant's

memory, but that, in the circumstances of this case, neither

error requires reversal of the defendant's convictions.

    Background.     The primary contested issue at trial was

whether the victim had consented to sexual intercourse with the

defendant.   The victim and the defendant offered sharply

differing accounts of what happened in the early morning of

October 14, 2014.    We summarize the evidence at trial.
                                                                      3


    The victim testified that on the night of October 13, 2014,

she drank one beer with a female friend at a pub, and then went

with her friend to a second pub.     The two arrived at the second

pub at some time between midnight and 12:15 A.M.     Upon arriving,

the victim recognized one of her coworkers and the bartender,

and began speaking with them.     The defendant, whom the victim

did not know, joined the conversation.     The victim and the

defendant remained at the pub until approximately 1 A.M., when

the pub closed.   The victim drank one beer and one shot at the

second pub.

    The defendant, the victim, and others continued to talk

outside the pub after closing.     The defendant asked the victim

if she wanted to "hang out."     The victim agreed, but explained

to the defendant that it was "just going to be us hanging out"

because she was gay.   The defendant said that was fine, and the

two exchanged telephone numbers before parting.

    The victim and her friend then went to a restaurant, where

the victim received a text message from the defendant:     "I wanna

c u 2nite make it happen."   The victim texted back, "Thats fine,

but you just need to know that i like girls."     The defendant

asked by text whether the victim wanted him to get condoms.        The

victim replied by text, "im down to chill but i like girls."

After the defendant texted, "K thats cool . . . ," the victim

added, "Plus, not to sound gross but im on my period.     Lol."
                                                                      4


The defendant replied by text, "Its all good."     The victim then

drove her friend home and continued alone to the defendant's

apartment, arriving shortly before 2 A.M.

       The defendant came downstairs to meet the victim, and the

two went up to his apartment.     Both the victim and the defendant

drank beer in the kitchen while discussing their shared interest

in music.    The defendant then told the victim that he wanted to

show her a record in his bedroom.     The victim entered the

defendant's bedroom, sat at the foot of the bed, and began

looking at the record.    The defendant sat down behind the victim

and attempted to kiss her on the cheek.    The victim responded by

putting her hand out and telling the defendant that she was gay

and that "it is not going past just hanging out."    The defendant

apologized multiple times, and then attempted to kiss the victim

again.    Before she could tell him to stop, the defendant got on

top of the victim, put his knees on her thighs, and put his

hands on her shoulders.    The victim testified that she felt

"terrified," that she "froze," and that she was unable to fight

back against the defendant.

       The defendant then pulled down the victim's pants and

pulled her shirt up to her neck.    The victim told the defendant

to "stop" and to "get the fuck off me," and the defendant asked

why.     When the victim responded that she was gay, the defendant

said "good" and vaginally raped her with his penis.     Intercourse
                                                                       5


was painful for the victim, who was wearing a tampon, but the

defendant "kept going harder and faster."      The defendant then

put his penis in the victim's mouth.      When the victim turned her

head away, he inserted his fingers into her vagina.       The

defendant then vaginally raped the victim with his penis for a

second time.     The victim screamed "stop" repeatedly and

attempted to push the defendant off her by moving her arms from

side to side.    The defendant then got off the victim.

    The victim dressed rapidly, went into the bathroom, and

then collected her things to leave.     The defendant told the

victim not to "worry about the blood," which the victim observed

on the defendant's bed, in the kitchen (located between the

bedroom and the bathroom), and on the defendant.       The defendant

then offered to walk the victim to her vehicle.      The victim

declined.     Nevertheless, the defendant followed the victim

downstairs, held her vehicle's door open while she tried to

close it, and attempted to kiss her.     The victim pushed the

defendant and drove away.

    Soon after leaving the defendant's apartment, the victim

called a friend from her vehicle.      After five or six telephone

calls, her friend answered and the victim told her, "I've been

fucked.     It just happened.   I just got raped."   The friend

testified that the victim was so "distraught" and "hysterical"
                                                                    6


on the telephone that it was initially difficult to understand

her.

       The victim then drove to her parents' home, and they took

her to a hospital where a nurse conducted an evidence collection

examination.   The nurse testified at trial that the victim --

who, the nurse reported, said that she had been assaulted1 -- was

"horrified, angry, upset, [and] tearful."    The nurse further

testified that the victim denied being in pain at that time, and

that the nurse observed no trauma to the victim's body.

