Commonwealth v. Van Bell

The defendant was convicted by a jury of offering to engage in sexual conduct for a fee (solicitation), G. L. c. 272, § 53A, and attempted rape of a child, G. L. c. 274, § 6>1 2 The defendant appealed from his convictions, and we granted his application for direct appellate review. The defendant now contends that (1) his conviction of attempted rape of a child should be reversed because the Commonwealth presented insufficient evidence to prove that he committed an overt act establishing criminal liability for attempt; (2) his conviction of solicitation should be reversed because the statute does not criminalize third-party solicitations and is void for vagueness; (3) his conviction of solicitation was duplicative of his conviction of attempted rape of a child; (4) the judge erred in instructing the jury that a nod may constitute an affirmative response; and (5) his trial counsel was constitutionally ineffective. For the reasons that follow, we reverse the defendant’s conviction of attempted rape of a child and affirm his conviction of solicitation.3

1. Background. We recite the facts that the jury could have found, reserving the development of other facts to the discussion of specific issues.

On March 25, 2004, the vice squad of the Worcester police department conducted an investigation and “sting operation” *410focused on the defendant. Officer Patricia Cummings posed undercover as a prostitute offering her foster child4 for sexual services to the defendant.

Cummings was instructed to telephone a specific telephone number, ask for “Ron,” and indicate that she was the foster mother to a young child whom she would be willing to offer for sexual services in exchange for money. At approximately 10:49 a.m., Cummings telephoned the cellular telephone number, and the defendant answered the telephone, identifying himself as “Kerry.” She asked for “Ron,” and less than ten seconds later, “Ron” came to the telephone. Cummings believed “Ron” to be the same person who answered the telephone and identified himself as “Kerry.” The defendant admitted at trial that he pretended to be named “Ron” during this telephone call.

When the defendant came to the telephone, Cummings told him that her girl friend had given her the telephone number, and he said, “Yeah, she’s cool.” Cummings asked if she could meet him in person, and they agreed to meet later that morning at 11:15 a.m. at a Honey Farms convenience store in Worcester. When the defendant stated, “We don’t have to do this if the kid’s not going to be with you,” Cummings told him to postpone the meeting to 11:30 a.m., so that she could arrive with the child.

She then drove to the convenience store and waited for the defendant. Eventually, the defendant approached her car and said, “I found you.” When she got out of her vehicle, he told her that she did not fulfil the agreement because she did not bring a child with her to the meeting. He told her that she was “making it too hard for him,” and she said that she had never done this before.

Cummings and the defendant then walked to his vehicle, where she asked him for fifty dollars “for good faith.” The defendant refused to pay fifty dollars because she “did not have the kid.” When they got into the defendant’s vehicle, he stated, “I have a lot at stake, because I’m a professional.” Cummings responded that she also did not want to get into trouble.

The defendant then began to ask for details about Cummings’s foster child, including details about her age, demeanor, and sexual history. Cummings answered his questions and told him that she did not want the child to be injured, and asked him what *411he wanted to do. The defendant said he wanted “intercourse,” and said that he had done this before.

After these negotiations, the defendant asked where the child was located, and Cummings said she was on Elm Street by Elm Park. She told the defendant that she would drive there and he could follow. The defendant agreed, and then they negotiated a fee for the child. Cummings told the defendant she would not take less than $200. In response to this, the defendant nodded his head up and down.

At that point, Cummings stepped out of the defendant’s vehicle and walked toward her own vehicle. She gave a prearranged signal to other officers who were nearby, and they converged on the defendant’s vehicle as he began to pull out of his parking spot and turn toward the exit of the parking lot, in the direction of Elm Park.

