Economou v. Pepe

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 02-2390

GEORGE ECONOMOU,

Petitioner, Appellant,

v.

PETER A. PEPE, JR.,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Lipez, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.

Dana A. Curhan for appellant.
Linda A. Wagner, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, and Cathryn A. Neaves, were on brief
for appellee.

May 18, 2004
 CAMPBELL, Senior Circuit Judge. Appellant, George

Economou, was charged by the Commonwealth of Massachusetts with

sexual offenses that he had allegedly committed against two of his

daughters. A Middlesex Superior Court jury found him guilty on

several counts, including rape of a child under sixteen (statutory

rape of his daughter Martha) in violation of Mass. Gen. Laws ch.

265, § 23, rape of a person aged sixteen or over (Martha) in

violation of Mass. Gen. Laws ch. 265, § 22(b), assault with intent

to rape (Martha) in violation of Mass. Gen. Laws. ch. 265, § 24,

indecent assault and battery on a child under age fourteen (his

daughter Virginia) in violation of Mass. Gen. Laws ch. 265, § 13B,

and indecent assault and battery on a person aged fourteen or over

(Martha) in violation of Mass. Gen. Laws ch. 265, § 13H. Appellant

was sentenced to multiple concurrent life sentences. Appellant

appealed from his convictions, and the Massachusetts Appeals Court

affirmed in a memorandum pursuant to Mass. App. Ct. R. 1:28.

Commonwealth v. Economou, 46 Mass. App. Ct. 1122 (1999).

Thereafter, appellant filed a petition for rehearing in the Appeals

Court and an application for further appellate review in the

Supreme Judicial Court. Both were denied, exhausting appellant's

state remedies. Commonwealth v. Economou, 429 Mass. 1107 (1999).

On May 26, 2000, appellant brought the instant petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the

United States District Court for the District of Massachusetts

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challenging, in essence, the adequacy of the evidence upon which

his convictions for the statutory rape, rape, and assault with

intent to rape his daughter, Martha, were based. On November 6,

2001, the federal magistrate judge issued a report and

recommendation that the petition be denied. On August 26, 2002,

after objections had been filed, the district judge issued an order

denying the petition. On September 25, 2002, appellant filed an

application for a certificate of appealability, which the district

court allowed. This appeal followed.

Background

Both parties adopt the version of the facts set forth by

the Massachusetts Appeals Court in its unpublished affirmance,

except appellant denies any assumption therein that his daughter

Martha's age at the time of the alleged sexual intercourse was

below sixteen years. Our brief factual summation in this part of

the opinion rests upon the Massachusetts Appeals Court's

description of the facts. We reserve until later the question of

whether the evidence sufficed to show that Martha was under age

sixteen when intercourse occurred.

Appellant lived with his second wife and four children,

Martha, Anthony, Jenny, and Virginia,1 in Billerica, Massachusetts.

On various occasions, appellant whipped and struck his daughters.

His sexual molestation of Martha began in 1982 when Martha was

1
The names of the victims are pseudonyms.

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about twelve years old and continued while appellant's second wife

was hospitalized. According to Martha, appellant would touch her

breasts, thighs, and vagina and kiss her on the mouth and breasts.

When Martha was fifteen years old, appellant began having penile

intercourse with her. On some occasions, appellant would insert

his penis in Martha's anus until she cried, at which time he would

cease and would proceed to have penile intercourse with her.

Eventually, appellant separated from his second wife and

moved to Lowell, Massachusetts with the children. Thereafter, he

began a relationship with another woman, and the sexual

relationship with Martha (then age twenty-four) ended. Also,

Martha began dating her future husband, Richard, leading to two

physical assaults upon her by appellant. During the next two

years, on three occasions appellant sexually assaulted his then

twelve-year-old daughter, Virginia.

In April of 1996, after an investigation by the Lowell

Police Department and the Department of Social Services ("DSS"),

Martha and Virginia disclosed appellant's physical and sexual

abuse. This disclosure and the subsequent DSS investigation led to

appellant's arrest and indictment.

Discussion

Appellant raises two issues. First, he argues that the

evidence was insufficient to convict him of the statutory rape

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counts2 because no rational trier of fact could have found proof of

guilt beyond a reasonable doubt that Martha was under age sixteen

when the penile-vaginal penetration commenced. Secondly, he argues

that the evidence was insufficient to convict him of rape and

assault with intent to rape after Martha reached age sixteen

because the evidence did not establish that he had engaged in or

attempted intercourse by compelling Martha to submit to the sexual

acts either by force and against her will or by threat of bodily

injury.

There are two potential bases for granting an application

for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court: (1) the state

adjudication resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States; or (2) the state adjudication resulted in a decision that

was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding. 28 U.S.C. §

2254(d); DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001).