       At around 4:45 A.M., the victim met with Salem police

Detective Eric Connolly at the hospital.     Connolly testified

that the victim was "visibly upset" and crying.    After speaking

with the victim, Connolly and two uniformed officers went to the

defendant's address.    They arrived at approximately 6 A.M., and

the defendant let them into his apartment.    The officers asked

the defendant whether he had met anybody that night, and the

defendant responded that he had had sexual intercourse with a

woman, but could not remember her name.     Then, while the

officers were speaking with him, the defendant lowered his

shorts to reveal a "reddish brown stain" resembling blood on his

underwear.   The defendant also led the officers into his bedroom




       The defendant did not object to the admission of the
       1

testimony regarding the victim's statement that she had been
assaulted.
                                                                    7


to show them a bloodstain on his bed sheets.    The officers

placed the defendant under arrest and transported him to the

Salem police department for booking.   During booking, Connolly

observed that the defendant had "red brownish stains" resembling

blood on his left hand.

    That same day, officers obtained a warrant to search the

defendant's apartment.    During their execution of the warrant,

officers discovered a paper plate with a spoon on it on the

defendant's kitchen counter.   The spoon, which appeared burnt,

held a white powdery substance believed by Connolly to be

cocaine.   Connolly observed more white powder next to the plate.

Officers also obtained a search warrant for the defendant's cell

phone, which led to extraction of the text messages between the

defendant and the victim.

    On October 20, the victim went to the Salem police

department to have photographs taken of bruises that had

appeared on her inner arm and inner thigh after the assault.

    The defendant testified that he had been at the pub for

several hours when the victim, whom he had not met before,

arrived.   The defendant told the victim that he was recently

divorced but "still involved" with his ex-wife.    The victim

responded that it was not a good idea for the defendant to

remain involved with his ex-wife, that he would "probably end up

getting hurt," and that he "should move on."    The defendant
                                                                     8


replied, "Move on with you?"    The victim told the defendant that

she "like[d] girls."    When he asked, "[Y]ou don't like men?" she

replied, "I didn't say that."

    After last call, the defendant asked the victim for her

telephone number.    The victim provided it, and the defendant

texted her soon after to ask whether she wanted to meet later

that night.    The victim agreed, but repeatedly told the

defendant that she liked girls.    The defendant understood this

to mean that in light of the victim's interest in women, he

should not "expect a commitment" from the victim.

    When the victim texted the defendant to let him know that

she had arrived at his apartment, the defendant went downstairs

to greet her, kissed her on the cheek, and brought her upstairs

to his home.    The two were speaking about music in the kitchen

when the defendant kissed the victim on the lips.    The victim

reciprocated, and the two kissed for several minutes.       The

victim then walked into the defendant's bedroom, and the

defendant followed.

    When the defendant entered his bedroom, the victim was

sitting on the edge of his bed.    The defendant joined her, and

the two resumed kissing.    They also began touching each other's

genitals, although the defendant testified that he never

inserted his finger into the victim's vagina.    The defendant

then lowered his shorts, and the victim got off the bed to
                                                                      9


perform oral sex on the defendant from the edge of the bed.      The

defendant did not force the victim to engage in oral sex.     After

a couple of minutes, the victim removed her jeans and sweatshirt

and lay down in the middle of the bed.    The defendant lay down

next to her, and the two resumed kissing and touching one

another.    After several minutes, the victim told the defendant

to "just put it in her."    The defendant asked the victim about

her period, and she responded, "I don't care if you don't care."

The two then had consensual vaginal intercourse.    The defendant

testified that the victim did not ask the defendant to stop,

push him away, or twist her body.

    Afterward, the victim went into the defendant's bathroom

for approximately five to ten minutes.    When she came back into

the bedroom, the defendant and the victim spoke for

approximately five to ten minutes about how strange it was that

they had never met despite sharing a number of mutual friends.

The victim did not seem upset.    After this conversation, the

defendant walked the victim to her vehicle and kissed her

goodbye.    The defendant then returned to his apartment.   At 3:28

A.M., he texted the victim to say he hoped she got home safely

and to ask whether she wanted to get together the next day to

"cuddle."   The victim did not respond to this message.