The officers asked the defendant to get out of his vehicle, and then arrested him. At the Worcester police department, the officers found $211 in cash on his person. After receiving Miranda warnings and waiving his rights, the defendant discussed his attraction to younger girls with Sergeant Michael Cappabianca, and told him that he “was asking for a young girl and [Officer Cummings] said she had a five year old.”5

2. Sufficiency of the evidence of attempted rape of a child. The defendant argues that his conviction of attempt should be reversed because the Commonwealth failed to present sufficient evidence of an “overt act.” The defendant did not move for a required finding of not guilty, so we consider whether failure to file such a motion created a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001), quoting Commonwealth v. McGovern, 397 Mass. 863, 867 (1986) (“We consider the legal sufficiency of the evidence even if a defendant fails to move for a required finding of not guilty because ‘findings based on legally insufficient evidence are inherently serious enough to create a substantial risk *412of miscarriage of justice’ ”); Commonwealth v. Keita, 429 Mass. 843, 844 (1999). Because the defendant’s first claim of error involves the sufficiency of the evidence against him, we look at the evidence in the light most favorable to the Commonwealth, along with inferences that could reasonably be drawn.6 Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).

The crime of attempt is statutorily defined in G. L. c. 274, § 6. See note 1, supra. The elements required for a finding of attempt are (1) specific intent, (2) an overt act, and (3) nonachievement of the substantive crime. See Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990). This court has interpreted this statute consistently since the court’s opinion authored by Chief Justice Holmes in Commonwealth v. Kennedy, 170 Mass. 18 (1897), and Commonwealth v. Peaslee, 177 Mass. 267 (1901) (Peaslee), requiring a showing that the defendant, after preparing to commit the crime, has undertaken overt acts toward fulfilling the crime that “come near enough to the accomplishment of the substantive offence to be punishable.” Peaslee, supra at 271.7

In Peaslee, the court described two classes of cases of attempt. As to the first class, the court noted:

*413“The most common types of an attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption . . . or an act which is intended to bring about the substantive crime and would bring it about but for a mistake of judgment in a matter of nice estimate or experiment.... In either case the would-be criminal has done his last act.”

Id. at 271.

The court went on to address the other class, the problem area of cases that fell short of the “last act” category or cases that were still in the “preparations” stage. With respect to those cases, the court stated:

“[N]cw considerations come in when further acts . . . are necessary before the substantive crime can come to pass. In this class of cases there is still a chance that the would-be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other meaning. . . . That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a [crime] although there is still a locus penitentiae[8] in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite. Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897).” (Emphasis added and citation omitted.)

Peaslee, supra at 271-272.

The case now before us falls into that second class of cases *414and requires us to determine if the evidence of preparations taken by the defendant proceeded sufficiently close to the substantive crime to amount to an attempt. Factors to take into account in determining how proximate the overt act must be to the commission of the substantive offense are the gravity of the crime, the uncertainty of the result, and the seriousness of any threatened danger. Commonwealth v. Kennedy, supra at 22.9

We note that many States10 have adopted the Model Penal Code’s formulation for attempt — a less stringent formulation focusing on the actions taken by the defendant toward attaining the substantive offense rather than what the defendant had left to do before reaching the substantive crime.11 This formulation makes convictions easier to reach.12 Of course, “the creation of crimes is not for this court to determine, but for the Legislature. Our function is merely that of discovering the meaning of the words that the Legislature has used, bearing in mind that under the American system of law a citizen is not to be punished criminally unless his deed falls plainly within the words of the statutory prohibition, construed naturally.” Commonwealth v. Corbett, 307 Mass. 7, 8 (1940). Any reformulation of the statutory crime of attempt is a matter for the Legislature.13 See art. 30 of the *415Massachusetts Declaration of Rights.14 In Massachusetts, a defendant must have the present opportunity to commit the substantive crime. Accordingly, we look to the actions left to be taken, or the “distance or gap between the defendant’s actions and the (unachieved) goal of the consummated crime — the distance must be relatively short, the gap narrow, if the defendant is to be held guilty of a criminal attempt.” Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 258 (2001).

As previously stated, we must determine whether, under the facts of this case, the defendant’s actions were merely in preparation to commit the crime or if his actions constitute the crime of attempt. Here, the defendant met Cummings in a parking lot to arrange to have sex with a young child. He expressed his displeasure that the child was not in the car with Cummings. Cummings and the defendant then negotiated for sex with the child, coming to an agreement that she would provide her four year old foster daughter to him for sexual intercourse in exchange for $200. After reaching an agreement, she told the defendant to follow her to “Elm Street, by Elm Park,” where the child was waiting. He began to drive his vehicle out of the parking spot, turning in the direction of the exit nearest Elm Park, which was approximately one mile away.