Under the second criterion, the federal court must

presume that the state court's determination of factual issues is

correct, and petitioner carries "the burden of rebutting the

2
The statutory rape counts for which appellant was convicted
were based only on the allegation that appellant had engaged in
intercourse with Martha.

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presumption of correctness by clear and convincing evidence." 28

U.S.C. §§ 2254(d)(2) & (e)(1).

In cases such as this, we review de novo the district

court's denial of habeas relief. Nadeau v. Matesanz, 289 F.3d 13,

15 (1st Cir. 2002).

Appellant concedes in his appellate brief that a proper

application of the tests traditionally applied by the Massachusetts

courts to determine the sufficiency of the evidence will also

satisfy the requirements laid down in Jackson v. Virginia, 443 U.S.

307, 317-19 (1979) (stating, upon reviewing a habeas petition,

"[t]he relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt."). He contends, however, that the Massachusetts

Appeals Court allowed his conviction to stand on what under both

state and federal criteria would amount to less than proof beyond

a reasonable doubt. To have done so, he contends, is objectively

unreasonable, causing the decision of the state court to lie

"outside the universe of plausible, credible outcomes." Compare

McCambridge v. Hall, 303 F.3d 24, 37 (1st Cir. 2002) (overruling

this stringent standard in favor of more lenient interpretation of

the "unreasonable application" requirement of 28 U.S.C. § 2254).

As did the district court and the Massachusetts Appeals Court,

however, we hold that sufficient evidence was adduced in the

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Massachusetts trial court to have allowed a rational trier of fact

to find the elements of the crime beyond a reasonable doubt. See

Jackson, 443 U.S. at 319. Accordingly we deny the petition for

habeas relief.

A. Statutory Rape.

Appellant argues that the only evidence supporting the

allegation that he had sexual intercourse with Martha before she

was age sixteen was Martha's testimony that appellant began having

penile intercourse with her when she was "around fifteen." This

testimony, appellant adds, was from a remove of almost ten years.

We need not decide whether this testimony, alone, is

sufficient because Martha's testimony and the surrounding evidence

provides additional verification that she was under sixteen years

old at the time of intercourse. The Massachusetts Appeals Court

noted that Martha testified not only that she was "about fifteen"

when this intercourse first occurred, but also that she remembered

she was a student at St. Joan D'Arc Junior High School when

intercourse had commenced. The record shows that Martha did not,

in fact, reach age sixteen until she had left that school. As the

Appeals Court noted, the evidence indicates Martha began first

grade in the fall of 1976 when she was six years old. If so, it

was in the fall of 1982 that she entered St. Joan D'Arc Junior

High, where she remained for three years, repeating one of the

grades. She was thus well under age sixteen throughout her

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enrollment there. This conclusion is also supported by Martha's

testimony that she graduated from the high school in 1989, a fact

making her fifteen years old or even younger by the time she left

St. Joan D'Arc (her birthday was on July 1). Based on the trial

transcript, therefore, we conclude that on the evidence presented

a rational trier of fact could have determined beyond a reasonable

doubt that Martha was under age sixteen at the time she left St.

Joan D'Arc Junior High in the summer of 1985; that intercourse had

commenced while she was still at that school; and that she was thus

under age sixteen at the time. Accordingly, we, like the district

court, conclude that there was sufficient evidence. Jackson, 443

U.S. at 319.

As to the second criterion, the result is the same.

Appellant has not presented clear and convincing evidence that

rebuts the Appeals Court's decision. 28 U.S.C. §§ 2254(d)(2) &

(e)(1).

B. Rape and Assault with Intent to Rape.

To obtain a conviction of forcible rape under

Massachusetts statutory law, the Commonwealth must show that the

intercourse was obtained by appellant's "compell[ing]" the victim

to "submit by force and against his will" or "by threat of bodily

injury." Mass. Gen. Laws ch. 265, § 22(b). Here, the Commonwealth

relied on a theory of constructive force. The "force needed for

rape may, depending on the circumstances, be constructive force, as

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well as physical force, violence, or the threat of bodily harm."

Commonwealth v. Caracciola, 569 N.E.2d 774, 777 (Mass. 1991). In

discussing the word "force" as used in robbery, the Supreme

Judicial Court said that "actual force is applied to the body,

constructive force is by threatening words or gestures and operates

on the mind." Commonwealth v. Novicki, 87 N.E.2d 1, 4 (Mass.

1949). Where, as here, the Commonwealth relies on constructive

force, it also must prove that the sexual intercourse was against

the will of the complainant. Caracciola, 569 N.E.2d at 777.