    Later, police officers arrived at the defendant's door and

asked whether he knew the victim.    The defendant testified that,
                                                                    10


at that time, he thought the police might have come to his

apartment because the victim had been involved in an accident.

The defendant invited the officers into his home and, when

asked, told them that he had had sexual intercourse with the

victim.   The officers also asked the defendant whether he had

raped the victim, and the defendant responded that he had not.

    The defendant testified that on the night in question, he

had a total of three or four beers at the pub and approximately

one-half of one beer at his apartment.   The defendant also

testified that he had not ingested cocaine or any other drug

that evening.   When asked about the cocaine found on his kitchen

counter, the defendant said that he did not recognize the

cocaine and had not used it on the night in question.     The

defendant also confirmed that he lived alone in his apartment.

    At the close of the evidence, the judge instructed the jury

regarding the law governing the three indictments of rape:

digital-vaginal rape, penile-vaginal rape, and penile-oral rape.

The judge instructed the jury that "[i]n order to prove the

defendant guilty of this offense, the Commonwealth must convince

[the jury] beyond a reasonable doubt of two things:     First, that

the defendant engaged in sexual intercourse . . . with the

alleged victim . . . and, second, that the sexual intercourse

was accomplished by compelling [the victim] to submit by force

or threat of bodily injury and against her will."     With regard
                                                                11


to the second element, the judge went on to instruct the jury

that the Commonwealth "must prove beyond a reasonable doubt that

at the time of penetration, [the victim] did not consent."    The

judge also instructed the jury that the force requirement would

be satisfied if the defendant compelled sexual intercourse by

physical force, violence, threat of bodily injury, or

constructive force, which "may be by threatening words or

gestures" and requires "proof that the victim was afraid or that

the victim submitted to the defendant because his conduct

intimidated her."

    During their deliberations, the jury sent the following

written question to the judge:

    "Need clarification. Is 'time of penetration' the start or
    duration? Definition of the rape -- does it include if she
    says No in the middle of the Act? In other words, is it
    rape if it started consensual and she changed her mind?"

    After conferring with counsel, the judge brought the jurors

back into the court room and explained:

    "I understand your question to be can lawful sexual
    intercourse become unlawful at some point during the act.
    The answer to that is yes, if the Commonwealth proves the
    second element beyond a reasonable doubt; and the second
    element includes lack of consent and use of force or
    constructive force. So, legally, the answer is yes.
    Lawful sexual intercourse can become unlawful sexual
    intercourse, but remember that the Commonwealth has to
    prove . . . both portions of the second element: Lack of
    consent and use of force or constructive force."
                                                                  12


Neither party objected to this instruction.2

     Later that day, the jury found the defendant guilty on the

indictments charging digital-vaginal rape and penile-vaginal

rape, and not guilty on the indictment charging penile-oral

rape.3   The defendant appealed, and we granted his application

for direct appellate review.

     Discussion.   1.   Withdrawal of consent.   The defendant

claims that it was reversible error for the judge not to

instruct the jury explicitly that, in order for initially

consensual intercourse to turn into rape, a victim must

communicate his or her withdrawal of consent to a defendant and

the defendant must persist with intercourse despite the

communication.   Because the defendant did not object to the

judge's instructions concerning the withdrawal of consent, we

evaluate whether the instructions created a substantial risk of




     2 When the judge first spoke with the attorneys about the
jury's question, defense counsel requested that the jury be
"instructed that if it starts out consensual, it is consensual
up until the point where there is a clear . . . statement to the
contrary." Defense counsel, however, did not press this
argument, and did not object to the judge's answer to the jury
question.

     3 The judge sentenced the defendant to from six to eight
years in State prison on the penile-vaginal rape conviction, and
to three years of probation on the digital-vaginal rape
conviction, to be served from and after his release from
custody.
                                                                    13


a miscarriage of justice.    See Commonwealth v. Pires, 453 Mass.

66, 73 (2009).

    To find a defendant guilty 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."