However, even though Cummings and the defendant came to an agreement, he had yet to see a child and did not know the exact location of the child. He had yet to follow Cummings to any type of house or park, and he had not yet paid for the child. *416The preparation and negotiation, although sufficient to warrant a guilty verdict of solicitation, did not come near enough — in time or ability — to the substantive crime of attempted rape to sustain a guilty verdict. The defendant must have had “a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out.” Peaslee, supra at 273-274.

In Commonwealth v. Ortiz, 408 Mass. 463, 464-465, 472 (1990), this court’s most recent decision regarding the overt act requirement, we determined that where the defendant got into an automobile with a fully loaded firearm and drove to the neighborhood where a foe lived, circling the block six times in search of the person, and then drove home, there was evidence that the defendant “intended and prepared for an assault and battery by means of a dangerous weapon,” but there was not enough evidence to show an overt act that would render the defendant guilty of attempt. Similarly, in Commonwealth v. Hamel, supra at 256-260, the Appeals Court found that where the defendant solicited two “hitmen” to commit four murders, made partial payment, described the intended victims, and drew sketches of the home of three of the victims, these preparations did not constitute an overt act within the meaning of the statute that came close enough to the commission of the murders. In each case, the court required that the defendant be very near to the actual commission of the substantive crime in order to be found guilty of attempt. Although the evidence in the instant case is sufficient to show that the defendant intended and prepared for the rape of a child, it is not sufficient to show that he undertook an overt act that put him so near — in time or ability — to the completion of the crime as to be guilty of attempt.

The Commonwealth argues that in addition to the preparations, the defendant’s actions in agreeing to follow Cummings and driving his vehicle out of the parking space and into the parking lot facing the exit nearest to Elm Park are sufficient overt acts for the jury to find him guilty of attempted rape. We disagree. Under the statutory interpretation as set forth in Peaslee, Commonwealth v. Kennedy, supra, and Commonwealth v. Ortiz, supra, the defendant was not proximate enough to committing rape of a child to find him guilty of attempt. While the crime of *417rape of a child is a very grave crime, its commission was still far from certain. The defendant was more than a mile from a vague location — “Elm Street, by Elm Park” and he had not paid any money to Cummings. As in Commonwealth v. Ortiz, supra, the defendant did not know where exactly the child was located, as no evidence was presented that he knew where “Elm Street, by Elm Park” was located. In following Cummings, he could have decided to return to work and not commit the crime. In addition, there is no evidence that he had formulated a plan as to exactly where, or when, he would commit the crime.15

We conclude that the evidence presented by the Commonwealth of an overt act establishing attempt was not sufficient to survive a motion for a required finding of not guilty, had one been filed.16 Because the defendant’s conviction of attempted rape rests on insufficient evidence, we are confronted by circumstances that represent per se a substantial risk of a miscarriage of justice.17 See Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001). Accordingly, the defendant’s conviction of attempted rape of a child must be reversed.

3. Statutory prohibition on agreeing to pay for sexual intercourse with a child. In 2004, G. L. c. 272, § 53A, inserted by St. 1983, c. 66, § 2, defined the crime of offering or agreeing to engage in sexual conduct for a fee as follows:

“Any person who engages, agrees to engage, or offers *418to engage in sexual conduct with another person in return for a fee, or any person who pays, agrees to pay or offers to pay another person to engage in sexual conduct, or to agree to engage in sexual conduct with another natural person may be punished . . . .”

The defendant argues that the statute “only criminalized solicitations for sex between a customer and a prostitute in exchange for a fee” and that the defendant’s conduct, in agreeing to pay for sexual conduct with a third person, is not penalized under the statute. We disagree. While the solicitation statute was rewritten in 2006 to provide an additional penalty for one who makes an agreement specifically to pay for sexual intercourse with a child, the original statute also covers the defendant’s behavior, albeit with a lesser penalty.

