Commonwealth v. Niels N.

901 N.E.2d 166, 73 Mass. App. Ct. 689, 2009 Mass. App. LEXIS 238

• Court: Massachusetts Appeals Court
• Decided: February 23, 2009
• Docket: No. 07-P-476
• Status: Published

Opinions

Wolohojian, J.

After a jury trial on a delinquency complaint and two indictments charging the juvenile as a youthful offender, the juvenile was adjudicated a delinquent child. The juvenile was found guilty on an indictment charging assault with intent to rape a child under age sixteen in violation of G. L. c. 265, § 24B¹; on an indictment charging rape of a child with force, the juvenile was found guilty of the lesser included offense of assault and battery in violation of G. L. c. 265, § 13A. Lastly, the juvenile was found delinquent on a complaint charging indecent assault and battery on a child under age fourteen in violation of G. L. c. 265, § 13B.

On appeal, the juvenile claims that the adjudications were duplicative because (a) assault and battery was a lesser included offense of indecent assault and battery on a child, and (b) the acts underlying the charges of indecent assault and battery on a child and assault with intent to rape a child were so closely related in fact as to constitute a single crime.²,³ We agree that the adjudications are duplicative, and as a result set aside the assault and battery and indecent assault and battery adjudications. We affirm the juvenile’s adjudication of delinquency by reason of assault with intent to rape a child under age sixteen.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On January 18, 2005, the juvenile, then age sixteen, sexually assaulted his seven year old half sister, Norma.2 ⁴ Norma, who had gone to the juvenile’s bedroom to look for her doll, was pushed by the juvenile so that her knees were on the floor and her face on the bed. He pulled down her pants as well as his own,⁵ and then climbed atop her and began “humping her” from behind. The juvenile’s eleven year old stepbrother, Kevin, arrived by coincidence while the incident was occurring and saw ■— through a crack between the locked bedroom door and the jamb — Norma face down on the bed and the juvenile on top of her with his pants down.

Additional facts are set out in the sections of the discussion, infra, to which they pertain.

Discussion. 1. Duplicative convictions.6 The case rested on only three acts, all closely related in time, place, and intent. The Commonwealth presented no theory as to how these three acts related to the charged offenses, or to the elements of any of the crimes. Because of this, and the absence of a unanimity instruction,⁷ we do not and cannot know on which act or acts the jury predicated the convictions.

On appeal, the Commonwealth contends that the removal of Norma’s pants constituted indecent assault and battery, pushing her onto the bed constituted a separate assault and battery, and getting on top of her supported the separate crime of assault with intent to rape. Neither this theory nor any other was advanced during the trial, either to the judge or to the jury. The prosecutor at no point articulated the Commonwealth’s position as to which of the three acts (singly or in combination) satisfied which of the charges, the lesser included offenses that were also submitted to the jury for consideration,⁸ or the elements of either. In both its opening statement and its closing argument, the Commonwealth said merely that the case was not complicated and that the conduct consisted of: “[Norma] went down to the Defendant’s room, he pushed her onto the bed, he pulled down his pants, he pulled down her pants and he got on top of her.”

Nor did the jury receive guidance from any other source as to how they were to view the evidence in relation to the charges. The indictments and the delinquency complaint consisted only of a recitation of the elements of each applicable crime and the date on which the offense was charged to have occurred; they did not identify the Commonwealth’s theory as to how the juvenile committed each crime. The jury instructions, too, were silent, containing no reference to any of the evidence in the case, or to how the evidence related to any of the offenses or their elements.

In short, the jury received no guidance — whether from the charges, the Commonwealth’s case, or the trial judge — as to what conduct could form the predicate for which offense(s) and which offenses needed to be predicated on separate and distinct acts. Contrast Commonwealth v. King, 445 Mass. 217, 225-226 (2005), cert, denied, 546 U.S. 1216 (2006) (convictions of indecent assault and battery and rape were not duplicative where the judge instructed the jury that separate and distinct acts were needed and explained the Commonwealth’s theory as to which acts constituted which offenses). In these circumstances, it is impossible to know which of the three acts, singly or in combination, was relied upon by the jury in finding the juvenile guilty of any of the charges.

a. Assault and battery and indecent assault and battery on a child. The juvenile argues that his adjudications of delinquency by reason of assault and battery and indecent assault and battery on a child are duplicative because assault and battery is a lesser included offense.