Commonwealth v. Lopez, 433 Mass. 722, 726 (2001).    See G. L.

c. 265, § 22 (b) ("compels such person to submit by force and

against his [or her] will, or . . . by threat of bodily

injury").   The first element is undisputed here.   The second has

been interpreted "as truly encompassing two separate elements":

force or threats, and lack of consent.    Lopez, supra at 727.   To

satisfy the force or threats element, the Commonwealth must

prove "that the defendant committed sexual intercourse . . . by

means of physical force; nonphysical, constructive force; or

threats of bodily harm, either explicit or implicit" (citations

omitted).   Id.   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" (emphasis added).    Id.

    We recently described our case law regarding the issue of

consent in cases where the defendant alleges that he or she
                                                                 14


honestly and reasonably believed that the victim had agreed to

sexual intercourse:

    "In Lopez, 433 Mass. at 727-728, we held that a defendant
    charged with rape is not entitled to raise a defense of an
    honest and reasonable mistake as to the victim's consent,
    noting that our rape statute, G. L. c. 265, § 22, does 'not
    require proof of a defendant's knowledge of the victim's
    lack of consent or intent to engage in nonconsensual
    intercourse.' A defendant need only intend to perform the
    act by force or threat of force. Id. at 728-729. Because
    the Commonwealth is not required to prove that a defendant
    intended the intercourse be without consent, 'a mistake of
    fact as to that consent cannot . . . negate a mental state
    required for the commission of the prohibited conduct.'
    Id. at 728.

    "We further determined that requiring the Commonwealth to
    prove that a defendant 'compelled the victim's submission
    by use of force; nonphysical, constructive force; or threat
    of force' negates 'any possible mistake as to consent.'
    Id. at 729. In so holding, we observed that a mistake of
    fact defense has the potential to 'eviscerate the long-
    standing rule in this Commonwealth that victims need not
    use any force to resist an attack.' Id. A rape victim
    need not fend off attackers with physical force 'in order
    to communicate an unqualified lack of consent to defeat any
    honest and reasonable belief as to consent.' Id.

    "Nonetheless, we concluded our analysis by acknowledging
    that a mistake of fact defense as to consent might, in some
    circumstances, be appropriate. Accordingly, we left open
    the possibility of its use in 'a future case where a
    defendant's claim of reasonable mistake of fact is at least
    arguably supported by the evidence.' Id. at 732.

    "Seven years later, in Commonwealth v. Blache, 450 Mass.
    583, 594 (2008), we considered whether a defendant charged
    with raping someone incapable of consenting to intercourse
    (due to intoxication) was entitled to an instruction on
    mistake of fact. Because the Commonwealth is not required
    to prove the use of force beyond that necessary for
    penetration [in cases involving a victim who was incapable
    of consenting], 'the possibility of a defendant's
    reasonable mistake about the complainant's consent could
    increase, creating the potential for injustice.' Id. We
                                                                  15


    held that 'in   such a case the Commonwealth must prove that
    the defendant   knew or reasonably should have known that the
    complainant's   condition rendered her incapable of
    consenting to   the sexual act.' Id."

Commonwealth v. Kennedy, 478 Mass. 804, 809-810 (2018).

    The jury question in this case requires us for the first

time to consider whether an additional element of proof --

communication of the withdrawal of consent -- is required to

avoid the risk of a reasonable mistake of fact in a case where

the jury may find that the initial sexual penetration was

consensual but that the victim withdrew consent during the

course of continued sexual intercourse.

    We have no doubt that consensual sexual intercourse between

adults is not only lawful, but a private act of intimacy so

important that it is constitutionally protected as a liberty

interest.   See Lawrence v. Texas, 539 U.S. 558, 567, 572 (2003);

Goodridge v. Department of Pub. Health, 440 Mass. 309, 328-329

(2003) ("how to express sexual intimacy" is "among the most

basic of every individual's liberty and due process rights"

under Massachusetts Constitution).   We also have no doubt that

consensual sexual intercourse can become unlawful where the

victim withdraws consent after the initial act of penetration

has occurred.   See M.G. v. G.A., 94 Mass. App. Ct. 139, 142

(2018) ("a person's consent may be withdrawn prior to or during

the act"); Commonwealth v. Enimpah, 81 Mass. App. Ct. 657, 661
                                                                   16


(2012) (where victim consented at time of initial penetration

but withdrew consent during intercourse, and where defendant

forcibly continued intercourse after victim's withdrawal of

consent, jury could have found defendant guilty of rape).

