This week the Massachusetts Supreme Judicial Court issued its opinion in Commonwealth v. Rivera, SJC – 10802 Commonwealth v. Rivera, a case in which the defendant was convicted of attempted kidnapping. The facts presented in Rivera are as follows:
In early September of 2008 in the afternoon a boy was walking on a busy street in Dorchester. The boy was picking up a prescription for his mother. A car driven by the defendant came up next to him. The defendant told the boy to get into the car. The boy said no. He then went into the store to get the prescription. The entire incident took about two seconds. A witness saw the car. She took the defendant’s plate number. She then saw the boy leave the pharmacy. She asked him what happened and then she called the police. The police arrested Rivera. During an interrogation Rivera admitted that he wanted the boy to go back to his home and listen to some music. After the district attorney presented the prosecution’s case the defense moved for a required finding of not guilty. The motion was denied. The jury convicted Rivera. He was sentenced to two years in the Suffolk County House of Correction with six months to serve. He was also required to register as a sex offender.
Reversing the conviction the Massachusetts Supreme Judicial Court reasoned that the district attorney failed to present evidence sufficient to prove that Rivera had the intent to “forcibly or secretly” confine the boy, an element necessary to sustain a conviction for attempted kidnapping. The Court cited Commonwealth v. Banfill, 413 Mass. 1002, 1003 (1992), a case with similar yet more egregious facts still not sufficient to sustain a conviction for these charges. In Banfill, the defendant had interaction with a girl for a longer period of time; twenty five seconds. As in this case, the defendant in Banfill told the child to get in his truck.
The lone dissenter in this case stated that the defendant’s act of ordering the boy into his car with the admitted intention of taking him to his home satisfied the requirement of an overt act designed to “secretly confine” the boy. The dissent argued that the evidence could permit a jury to conclude that Rivera intended to abduct the boy. This was demonstrated by both his actions on Dorchester Avenue, the scene of the incident and his admission to police upon his arrest.
The Law Offices of Stephen Neyman handles Criminal Appeals throughout Massachusetts state and federal courts. A conviction by a jury or judge does not mean that your case is over. In this case, had Rivera not appealed his conviction he would have had to register as a sex offender.
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