The juvenile was convicted of indecent assault and battery of a child under the age of fourteen, G. L. c. 265, § 13B, which, unlike simple assault and battery, does not require proof of lack of consent. See Commonwealth v. Farrell, 31 Mass. App. Ct. 267, 268 (1991) (“[b]y St. 1986, c. 187, the Legislature amended § 13B to exclude lack of consent as an element of the crime of indecent assault and battery on a child under fourteen”). Therefore, under a proper jury charge, “a simple assault and battery ... is not a lesser included offense within the statutory offense of indecent assault and battery of a child.” Id. at 268-269.

In the case at bar, however, the judge did not instruct the jury that lack of consent was required to prove assault and battery, even though such an instruction was required. See, e.g., Commonwealth v. Cohen, 55 Mass. App. Ct. 358, 359 (2002) (assault and battery requires proof of lack of consent where the touching is offensive). Moreover, the judge (in charging the elements of rape) instructed the jury, “[A]nd of course the law, for a child of seven years old, they’re not old enough to give consent so consent is not a factor.”⁹ As part of the instructions concerning indecent assault and battery on a child, the judge similarly (correctly) informed the jury: “Because of the age of the alleged victim you are not to consider, as I mentioned earlier, whether or not, in this case the alleged victim, she consented to any touching. If the victim is under fourteen years of age it is irrelevant whether or not she consented.” In short, not only were the jury not instructed that proof of lack of consent was required in order to convict the juvenile of assault and battery on a theory of an offensive touching,¹⁰ the only information they received at all concerning consent was that it was irrelevant. In effect, then — through an erroneous jury charge that omitted the element of nonconsent — the assault and battery in this case became a lesser included offense of indecent assault and battery on a child under age fourteen.¹¹ “This instruction became the law of the case.” Commonwealth v. Pinero, 49 Mass. App. Ct. 397, 399 (2000), and cases cited.

Because the assault and battery charge was submitted to the jury as a lesser included offense of indecent assault and battery on a child under fourteen, the jury should have been instructed that the offenses were required to rest on separate and distinct acts.¹² This is our well-established rule regarding lesser included offenses. See Commonwealth v. King, 445 Mass, at 225 (convictions of the greater and lesser included offenses must “rest on separate and distinct acts”). See also Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999) (jury properly instructed that the Commonwealth had the burden to prove that the acts constituting the lesser included offense of assault and battery by means of a dangerous weapon were separate and distinct from those constituting murder). Compare Commonwealth v. Moran, 439 Mass. 482, 489 (2003) (dismissing a lesser included offense where the judge failed to instruct that the convictions had to be predicated on separate and distinct acts). And the failure to provide such an instruction in this case resulted in a substantial risk of a miscarriage of justice such that the adjudication of delinquency by reason of assault and battery must be vacated. See, e.g., Commonwealth v. Juzba, 46 Mass. App. Ct. 319, 325 & n.1 (1999) (dismissing an indictment for a lesser included offense, noting that “we need not determine whether there was . . . evidence which would support two distinct acts, since the judge did not instruct the jury that the conviction[s of indecent assault and battery and rape] must be based on separate acts”). See also Commonwealth v. Thomas, 400 Mass. 676, 681-682 (1987) (vacating judgments on convictions of indecent assault and battery where the judge failed to instruct that the convictions needed to rest on facts separate from those constituting aggravated rape); Commonwealth v. Sanchez, 405 Mass. 369, 381-382 (1989) (same with respect to convictions of indecent assault and battery and rape of a child); Commonwealth v. Howze, 58 Mass. App. Ct. 147, 151-152 (2003) (same with respect to convictions of indecent assault and battery on a child and statutory rape).¹³

b. Indecent assault and battery and assault with intent to rape. The juvenile argues that, although indecent assault and battery on a child is not a lesser included offense of assault with intent to rape a child, the adjudications were duplicative because the factual basis for each was the same.