Consequently, we must draw a clear line that is crossed when

sexual intercourse that begins as a consensual act of intimacy

is transformed into rape, one of the most serious crimes

punishable by law.   See G. L. c. 265, § 22 (b) (rape conviction

punishable by imprisonment for up to twenty years; second or

subsequent rape conviction punishable by imprisonment for life

or for any term of years); Newsom v. State, 533 P.2d 904, 911

(Alaska 1975) ("forcible rape ranks among the most serious

crimes . . . because it amounts to a desecration of the victim's

person which is a vital part of [his or] her sanctity and

dignity as a human being").

    The Commonwealth argues that no additional element of proof

is necessary because, where the victim withdraws consent,

continued sexual intercourse becomes rape only where the

defendant compels the victim to continue to have sexual

intercourse by force or threat of force.   The Commonwealth

contends that such a finding is, "effectively and essentially,

the equivalent of a finding by the jury that the victim conveyed

or communicated to the defendant that she no longer consented."

In other words, the Commonwealth agrees with the defendant that
                                                                   17


a victim must communicate his or her withdrawal of consent, but

argues that an instruction on the matter is unnecessary because

a jury would always understand that continued penetration that

is compelled by force or threat of force could only be so

compelled after the communicated withdrawal of consent.

    The problem with this argument is that it is far easier to

evaluate whether force or the threat of force compelled a victim

to submit to a defendant's initial penetration of a victim's

vagina, anus, or mouth than it is to evaluate whether force or

the threat of force compelled a victim to submit to a

defendant's continued penetration.   Therefore, where the initial

penetration was consensual, the fairest and clearest way to draw

the line separating consensual sexual intercourse from

postpenetration rape is to require, as an element of the

offense, that the victim reasonably communicate to the defendant

his or her withdrawal of consent.    This approach is in keeping

with the decisions of a number of State courts.    See, e.g., In

re John Z., 29 Cal. 4th 756, 760 (2003) ("the offense of

forcible rape occurs when, during apparently consensual

intercourse, the victim expresses an objection and attempts to

stop the act and the defendant forcibly continues despite the

objection"); State v. Robinson, 496 A.2d 1067, 1068-1069 (Me.

1985) (affirming conviction where judge instructed jury that

where intercourse is initially consensual "and one or the other
                                                                    18


changes his or her mind, and communicates the revocation or

change of mind of the consent, and the other partner continues

the sexual intercourse by compulsion of the party who changes

his or her mind, then it would be rape").

    The communication of withdrawn consent certainly need not

be made through the use of physical force.   Cf. Lopez, 433 Mass.

at 729 (noting "long-standing rule in this Commonwealth that

victims need not use any force to resist an attack").     It also

need not be made through the use of particular words, or through

words at all.   Physical gestures, such as trying to push the

defendant away or attempting to move in a way that would require

the defendant to end the penetration, may suffice, provided that

these gestures reasonably communicate the withdrawal of consent

to a reasonable person in the defendant's circumstances.    We

emphasize, however, that the Commonwealth need not prove that

the defendant actually knew that the victim withdrew consent.

It suffices that the victim reasonably communicated the

withdrawal of consent in such a manner that a reasonable person

would have known that consent had been withdrawn.   See id. at

727 ("Although the Commonwealth must prove lack of consent, the

elements necessary for rape do not require that the defendant

intend the intercourse be without consent" [quotation and

citation omitted]).
                                                                   19


    The requirement of a reasonable communication protects a

defendant who lawfully initiates sexual intercourse with a

partner's consent from being convicted of rape where the partner

withdraws consent during sexual intercourse without

communicating the withdrawal to the defendant.    However, we

emphasize that we require no such communication of nonconsent in

a case where the victim alleges that the initial penetration was

without consent.    In such cases, the requirement that the sexual

intercourse be compelled by force or the threat of force will

typically suffice to protect a defendant from being found guilty

of rape based on a reasonable mistake of fact.    See Lopez, 433

Mass. at 728-729.

    We also clarify that in withdrawn consent cases, the force

or threat of force required for a rape conviction is only that

necessary to compel continued intercourse after the withdrawal

of consent.   Cf. Lopez, 433 Mass. at 726 ("The essence of the

crime of rape . . . is sexual intercourse with another compelled

by force and against the victim's will or compelled by threat of

bodily injury" [citation omitted]).    No additional use or threat

of force is required under G. L. c. 265, § 22.

