Commonwealth v. Sullivan
992 N.E.2d 380
Mass. App. Ct.2013Background
- On Sept. 28, 2007, at ~9:30 p.m. R.M. walked alone near MIT; defendant in a car swerved toward her, called to her to "talk," and she moved away.
- Defendant exited his car twice (engine running, door open), approached R.M., persisted after she declined, then followed her into a dimly lit street, stopped, got out, came within arm’s length, and angrily ordered her to "get in the car." R.M. recited his license plate; he left.
- Jury convicted defendant of attempted kidnapping (G. L. c. 274, § 6) and of accosting/annoying a person of the opposite sex (G. L. c. 272, § 53); acquitted of assault with intent to kidnap.
- Defendant moved for a new trial and to vacate the attempted-kidnapping conviction (denied); appeals consolidated with direct appeal.
- Trial record supported that defendant left engine running and car door open, reversed direction to follow R.M., cornered her on a dim street, and demanded she enter his car.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted kidnapping — intent and overt act | Evidence showed intent to confine (enticing her into car), use of constructive force, and overt acts near completion | Conduct was social ineptitude; no threatening gestures, no intent, no overt act toward confinement | Affirmed: evidence sufficient to prove intent to confine, constructive force, and overt act near completion |
| Sufficiency of evidence for G. L. c. 272, § 53 (annoying/accosting opposite sex) | Conduct was offensive and disorderly in context and intended to accost/annoy | Conduct lacked sexual content and did not meet statutory "offensive" definition | Reversed: evidence insufficient because conduct, though offensive generically, lacked sexual/"offensive" character required by statute |
| Motion to vacate attempted-kidnapping conviction (inconsistency with acquittal) | N/A (court examined jury instructions and relationship between offenses) | Claimed legal inconsistency because assault with intent to kidnap was treated as lesser-included and acquittal conflicts with conviction | Denial affirmed: no legal inconsistency; jury instructions were proper given the evidence |
| Ineffective assistance of counsel | N/A (Commonwealth defended adequacy) | Alleged multiple trial counsel failures deprived fair trial | Denial affirmed: even assuming some errors, defendant failed Saferian prejudice showing |
Key Cases Cited
- Commonwealth v. Rivera, 460 Mass. 139 (intent to forcibly or secretly confine satisfies attempted kidnapping)
- Commonwealth v. Latimore, 378 Mass. 671 (standard of review on sufficiency of evidence)
- Commonwealth v. Bell, 455 Mass. 408 (overt-act requirement for attempt)
- Commonwealth v. Peaslee, 177 Mass. 267 (classic statement on attempt/overt act)
- Commonwealth v. Brown, 66 Mass. App. Ct. 237 (definition of confinement as restraint of movement)
- Commonwealth v. Lent, 46 Mass. App. Ct. 705 (defining confinement)
- Commonwealth v. Banfill, 413 Mass. 1002 (no intent where defendant did not open door or move toward victim)
- Commonwealth v. Titus, 32 Mass. App. Ct. 216 (constructive force can suffice for forcible confinement)
- Commonwealth v. Cahill, 446 Mass. 778 (definition of "offensive" conduct under § 53)
- Commonwealth v. Chou, 433 Mass. 229 ("disorderly" construed to include threatening conduct)
- Commonwealth v. Feigenbaum, 404 Mass. 471 (construction of disorderly/§ 53 context)
- Commonwealth v. Moran, 80 Mass. App. Ct. 8 (sexualized conduct as offensive under § 53)
- Commonwealth v. Grace, 397 Mass. 303 (standard of review for postconviction counsel claims)
- Commonwealth v. Saferian, 366 Mass. 89 (standard for ineffective assistance; prejudice requirement)