The statute under which the defendant was prosecuted contains no language limiting its application, as suggested by the defendant, to a prostitute and a customer. Stated otherwise, the statute contains no express or implied limitation that the individuals who make the agreement engage in sexual conduct with each other. Commissioner of Correction v. Superior Court Dep’t of the Trial Court for the County of Worcester, 446 Mass. 123, 124 (2006), quoting International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983) (“primary source of insight into the intent of the Legislature is the language of the statute,” and “[statutory language should be given effect consistent with its plain meaning”). The second clause of the statute states that where person A pays, agrees to pay, or offers to pay person B for an agreement whereby person A can engage in sexual conduct with person C, person A may be punished. The defendant agreed to pay money to Cummings, in exchange for an agreement allowing the defendant to engage in sexual conduct with Cummings’s foster child. This is sufficient under the statute.

If the statute were limited as the defendant suggests, one who pays a “pimp” for sexual conduct with another could not be convicted under the statute. There is no indication that the Legislature intended such a limitation. “If the language of the statute is ‘fairly susceptible [to] a construction that would lead to a logical and sensible result,’ we will construe [it] so ‘as to make [it an] effectual piece of legislation in harmony with common sense *419and sound reason.’ ” Commonwealth v. Dale D., 431 Mass. 757, 760 (2000), quoting Commonwealth v. Williams, 427 Mass. 59, 62 (1998).18 Here, the defendant made an agreement to pay Cummings so that he could engage in sexual conduct with a child. We conclude that this conduct is covered under the language of G. L. c. 272, § 53A.

The defendant also argues that the solicitation statute is constitutionally void for vagueness. However, he failed to preserve the issue in a motion for a required finding of not guilty. Accordingly, we analyze whether any error creates a substantial risk of a miscarriage of justice. Commonwealth v. Oakes, 407 Mass. 92, 94-95 (1990). “A penal statute must ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983).

Here, the statute sufficiently informed the defendant that agreeing to pay money in order to have sexual intercourse with a young child was prohibited. The statute defines the criminal offense, and it is “improbable that any competent adult, informed by common sense, life experience, and contemporary values, would reach any different conclusion, or would be surprised to learn that the defendant’s words and deeds amounted to an offer to pay for a type of sexual conduct which § 53A proscribes.” Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 318 (1997) (finding that defendant should have known solicitation statute included sexually intimate contact). We conclude that G. L. c. 272, § 53A, is not unconstitutionally vague. There is no error.

4. Duplicative convictions. The defendant next argues that his convictions of solicitation and attempt were duplicative and violated his double jeopardy rights under the Fifth Amendment to the United States Constitution. Because we reverse the defendant’s conviction of attempted rape, only the conviction of solicitation remains. Accordingly, this argument is moot.

*4205. Response to jury question. During deliberations, the jury asked the judge, “Is a nod sufficient in the eyes of the Court to indicate an affirmative response?” The judge conferred with counsel, and suggested that he would instruct the jury that “whether there was a nod and, if so, whether it indicated an affirmative response, are factual issues, not issues of law, which are for you the jury to decide, based on all of the evidence and on the law as I’ve already given it to you.” Defense counsel objected, requesting that the judge also reinstruct the jury that “whether there was an agreement or offer is also a factual matter.” The instruction suggested by defense counsel was given by the judge at the close of trial, and the defense counsel did not object to the instruction. The judge responded that he would not reinstruct the jury as requested by defense counsel, but would answer only the question asked by the jury.

The defendant asserts that the judge’s supplemental instruction, without repeating the earlier, original instruction, may have misled the jury as to the evidence necessary to establish the presence of an agreement. We disagree.

“The proper response tq a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly.” Commonwealth v. Robinson, 449 Mass. 1, 7-8 (2007), quoting Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). If appropriate, the judge need only consider the question asked by the jury, and is not required to instruct on any other matters in response to the question. Commonwealth v. Amazeen, 375 Mass. 73, 82 (1978).