    We expect that these withdrawn consent rape instructions --

explaining that initially consensual sexual intercourse can

become rape, adding the element of a reasonable communication of

the withdrawal of consent, and defining the element of force or
                                                                   20


threat of force as only that necessary to compel continued

intercourse after the withdrawal of consent -- will apply only

in two rare circumstances:   first, where there is evidence

presented at trial that the victim consented to the initial

penetration of sexual intercourse and later withdrew consent; or

second, where the jury asks a question concerning withdrawal of

consent, as they did here.   In the absence of such a jury

question, the defendant's testimony that the victim consented to

sexual intercourse will not suffice alone to warrant an

instruction on the withdrawal of consent after penetration.     Nor

will the victim's prior consent to an earlier completed act of

sexual intercourse suffice alone to warrant such an instruction.

Rather, in the absence of a jury question, the instruction will

be warranted only when there is evidence that the victim

initially consented to the sexual intercourse at issue, and then

withdrew his or her consent during the course of it.   Only then

will instructions on withdrawn consent be needed to prevent the

routine instruction -- that the Commonwealth "must prove beyond

a reasonable doubt that at the time of penetration, [the victim]

did not consent" -- from causing confusion.

    Having concluded that the jury question here warranted such

instructions, we now consider whether their absence created a

substantial risk of a miscarriage of justice.   We must order a

new trial under the substantial risk standard "if we have a
                                                                   21


serious doubt whether the result of the trial might have been

different had the error not been made."    Commonwealth v. Azar,

435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430

Mass. 169, 174 (1999).   See Commonwealth v. Brown, 479 Mass.

600, 610 (2018).   "We consider the strength of the

Commonwealth's case, the nature of the error, the significance

of the error in the context of the trial, and the possibility

that the absence of an objection was the result of a reasonable

tactical decision."   Azar, supra.   We recognize that we must

closely scrutinize this risk where, as here, "the elements of a

crime are erroneously stated in the jury charge."     See id.

    Having evaluated this case with that close scrutiny, we are

confident that the jury's verdicts would have been the same had

the judge correctly instructed the jury on how to proceed if

they found that the victim initially consented to sexual

penetration and then withdrew her consent during intercourse.

The jury heard no evidence that the victim initially engaged in

consensual penile or digital sexual intercourse with the

defendant and then later withdrew her consent.    The defendant

testified that sexual intercourse was consensual at all times;

the victim testified that it was never consensual.    Although the

jury's decision to acquit the defendant of oral rape could

potentially mean that they credited the defendant's testimony
                                                                  22


that this form of intercourse was consensual,4 the defendant

testified that the oral intercourse came first.    A victim's

consent to oral intercourse does not necessarily imply his or

her consent to penile or digital intercourse.     In the absence of

any evidence that the victim withdrew initially granted consent

to penile or digital intercourse, we are persuaded that the lack

of an instruction on the matter "did not materially influence[]

the guilty verdict" (quotation and citation omitted).     See

Commonwealth v. Richardson, 479 Mass. 344, 354-355 (2018).

     2.   Admission of cocaine evidence.   Before trial, the

defendant filed a motion in limine to preclude the admission of

evidence concerning the cocaine found on his kitchen counter.

The defendant argued that, because there was no evidence that he

was under the influence of cocaine on the morning of October 14,

the cocaine evidence would be more prejudicial than probative.

The judge deferred ruling on the motion until he learned that

the defendant would testify in his own defense, and then ruled

that the evidence was admissible because there was "solid

indicia . . . of [cocaine] use that night" and because evidence


     4 The jury may also have had a reasonable doubt whether the
oral intercourse occurred at all. In contrast with the penile
and digital penetration, that charge was not supported by
physical evidence in the form of stains left by the victim's
blood on the defendant's hand, bed sheets, and underwear.
Furthermore, defense counsel suggested during trial that the
victim had not informed police officers or medical personnel
that she had been orally raped.
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of drug use was relevant to the defendant's "ability to perceive

. . . and recall events."