Our established rule is that, when tried in a single proceeding, a defendant may be convicted of and punished for multiple crimes based on the same act or on a single course of conduct “provided that each [crime] requires proof of an element that the other does not.” Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 385 (1998). Thus, if a defendant is charged with two offenses and neither is a lesser included offense of the other, “convictions on both are deemed to have been authorized by the Legislature and hence not duplic[ative].” Id. at 386, quoting from Commonwealth v. Jones, 382 Mass. 387, 393 (1981). However, in some limited circumstances, even where a lesser included offense is not involved, convictions may be duplicative if it “can be said with certainty that [the defendant’s] actions were ‘so closely related in fact as to constitute in substance but a single crime.’ ” Commonwealth v. Jones, 441 Mass. 73, 76 (2004), quoting from Commonwealth v. St. Pierre, 377 Mass. 650, 662-663 (1979). Commonwealth v. Cabrera, 449 Mass. 825, 828 (2007). See Commonwealth v. Jones, 382 Mass, at 394 (even where one crime is not a lesser included of another, punishment on both is precluded where, on the facts, “the two offenses are sufficiently closely related”).

In order to determine whether a defendant’s actions are “so closely related,” we are to look at such factors as whether the acts were separate in time, the form of conduct, and the defendant’s intent. See, e.g., Commonwealth v. Wolinski, 431 Mass. 228, 239 (2000) (examining the characteristics of each of the defendant’s acts to determine whether they were so closely related as to result in duplicative convictions). Compare Commonwealth v. Cabrera, 449 Mass, at 828 (defendant’s acts were not so related because “they were separated in time and by different forms of conduct. Moreover, he had separate intents”).

When we look at those factors here, it is clear that the juvenile’s actions were so closely related as to constitute a single crime. The Commonwealth presented no evidence that the three acts in this case were separated in any way, whether temporally,¹⁴ physically, or otherwise. There was no evidence whatsoever of pause, interruption, delay, or discontinuity from one act to the next. Moreover, the Commonwealth introduced no evidence to show or suggest that the juvenile’s intent in pulling down the pants or pushing Norma’s face onto the bed was anything other than to effectuate his goal of getting on top of her. Indeed, there was no direct or indirect evidence of the juvenile’s intent to rape other than his pulling down of Norma’s pants — the same act that the Commonwealth now claims supported the indecent assault and battery conviction rather than the conviction of assault with intent to rape. See Commonwealth v. Morin, 52 Mass. App. Ct. 780, 787-788 (2001).¹⁵

Where offenses are so closely related in fact that they in substance constitute a single crime, the jury are to be instructed that convictions on those offenses must rest on separate and distinct acts. See Commonwealth v. Santos, 440 Mass. 281, 293-294 (2003) (vacating a conviction of assault by means of a dangerous weapon as duplicative of a conviction of armed robbery, even though one was not a lesser included offense of the other, because no separate and distinct act instruction was given); Commonwealth v. Morin, 52 Mass. App. Ct. at 786 n.6 (separate and distinct act instruction required on the retrial of offenses that were so closely related as to constitute a single crime). Just as with lesser included offenses, the error occurs not simply because there were multiple convictions resting on facts so related that they constituted a single crime, but because the jury were not instructed that the convictions needed to rest on separate and distinct acts. See Commonwealth v. Santos, supra. Compare Commonwealth v. Moran, 439 Mass, at 489 (jury should have been instructed that convictions of indecent assault and battery and simple assault and battery needed to be predicated on separate and distinct acts); Commonwealth v. Black, 50 Mass. App. Ct. 477, 478-479 (2000) (absent proper jury instruction, a conviction of a lesser included offense will be vacated if the record does not indicate there is only an insubstantial possibility of duplicative convictions based on the same act); Commonwealth v. Howze, 58 Mass. App. Ct. at 151 (failure to give instruction regarding separate and distinct acts resulted in the possibility of jury confusion and convictions resting on the same facts). Where no separate and distinct act instruction is given, and the actions underlying the offenses — here, assault with intent to rape a child and indecent assault and battery on a child — are so closely related in fact as to constitute a single crime, the error creates a substantial risk of a miscarriage of justice requiring that the conviction of the lesser offense be vacated. See Commonwealth v. Black, supra.

2. “First complaint” testimony. The juvenile argues that there was error in permitting multiple witnesses to testify as to actions they took or reactions they had after they had spoken with the victim. The juvenile claims that this evidence amounted to impermissible multiple complaint testimony and should not have been admitted. Because the juvenile did not object at trial, we review to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here, there was no error.

