Commonwealth v. Hercules Teixeira.

• Court: Massachusetts Appeals Court
• Decided: January 13, 2025
• Docket: 20-P-0832
• Status: Unpublished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

20-P-832

COMMONWEALTH

vs.

HERCULES TEIXEIRA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury found the

defendant, Hercules Teixeira, guilty of four counts of indecent

assault and battery on a child under the age of fourteen, G. L.

c. 265, § 13B, and one count of assault of a child under the age

of sixteen with intent to rape, G. L. c. 265, § 24B. 1 We

conclude that testimony that the defendant attempted to insert

his penis into the victim's mouth provided sufficient evidence

of the defendant's intent to rape. Further concluding that the

1The defendant was indicted on two counts of assault of a child under the age of sixteen with intent to rape, G. L. c. 265, § 24B, as part of two separate indictments returned on February 2 and June 22, 2017. The Commonwealth entered a nolle prosequi as to the first count of assault with intent to rape a child because the second charge was a replacement for the first. convictions are not duplicative and that a specific unanimity

instruction was not required, we affirm.

Discussion. 1. Evidence of intent to rape. The defendant

claims there was insufficient evidence to prove that he had a

specific intent to rape the victim as required under G. L.

c. 265, § 24B. When reviewing a claim that challenges the

sufficiency of the evidence, "we ask whether, taking the

evidence and all reasonable inferences that may be drawn

therefrom in the light most favorable to the Commonwealth, any

rational trier of fact could find that each of the essential

elements of the crime has been proved beyond a reasonable

doubt." Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1,

3 (2021), citing Commonwealth v. Latimore, 378 Mass. 671, 677-

678 (1979). "Proof of an essential element of a crime may be

based on reasonable inferences drawn from the evidence, but it

may not be based on conjecture." Commonwealth v. Combs, 480

Mass. 55, 61-62 (2018).

"The two elements of assault with intent to rape are an

assault on the victim and a specific intent by the defendant at

the time of the assault to rape the victim." Commonwealth v.

Martin, 447 Mass. 274, 287 n.9 (2006). "[I]ntent to rape may be

inferred from various facts viewed in context of the

circumstances, including a struggle between the assailant and

the victim, the grabbing or tearing of garments, the absence of

2 any other motive for the defendant's actions, the assailant's

acts of placing the victim in a compromising position, and the

location of the assault being a secluded area." Commonwealth v.

Zemtsov, 443 Mass. 36, 41 (2004). At trial, the victim

testified that when she and the defendant were alone in his

house, the defendant told her that she "should mess with him"

and that "young girls are good for older guys." At various

moments, the defendant rubbed his genitals against her buttocks,

kissed her neck and breasts, and put his hand into the waistband

of her pants and touched just above her pubic area. The victim

further testified that the defendant tried to put his penis into

her mouth, and she repeatedly told him to stop and moved her

head to keep her mouth away from his penis. After the defendant

asked the victim to "jerk him off" and she refused, he became

angry and masturbated until he ejaculated on her neck, shoulder,

and clothing. This evidence was sufficient to support a finding

of his specific intent to rape. See Commonwealth v. Lahens, 100

Mass. App. Ct. 310, 314-315 (2021) (defendant's "prior

conspicuous sexual advances coupled with the sexual nature of

the assault was sufficient evidence of intent to rape");

Commonwealth v. Brattman, 10 Mass. App. Ct. 579, 582 (1980)

(evidence that defendant forcibly tried to kiss victim and touch

her breasts and body proved intent to rape).

3 2. Separate counts of indecent assault and battery.

"Under the double jeopardy clause of the Fifth Amendment to the

United States Constitution and Massachusetts common law, no

person may be convicted twice for the same offense."

Commonwealth v. Horne, 466 Mass. 440, 449 (2013). The defendant

argues that because he engaged in "one continuous course of

conduct," the judge violated this clause "as well as the common

law rule against imposing multiple punishments for the same

offense" by sentencing him for four separate counts of indecent

assault and battery on a child under the age of fourteen, G. L.

c. 265, § 13B. There was no error. 2 Where a defendant is

charged with multiple offenses under a single statute, we must

decide "whether two . . . discrete offenses were proved under

that statute" or whether the conduct constituted one continuing

offense. Commonwealth v. Dykens, 473 Mass. 635, 640 (2016),

quoting Commonwealth v. Traylor, 472 Mass. 260, 268 (2015). If

the conduct supporting one count of indecent assault and battery

was not incidental and necessary to the conduct supporting the

other counts, there can be separate convictions and punishments.

2 The Commonwealth suggests that because the defendant did not adequately preserve this claim for review, our review is limited to determining whether there was an error and, if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Brum, 492 Mass. 581, 587 (2023). Given our conclusion there was no error, we need not decide which standard of review applies in the circumstances presented.

4 See Commonwealth v. Suero, 465 Mass. 215, 221 (2013);

Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 273-274

(2013). Here, four separate acts provided the basis for the

four counts presented to the jury: the defendant (1) rubbing

his genitals on the victim's backside, (2) putting his hand in

the waistband of the victim's pants, (3) touching and sucking on

the victim's breasts, and (4) ejaculating on the victim. None

of these acts was incidental and necessary to any other.

3. Specific unanimity instruction. Lastly, the defendant

maintains that the judge failed to give the jury a specific

unanimity instruction. Because defense counsel did not request

such instruction at trial, we review "only to determine if there

is a substantial risk of a miscarriage of justice."

Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005). "[A]

specific unanimity instruction indicates to the jury that they

must be unanimous as to which specific act constitutes the

offense charged." Commonwealth v. Conefrey, 420 Mass. 508, 512

(1995), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567

(1987). Such instruction "is required only if the jurors could

otherwise disagree which act a defendant committed and yet

convict him of the crime charged." Commonwealth v. Ramos, 31

Mass. App. Ct. 362, 366-367 (1991). Here, the judge instructed

the jury on two separate occasions that "[f]or each verdict

slip, again as I indicated, they are labeled as to what the

5 alleged touching was and on each verdict slip you'll have to

agree unanimously." Moreover, the verdict forms clearly stated

which alleged act of the defendant formed the basis for each

conviction. Given these circumstances, we discern no error,

much less one creating a substantial risk of a miscarriage of

justice.

Judgments affirmed.

By the Court (Ditkoff, Grant & Toone, JJ. 3),

Clerk

Entered: January 13, 2025.

3 The panelists are listed in order of seniority.