    After the defendant testified, the judge informed counsel

that, although he had initially admitted the cocaine evidence

"solely for the purpose of evaluating the defendant's ability to

. . . perceive and recall events," he was now also admitting it

for the purpose of evaluating the credibility of the defendant,

who during direct examination had denied using drugs that

evening and during cross-examination had denied recognizing the

white substance found on his kitchen counter.   The judge

instructed the jury that they could use this evidence "only for

purposes related to the defendant's credibility" and "the

defendant's ability to perceive and recall events as they took

place."   He forbade the jury from using the evidence to conclude

that "the defendant is of a bad character or is more likely to

commit crimes."   After the close of evidence, when the judge

charged the jury, he again instructed them that evidence

concerning cocaine could be used only for two purposes:     to

determine whether drug use affected a witness's ability to

perceive and recall events, and to assess the believability of

testifying witnesses.   Neither party objected to the judge's

limiting instruction.

    The defendant argues, and the Commonwealth concedes, that

it was error for the judge to allow evidence of drug use to be
                                                                    24


admitted for the purpose of assessing the defendant's memory

where there was no expert testimony regarding cocaine's effects

on one's ability to perceive and recall events.    We agree.    A

party that seeks to admit evidence of drug use for the purpose

of challenging a witness's ability "to perceive and to remember

correctly" is required to "show a connection between the drug

use and the witness's ability to perceive, remember, or testify

to the event" (citation omitted).   Commonwealth v. Alcantara,

471 Mass. 550, 565 (2015).   Where there is a lack of reliable

general knowledge regarding the relevant effects of a drug,

expert testimony is required to show that connection.    See

Commonwealth v. Gerhardt, 477 Mass. 775, 785-787 (2017) (expert

testimony required to establish effects of marijuana);

Commonwealth v. Lloyd, 45 Mass. App. Ct. 931, 933 (1998) (expert

testimony required to show Prozac's effect on ability to

perceive or remember events).

    Because the defendant did not object to the judge's

limiting instruction and objected to the admission of the

cocaine evidence only on the ground that it was more prejudicial

than probative because there was insufficient evidence of drug

use, we consider whether the error created a substantial risk of

a miscarriage of justice.    See Commonwealth v. Carlson, 448

Mass. 501, 506 (2007) ("Where the defendant advanced precise

grounds at trial in support of his objection, he may not rely on
                                                                    25


a different ground in his appeal"); Commonwealth v. Perez, 405

Mass. 339, 342 n.3 (1989), citing Commonwealth v. Freeman, 352

Mass. 556, 563-564 (1967) (where objection below was on grounds

different from those raised on appeal, court considers whether

error created substantial risk of miscarriage of justice).     We

conclude that it did not.   There was no evidence that drugs

played any role in the events of October 14, and neither

attorney mentioned the cocaine in closing argument.   See

Commonwealth v. Niemic, 472 Mass. 665, 673 (2015) (although

cross-examination on particular issue was improper, "prosecutor

did not mention the matter in his closing argument, thus keeping

any prejudice at a minimum").   Furthermore, where the jury

acquitted the defendant of one of the three rape charges, we

conclude that it is unlikely that the drug evidence was given

significant weight in the jury's evaluation of the defendant's

testimony or culpability.   See Commonwealth v. McCoy, 456 Mass.

838, 844 (2010) ("acquittals on two indictments indicate an

unbiased jury"); Commonwealth v. Delaney, 425 Mass. 587, 595

(1997), cert. denied, 522 U.S. 1058 (1998) (where jury acquitted

defendant of certain charges, it was "clear that the jury

carefully considered the evidence with regard to each crime

charged").5


     5 The Commonwealth argues that the cocaine evidence was
properly admitted to impeach the defendant's credibility, and
                                                                26


    Conclusion.   For the reasons stated above, we affirm the

defendant's convictions.

                                   So ordered.




points out that there was no objection to the admission of the
evidence for this purpose. Defense counsel, however, questioned
the witness about cocaine -- subjecting the witness to later
impeachment -- only after the judge ruled that cocaine evidence
was admissible for the purpose of determining the defendant's
ability to recall and perceive events. Because we conclude that
the judge's error did not create a substantial risk of a
miscarriage of justice, regardless of whether the cocaine
evidence otherwise would have been admitted, we need not decide
whether that evidence was properly admitted for impeachment
purposes.