A designated “first complaint witness” (generally the person who the victim first told of the assault) “may testify to the details of the alleged victim’s first complaint of sexual assault and the circumstances surrounding that first complaint.” Commonwealth v. King, 445 Mass, at 243. The “first complaint” rule “is not an exception to the rule against hearsay but rather ‘an exception to the usual rule that a prior statement . . . that is consistent with the witness’s trial testimony may only be admitted on redirect examination.’ ” Id. at 241 n.21, quoting from Commonwealth v. Peters, 429 Mass. 22, 27 n.6 (1999). Testimony from multiple complaint witnesses is not permitted. Commonwealth v. King, supra at 242-243.

The nonverbal conduct at issue here does not qualify as a statement under our principles of evidence. Although the definition of a statement is usually discussed in the context of hearsay, we consider the definition equally applicable in the context of first or multiple complaints. “Both Proposed Mass.R.Evid. 801(a) and Fed.R.Evid. 801(a) define a ‘statement’ as ‘(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.’ ” Commonwealth v. Baker, 20 Mass. App. Ct. 926, 928 n.3 (1985). See ibid, (nonverbal conduct by the person amounts to a “statement” if offered for the purpose of an inadmissible extrajudicial statement). “At common law out-of-court conduct, which by intent or inference expresses an assertion, has been regarded as a statement.” Opinion of the Justices, 412 Mass. 1201, 1209 (1992), citing Bartlett v. Emerson, 7 Gray 174 (1856). See Reporter’s Note to Mass. G. Evid. § 801 (2008-2009).

To determine whether the nonverbal conduct was intended as an assertion, we look to the person’s intention as of the time of the conduct. See Commonwealth v. Baker, supra (failure to identify suspect from a photographic array was intended at the time by the eyewitness as an assertion that he was not one of the culprits). Thus, in order to prevail on his argument, the juvenile must show that at the time of the nonverbal conduct, either the conduct was intended by the person as an assertion about a “complaint” statement by Norma, or such an assertion can be reasonably inferred. Compare Commonwealth v. Ashman, 430 Mass. 736, 742-743 (2000) (witnesses’ testimony that they had telephoned the police after speaking with the victim created possible inference that the “defendant had abused” the victim; the testimony was therefore “no more than the equivalent of repeating statements of the victim”). The juvenile argues that the impermissibly introduced testimony as to the witnesses’ nonverbal conduct implied that “Norma alleged a sexual assault and identified the juvenile as the perpetrator.” This argument fails for the reasons set out infra.16

a. Kevin. After having observed the assault through the crack by the door, Kevin left and, about three minutes later, so did Norma. Kevin then confronted Norma, who denied that the incident had occurred. He concluded, however, that she was lying and he left, crying.¹⁷

The juvenile contends that the testimony concerning the fact that Kevin was crying after he spoke with Norma and additional testimony that Kevin told the father that he did not want the juvenile to go to jail violates the first complaint rale by implying that Norma told Kevin that the juvenile had assaulted her.¹⁸ No such inference can reasonably be drawn from the record because Kevin’s direct — and uncontradicted — testimony at trial was that Norma denied to him that an assault had occurred. Given the testimony that Norma denied the incident to him, Kevin’s crying was a reflection of what he had seen, rather than something intended to relay anything Norma had said to him. Compare Commonwealth v. Cordle, 404 Mass. 733, 743-744 (1989) (police officer’s testimony regarding actions taken after speaking to the victim were based not only on that conversation, but also the officer’s observations).

b. Mother. After she arrived home from work later on the evening of the assault, Norma’s mother spoke to her husband, Norma, Kevin, and the juvenile. She did not testify as to the content of any of these conversations. However, she did testify that, after the conversations occurred, she and her husband decided to take the juvenile that evening to stay at his grandmother’s house. The juvenile contends that testimony concerning the decision to send him to his grandmother’s house violated the first complaint rule by impliedly revealing what Norma said to her mother before the decision was made. No statement by Norma can be reasonably inferred from the mother’s actions because they took place after the mother had spoken to several people, not just to Norma. Compare Commonwealth v. Cordle, supra. Contrast Commonwealth v. Arana, 453 Mass. 214, 227 n.21 (2009).

