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COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, ss. SUPERIOR COURT


No. HSCR2010-048

COMMONWEALTH

v.

AUSTIN RENAUD

COMMONWEALTH’S SUPPLEMENTAL OPPOSITION TO


DEFENDANT’S MOTION TO DISMISS

On February 22, 2011, at a hearing on the defendant’s motion to dismiss pursuant to


Commonwealth v. McCarthy, 385 Mass. 160 (1982), the Court raised the question of whether
there was evidence presented to the grand jury that the victim was less than 16 years of age at
the time of the offense. After considering the parties’ preliminary responses to this question, the
Court granted the parties additional time to address the issue. For the reasons that follow, the
Commonwealth contends that the grand jury did hear sufficient evidence from which they could
reasonably conclude that the victim was less than 16 at the relevant time.
On a motion to dismiss an indictment, the question is whether “the grand jury [heard] sufficient
evidence to establish the identity of the accused and probable cause to arrest him”
Commonwealth v. McCarthy, 385 Mass. at 163-164, a standard that “is considerably less
exacting than a requirement of sufficient evidence to warrant a guilty finding.” Commonwealth
v. O’Dell, 392 Mass. 445, 450 (1984). When applying this standard, a Court must view the
evidence before the grand jury in the light most favorable to the Commonwealth. See
Commonwealth v. Levesque, 436 Mass. 443, 444 (2002). The Court should also consider that
in executing their function, grand jurors are entitled to rely on their common knowledge, see id.,
at 454, and to draw reasonable inferences. See Commonwealth v. Roman, 414 Mass. 642,
647-648 (1993).
At page 102 of the Grand Jury minutes, the testifying detective recounted a statement that the
victim’s mother had provided to law enforcement officials shortly after her daughter Phoebe’s
death [G.J., pp. 102, 115-116]. According to the mother, “In July 2009 I moved to a residence in
South Hadley… with my two daughters, Phoebe (age 15) and XXXX (age 11).” The
Commonwealth acknowledges that this is the only direct reference to the victim’s age in the
entire Grand Jury presentation. Although this reference appears in a sentence reciting an
earlier event (i.e., the family’s move to South Hadley), a fair and reasonable interpretation is that
this reference to the victim’s age correlates with the time at which the mother gave her
statement, rather than with the time the family moved to South Hadley. This is so for several
reasons.
First, the statement contains the present-tense form of the word “age.” If the references were
intended to document the girls’ ages at the time of the move, that portion of the sentence would
more properly have read: “…with my two daughters, Phoebe (then aged 15) and XXXX (then
aged 11).”
In addition, the daughters’ ages appear in parentheses. “Parentheses, or marks of parenthesis,
are used to set off a word, phrase, or sentence which is inserted by way of comment,
explanation, translation, etc., in a sentence but which is structurally independent of it.”
Lumbermens Mut. Casualty Co. v. Younger, 158 So. 2d 341, 342 (La. App. 1963), quoting
Webster's New Collegiate Dictionary 1151 (1959 ed.). This structural independence is
especially apparent where, as here, the parentheticals are used in conjunction with the initial
mentioning – and identification – of the girls. Such parenthetical information provides
“supplementary, explanatory, or interpretative” information about the girls themselves, not the
other portions of the sentence. Id. at 342 n.1, quoting The Macmillan Handbook of English 313
(4th ed., 1960) (“Parentheses are used to enclose material that is supplementary, explanatory,
or interpretative”).
Finally, the evidence before the grand jury established that the victim was a high school
freshman during the 2009-2010 academic year. [See, e.g., Grand Jury Exhibit 1]. Grand jurors
are entitled to rely on their common knowledge, see Levesque, 436 Mass. at 454, and as the
Appeals Court has observed, it is “a matter of common knowledge that most students complete
high school at the age of seventeen or eighteen.” Johnson v. Brockton, 8 Mass. App. Ct. 80, 83
(1979) (citation excised) (emphasis added). Deductively, it is therefore a matter of common
knowledge that most students complete their freshman year of high school at age fourteen or
fifteen. Cf. Benefield v. Bd. of Trs. of the Univ. of Ala. at Birmingham, 214 F. Supp. 2d 1212,
1219 (N.D. Ala. 2002) (“The court takes judicial notice that most college freshmen are 18 years
old, and quite often 17 years old.”). Consequently, the grand jurors could have readily and
reasonably concluded that the reference to the victim being “age 15” related to her age at the
time of the mother’s statement, not her age in July 2009. To the extent the reference was
somewhat ambiguous or capable of varying interpretations, any ambiguity should be resolved in
the light most favorable to the Commonwealth. See Levesque, 436 Mass. at 444.
Although it would have been preferable for the grand jury to have learned the victim’s date of
birth (which would have conclusively proven that she was fifteen at the time in question, and
that, due to her untimely death, she never attained the age of sixteen), the evidence before the
grand jury, and the reasonable inferences that could be drawn from it, was sufficient to establish
the age element of the crime of statutory rape.
For these reasons, the Commonwealth respectfully requests that this Honorable Court deny the
defendant’s motion to dismiss.

Respectfully submitted
for the Commonwealth,

DAVID E. SULLIVAN
NORTHWESTERN DISTRICT ATTORNEY
By His Assistant:

______________________________
Assistant District Attorney
Northwestern District
1 Gleason Plaza
Northampton, MA 01060
(413) 588-4271

Certificate of Service

I hereby certify that a copy of the foregoing was this day served upon counsel for the
defendant via facsimile.

______________________________
Assistant District Attorney
Northwestern District

Dated: February 24, 2011