Here, the jury had already been instructed that whether there was an offer or agreement was a factual matter for them to decide. Their question asked only whether a nod may be sufficient to indicate an affirmative response. The judge noted that repeating the instruction on offer or agreement would go beyond the scope of the question; accordingly, he answered only the question asked by the jury. In Commonwealth v. Amazeen, supra at 82, this court held that the judge correctly responded to a question asked by the jury, and it was not error to decline to repeat portions of the main charge that were beyond the scope of the jury’s question. Because the supplemental instruction appropriately responded to the jury’s question, there was no abuse of discretion.

*4216. Ineffective assistance of counsel. The defendant next argues that trial counsel was constitutionally ineffective for (1) failing to object to the prosecutor’s line of questioning and argument regarding the defendant’s credibility; (2) failing to move for a required finding of not guilty on the attempted rape indictment19; and (3) failing to move for a required finding of not guilty on the solicitation indictment.

In assessing a claim for ineffective assistance of counsel, the court will look to “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A strategic decision by counsel will be deemed constitutionally ineffective only if it was manifestly unreasonable at the time it was made. Commonwealth v. Adams, 374 Mass. 722, 728-730 (1978).

The defendant’s first claim of error involves questioning and argument relating to the defendant’s credibility. During the defendant’s direct testimony, he testified that he did not agree with portions of Cappabianca’s report and testimony regarding their conversation after the defendant’s arrest. During cross-examination, the prosecutor asked the defendant about other portions of Cappabianca’s report and testimony with which he disagreed. The defendant argues that the prosecutor’s technique of confronting the defendant with specific postarrest statements that he failed to mention on direct examination was an inappropriate challenge to his credibility, and defense counsel should have objected and attempted to redirect. We disagree.

First, the defendant did not raise these claims of ineffective assistance of counsel in a motion for a new trial, which is the preferred method, as the trial record alone cannot explain the strategy of trial counsel. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Second, “[w]hen a defendant testifies on his own behalf, he exposes himself to cross-examination as would any *422witness.” Commonwealth v. Sleeper, 435 Mass. 581, 595 (2002), citing Jenkins v. Anderson, 447 U.S. 231, 236 (1980). The cross-examination followed a similar course as his direct examination and was designed to undermine the defendant’s credibility. The defendant cannot select the subjects on which he will be cross-examined. Here, the cross-examination was fair and the prosecutor’s argument was fairly grounded in the evidence.

The defendant also argues that defense counsel conceded that he made a mistake on direct examination, by saying, “[N]ow, shame on me, I didn’t ask my client line by line, ‘Well, sir, I’m going to read you this statement and you tell me what you disagree with,’ shame on me, okay, that I didn’t say, ‘Do you agree with this, do you agree with this,’ wasn’t he on the stand long enough, did we need any more questions, I didn’t think you did, but, you know, shame on me, if it’s my fault, it’s my fault, okay.” While the defendant argues that this “admission of error” rules out any tactical motive for the attorney’s conduct, based on the trial record, we perceive counsel’s remark as a backhanded comment that the prosecutor’s cross-examination was an exercise in nitpicking. Defense counsel may have had a tactical reason for making such a statement during his closing argument. However, regardless of defense counsel’s strategy, the decisions made by counsel — not to object to the prosecutor’s cross-examination or closing argument — do not appear unreasonable at the time they were made. “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made.” Commonwealth v. Ogden O., 448 Mass. 798, 806 (2007), quoting Commonwealth v. Adams, supra at 728. Because it was appropriate for the prosecutor to challenge the defendant’s credibility, defense counsel may have made a tactical determination that his objections would be overruled; as such, his decision not to object or seek a curative instruction was not manifestly unreasonable. See Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520 U.S. 1245 (1997) (“failing to pursue a futile tactic does not amount to constitutional ineffectiveness”). See also Commonwealth v. West, 312 Mass. 438, 440 (1942).

The defendant’s remaining claim of ineffective assistance is the defense counsel’s failure to move for a required finding of *423not guilty on the solicitation indictment. Because we have determined that the defendant’s conduct was included under the statute, defense counsel’s decision not to move for a required finding of not guilty does not constitute ineffective assistance of counsel.

7. Conclusion. For the foregoing reasons, the defendant’s conviction of attempted rape of a child is reversed and his conviction of offering or agreeing to engage in sexual conduct for a fee is affirmed.

So ordered.