c. The nurse. On the morning following the assault, Norma’s parents took her to her pediatrician and then to Baystate Medical Center. At trial, the nurse testified that she examined Norma using a sexual assault kit; she also described in detail the various components of the kit and the samples that were taken as part of its administration. Contrary to the juvenile’s contention, the nurse’s testimony did not violate the first complaint rule, because it was not offered to corroborate Norma’s complaint. Rather, the nurse’s testimony merely described the steps she took in performing the sexual assault examination, and the test did not conclusively show that an assault had taken place. In these circumstances, the testimony was neither corroborative of any statement by Norma nor prejudicial to the juvenile. We do not understand Commonwealth v. Stuckich, 450 Mass. 449, 456-457 (2008), to prohibit such testimony. Compare Commonwealth v. Arana, 453 Mass, at 230-232.

3. Absence of interview videotape. The day after the incident, a forensic interviewer conducted a multidisciplinary team (MIT) interview of Norma while a social worker, doctor, Department of Social Services worker, and police officer listened and observed from another room. Although the interview was not transcribed, recorded, or videotaped, several of the participants kept notes, which were produced in discovery to the juvenile. On appeal, the juvenile argues that Federal and State due process principles required the Commonwealth to videotape the MIT interview of Norma, and that it was error to deny his motion to dismiss. We disagree. Although we have acknowledged that the electronic recording of sexual abuse intervention network (SAIN) interviews (comparable to MIT interviews) is “good practice,” Commonwealth v. Upton U., 59 Mass. App. Ct. 252, 255 (2003), neither we nor the Supreme Judicial Court has “required that such recordings be made.” Commonwealth v. Howard, 446 Mass. 563, 565 n.1 (2006). Moreover, the juvenile has neither argued nor shown any cognizable harm from the absence of a recording.

4. Inconsistent statements. The trial judge did not abuse his discretion in excluding portions of the medical record in which the nurse recorded that Norma was unsure whether there had been penetration, whether the juvenile had ejaculated, whether the juvenile had caused her to bleed, or whether he had attacked her in the presence of others. See Commonwealth v. Sineiro, 432 Mass. 735, 742 (2000) (“trial judge has considerable discretion in deciding whether inconsistency exists between a witness’s testimony at trial and prior . . . statements”). As the trial judge correctly found, the medical records presented no inconsistency because, at trial, Norma never testified concerning any of the matters contained in the excluded portions of the medical records.

5. Jury instructions. The juvenile argues that the trial judge erred in refusing to give a “missing witness” instruction to the jury concerning the Commonwealth’s decision not to call as witnesses any police officers who had been involved in the investigation of the case.¹⁹ “A missing witness instruction is appropriate when a party ‘has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case.’ ” Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting from Commonwealth v. Anderson, 411 Mass. 279,280 n.1 (1991). The decision to give such an instruction is committed to the discretion of the trial judge and will not be reversed unless manifestly unreasonable. Commonwealth v. Thomas, 429 Mass. 146, 151 (1999). The juvenile has not shown what testimony of “distinct importance” the officers could have been expected to provide. Consequently, there is no basis upon which it could be inferred that testimony of the absent officers would have been unfavorable to the Commonwealth. See Commonwealth v. Tripolone, 57 Mass. App. Ct. 901, 901 (2003), quoting from Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986) (jury instructions regarding a party’s failure to call a witness “should be given ‘only in clear cases, and with caution’ ”). Moreover, the juvenile does not claim that these witnesses were not equally available to him to call at trial; nor does he provide any explanation as to why he chose not to call them himself. See Commonwealth v. Cobb, 397 Mass. 105, 108 (1986).

Conclusion. The adjudications of delinquency by reason of assault and battery and indecent assault and battery on a child are vacated and the corresponding indictment and complaint are dismissed. The adjudication of delinquency by reason of assault with intent to rape a child under age sixteen is affirmed.

So ordered.

1 Because the jury found that the offense did not involve infliction or threat of serious bodily harm, the juvenile was not convicted as a youthful offender but, rather, was adjudicated a delinquent child. See G. L. c. 119, § 52.

2 Because the juvenile raises these issues for the first time on appeal, we review for whether the alleged errors created a substantial risk of a miscarriage of justice. Commonwealth v. Drew, 67 Mass. App. Ct. 261, 264 (2006).