Petitioner argues that the Commonwealth presented

evidence only that Martha had some unexpressed reservations and

hindsight regrets at having engaged in sexual intercourse with her

father but that it failed to provide evidence that, while the acts

were happening, Martha communicated to appellant her lack of

consent and that the acts were against her will. Accordingly,

petitioner contends, the Commonwealth did not satisfy its burden of

proving that the acts were non-consensual, and the Appeals Court

did not apply the Jackson standard correctly when it affirmed the

conviction under these two counts.3

We find, however, sufficient evidence to support the

jury's verdict based on a theory of constructive force.

3
The Appeals Court noted that this element was also an
element for the assault count.

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 First, Martha's testimony supports a finding that her

father's sexual acts were against her will when they occurred.4

She testified that she tried to keep her legs shut but he would

force them open, that, in an effort to resist him, she wore

4
In his brief, appellant, like the Appeals Court, equates
the element of lack of consent with the element that the sexual
intercourse was against the will of the complainant. In
Caracciola, the Supreme Judicial Court discussed at length the
elements of proving rape by constructive force, making note of
the additional requirement in such cases that the intercourse be
against the complainant's will. 569 N.E.2d at 776-78. It did
not explicitly require that, in addition to proving that the
intercourse was against the complainant's will, the Commonwealth
prove that there was no consent. Id. Indeed, it implied that
the inquiries are identical:
We previously have recognized that a defendant can be
guilty of rape without having used or threatened
physical force if the consent of the complainant was
obtained from the victim's fear arising from threats or
conduct of a third party. . . . These cases are cited
to illustrate the point that an examination of the
circumstances or fear in which the victim is placed,
the impact of those circumstances or fear on the
victim's power to resist and the defendant's conduct
all are relevant to the determination of whether
conduct complained of by the victim was accomplished by
force and against the victim's will.
Id. at 776. In Commonwealth v. Lopez, however, the court stated,
"the Commonwealth must demonstrate beyond a reasonable doubt that
the defendant committed sexual intercourse (1) by means of
physical force, nonphysical, constructive force, or threats of
bodily harm, either explicit or implicit and (2) at the time of
penetration, three was no consent." 745 N.E.2d 961, 965 (Mass.
2001) (emphasis added). There, however, the court appears to be
discussing the "force" element of constructive force divorced
from the "will" requirement. Id. For present purposes, we see
no meaningful difference between determining whether the evidence
was sufficient to establish that the sexual intercourse was
against Martha's will and determining whether it occurred without
her consent at the time of intercourse.

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clothing to bed that would be difficult for him to remove, that she

would turn away from him and pretend to be asleep when he looked

into her bedroom in the hope that he would not come in, and that

she cried when he performed anal sex. Furthermore, she testified

to telling him at various times she wanted him to stop.

Q: Did you ever tell your father that you
didn't want to have vaginal sex?

A: Yes, I did.

Q: And did he not do it then?

A: No, he did.

Q: He always did it then anyway?

A: Yes, he did because there was a couple of
times that I would say, "I don't want to do
this no more," or whatever and he'd -- he
would get upset and he'd start screaming at me
and he was just -- I don't know. He was just
mean. I was always scared of him.

Q: So you'd do it then; is that right?

A: Yes.

Q: He'd persuade you to; is that right?

A: Yes.

The evidence need not prove that, during each incident, Martha

voiced disapproval and appellant threatened her. Commonwealth v.

Kirkpatrick, 668 N.E.2d 790, 795 (Mass. 1996) (stating, "The

Commonwealth was not required to prove that the defendant renewed

threats of physical harm every time he approached the victim to

establish that the rapes were accomplished by force and against the

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victim's will.") (citations omitted). There was no evidence she

ever welcomed or sought his advances. In his own trial testimony

on direct examination, appellant did not deny Martha's testimony

concerning the sexual acts, much less suggest that they had

resulted from her solicitation.5

The record evidence also establishes that there were

threats and violent conduct that a jury could reasonably find to

instill fear in the complainant and explain her failure to oppose

appellant's advances more actively. See Caracciola, 569 N.E.2d at

777. Martha testified she was scared of her father and feared his

angry outbursts and the possibility that he would become physically

violent if she resisted his assaults. She testified:

Q: Now, during all of those [occasions when
your father would have sexual intercourse with
you] would your father say anything to you?

A: Yeah. He would say -- he would come in,
and after he was done he would ask me, "Are
you okay?" or whatever, and I'd be like,
"Yeah, I'm fine." I'd just turn over, you
know, because I was scared. Like if -- like
when he'd ask me, "Oh, is it all right
tonight?" or whatever, and if I'd say no he
would get outraged. He would get wicked mad
and he'd, like, start swearing at me, shut --
slam my door or whatever. I was scared to say
no to him. So, you know, after -- I mean it
happened for so long after -- as the years
went on it was just, like, I felt there was no

5
On cross-examination, appellant agreed that when he spoke
to Inspector Dillon and later to a Ms. Jenkins, he had denied
sexually touching the children. He was not asked on direct
examination whether he had engaged in the conduct testified to by
Martha, nor, except as just described, was that issue mentioned
by him during his testimony.

