Commonwealth v. Boris Castro.

• Court: Massachusetts Appeals Court
• Decided: September 17, 2025
• Docket: 24-P-1028
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1028

COMMONWEALTH

vs.

BORIS CASTRO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

was convicted of rape by unnatural sexual intercourse (rape by

finger) pursuant to G. L. c. 265, § 22 (b). On appeal, the

defendant argues, among other things, that the conviction should

be reversed because an erroneous constructive amendment to the

indictment took place at trial that led to the defendant being

convicted of a crime for which he was not charged. We reverse.1

1Because we conclude there was reversible error based on the constructive amendment to the indictment, we need not reach the defendant's other arguments contending that (1) the medical records were improperly redacted, (2) the prosecutor's closing argument improperly bolstered the victim's credibility, and (3) the judge abused his discretion by denying the defendant's request for jail credit. Background. A grand jury indicted the defendant on one

count of rape by "sexual intercourse" pursuant to G. L. c. 265,

§ 22 (b). The indictment did not state that the defendant was

charged with rape by unnatural sexual intercourse. The victim

testified before the grand jury that the defendant penetrated

her vagina with his penis but did not testify that he penetrated

her vagina with his fingers.

At trial, the victim testified that the defendant

penetrated her vagina with both his penis and his finger. The

verdict slip gave the jurors the option of finding the defendant

not guilty, finding the defendant guilty of rape (finger), or

finding the defendant guilty of rape (penis). The judge

instructed the jury to "check all that applied" and instructed

them that there were two ways the Commonwealth could prove that

the defendant had sexual intercourse with the victim -- by

inserting his penis or his fingers into her vagina. The

defendant did not object. The jury found the defendant guilty

of rape (finger).

Discussion. "A constructive amendment to the indictment

occurs when either the government (usually during its

presentation of evidence and/or its argument), the court

(usually through its instructions to the jury), or both,

broadens the possible bases for conviction beyond those

2 presented by the grand jury" (citation omitted). Commonwealth

v. Bynoe, 49 Mass. App. Ct. 687, 691 (2000). The defendant

argues that the constructive amendment of the indictment was

error because the trial evidence, jury instructions, and verdict

slip referred to an act of "unnatural sexual intercourse" when

the indictment alleged only "sexual intercourse," and the jury

convicted the defendant of the act of unnatural sexual

intercourse. We agree. In fact, the Commonwealth concedes that

a constructive amendment took place amounting to a substantive

amendment. An indictment may be amended as to form but not as

to substance. See Commonwealth v. Garcia, 95 Mass. App. Ct. 1,

4 (2019), citing Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979).

We conclude (and the Commonwealth agrees) that the defendant's

conviction must be reversed because the jury convicted the

defendant of a crime for which he was never indicted. See

Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995) ("Where there

is a substantial risk that the defendant was convicted of a

crime for which he was not indicted by a grand jury, we cannot

apply a harmless error standard"); Garcia, supra at 6

(defendant's rape of child conviction reversed where

constructive amendment was one of substance).

For this reason, the judgment is reversed, the verdict is

3 set aside, and judgment shall enter for the defendant.

So ordered.

By the Court (Englander, D'Angelo & Tan, JJ.2),

Clerk

Entered: September 17, 2025.

2 The panelists are listed in order of seniority.