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 use to stand up. I would get nowhere, you
know what I'm saying? It would just happen.

She further testified:

A: Oh, he would call me names and swearing at
me, calling me a whore or, you know, just --
he would swear a lot. When he'd yell he'd
swear a lot to me.

Q: And how did that make you feel during that
period of time?

A: He'd scare me. Just he made me feel scared
and he just, I'd just be quiet and just sit
there because if I ever said anything, you
know, it would just make him raise his voice
even more or, you know.

Appellant would sometimes commit sexual acts upon Martha after

drinking alcohol, at which time, she testified, he would get

particularly upset if she resisted. Further, the evidence of

record provides a reasonable basis for Martha's fears of physical

violence. Commonwealth v. Guisti, 747 N.E.2d 673, 678 (Mass. 2001)

(stating, "It is sufficient that the Commonwealth prove that the

victim reasonably feared that he defendant would harm her if she

did not submit."). There was evidence appellant struck Martha's

sister, Jenny, in Martha's presence. Jenny was the one daughter

who, it was testified, stood up to appellant. Martha testified:

Q: And on those occasions when [Jenny] would
speak up [against appellant] what would
happen?

A: My father would get upset with her. Either
hit her or scream at her, or you know, "You
listen to me," or, you know.

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 Q: Now, when you say that he would hit her,
where would he hit her?

A: Like, he would, like, slap her in the face
. . .

While appellant used physical force against Martha less frequently,

she testified that he had resorted to physical violence against her

on three occasions -- one that occurred prior to the episodes of

sexual misconduct and two that occurred a couple of months after

the sexual misconduct ended. According to this testimony, the

first incident occurred while she was in elementary school.

Appellant learned that she had lied to him, so he forced her to

take her clothes off and stand on a bed as he whipped her with a

belt. The latter two incidents of physical violence occurred in

1995 when Martha was twenty-four years old and had begun dating her

future husband, Richard. She testified that appellant punched her

in the face and violently shoved her inside a van after she had

gone to the movies with Richard. In the other incident, according

to her testimony, appellant and Martha were in an argument about

Richard which resulted in appellant putting his hands to Martha's

throat as if to strangle her. While these two latter incidents

occurred after appellant had ceased his sexual misconduct with

Martha, they fit into a pattern showing appellant's readiness to

use force against his daughters if thwarted. From all this

evidence, the jury could reasonably conclude that Martha had had

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reason to fear physical violence if she took a more active stance

in rejecting her father's sexual advances.

In considering whether Martha was intimidated, the jury

could also take into account that appellant was her father, that

her stepmother was infirm and unable to protect her, and that, even

after reaching the age of sixteen, Martha was poorly positioned to

stand up to her father's insistent advances. The surrounding

circumstances gave appellant a considerable degree of moral and

physical control over her. See Caracciola, 569 N.E.2d at 776

(inquiry includes "an examination of the circumstances or fear in

which the victim is placed, the impact of those circumstances or

fear on the victim's power to resist and the defendant's

conduct."). Martha's father appears to have been the dominant

figure in the household. Martha's stepmother was often ill.

Martha lived with appellant "practically [her] whole life." She

began working at his pizza restaurant when she was twelve years old

and continued working until she was twenty-four years old. She had

no other family in the United States with whom to seek refuge. She

testified, "I never had the courage to move out of the house. I

never had a job on my own other than working at the restaurant with

my family. You know, I didn't have friends . . . ." Appellant's

sexual acts with Martha began when she was age twelve -- at a time

when she was legally incapable of consenting and could be found by

a jury to be both helpless and particularly impressionable. These

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facts, together with others previously discussed, could be

determined by the factfinder to have impaired Martha's will and

ability to resist her father's advances after she had reached the

age of legal consent.

Accordingly, like the Appeals Court, we find the record

sufficiently establishes that Martha's submissions to appellant

were obtained by the power and authority he wielded over her,

coupled with her fear of the consequences if she did not submit.

Because he dominated both her home and work life, her reluctance to

actively resist his conduct did not demonstrate consent but rather

could be found to have established that she was powerless to stop

him even though the acts were against her will. On this record,

the Appeals Court's determination is not objectively unreasonable.

Since appellant is unable to point to clear and convincing evidence

that the actions were not against Martha's will, the second

exception does not apply. 28 U.S.C. § 2254(d).

Affirmed.

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