3 The juvenile also raises several other issues on appeal, concerning first complaint testimony, failure to videotape an interview with the victim, prior inconsistent statements, and failure to give the jury a “missing witness” instruction.

4 We use pseudonyms to refer to all family members.

5 The sequence of pushing Norma onto the bed and pulling down her pants is not entirely clear in the record. Norma’s testimony was as follows:

Q.: “What happened after you went into [the juvenile’s] room and you found your doll?”

A.: “He pushed me on the bed.”

Q.: “Okay. And what happened after he pushed you on the bed?”

A.: “Then he got on top of me.”

Q:. “Okay. And what about your, your clothes?”

A.: “My pants were down a little bit.”

Q.: “Okay. Now did you pull your pants down?”

A.: “No he did.”

Q.: “Okay. When he pushed you onto the bed did he say anything to you?”

A.: “No.”

Q.: “Okay. And after, after he pulled down your pants what did he do?”

A.: (No verbal response.)

Q.: “Well what did he do with his pants, do you remember?”

A.: “He, he pulled them down.”

Q.: “And then what happened? Where were you now, where were you on the bed?”

A.: “I was on my knees on the ground and my face was facing down on the bed but I was towards like the closet.”

Q“Okay. So your face was on the bed but your knees were on the ground?”

A.: “Yes.”

Q.\ “Okay. And was he behind you or where was he?”

A.: “He was behind me.”

Q:. “Okay. And what, what happened next?”

A.: (No verbal response.)

<2■: “When, when you said your face was on the bed did you say anything to him?”

A.: “No.”

Q“Okay. And he didn’t say anything to you?"

A.: “No.”

<2.: “Okay. And after, right after you were on your knees and you said he was behind you, then what did he do when he was behind you?"

A.: “He got on top of me.”

Q.: “Okay. And do you remember, you said he got on top of you, where was his head, do you remember?”

A.: “No.”

Q:. “Okay. And after he got on top of you did he say anything?”

A.: “No.”

Q.\ “Okay. Did you say anything?”

A.: “No.”

6 We recognize that a “juvenile adjudication is not considered to be [a] criminal conviction,” Commonwealth v. Ogden O., 448 Mass. 798, 804 (2007), citing Department of Youth Servs. v. A Juvenile, 384 Mass. 784, 786 (1981), but herein employ the terms “conviction(s)” and “adjudication(s)” interchangeably for ease of reference.

7 A unanimity instruction was not requested below; nor was its absence objected to.

8 As indicated earlier, the jury were given the option of convicting the juvenile of assault and battery as a lesser included offense of rape of a child. The verdict slip on assault with intent to rape a child also provided the alternative of convicting on the lesser included offense of simple assault.

9 This instruction was incomplete, as proof of nonconsent is required on a theory that the child is compelled to submit by force. See Commonwealth v. Thayer, 35 Mass. App. Ct. 599, 602 n.7 (1993), S.C., 418 Mass. 130 (1994). However, as the juvenile was acquitted of the rape charge, the error is of no import on appeal.

10 On a charge of assault and battery, proof of lack of consent is not required where the touching is harmful, i.e., committed with “such violence that bodily harm is likely to result.” Commonwealth v. Farrell, 322 Mass. 606, 620 (1948). However, because the judge instructed the jury on both forms of assault and battery (i.e., a harmful or offensive touching), he was required to further instruct that the jury could not convict on a theory that the touching was offensive unless they found that the Commonwealth had proved lack of consent.

11 The case was also prosecuted and defended as though consent was not an issue. The Commonwealth did not introduce evidence concerning lack of consent (other than the victim’s age) and did not argue the issue in closing. The juvenile — for good reason — did not argue consent as a defense.

12 Whether the events are “separate and distinct acts or part of a single criminal episode” is a question of fact for the jury to determine. Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999).

13 In Commonwealth v. Howze, supra, a case involving facts remarkably similar to the case at hand, we addressed a similar lack of instruction. In Howze, the defendant climbed on top of the victim and pulled her jeans, skirt, and underwear down to her ankles. The Commonwealth argued that these acts together constituted an indecent assault and battery. It further argued that subsequent penetration (something that was not proved in the case at hand) constituted the predicate for the rape conviction. Even with the much more separate act of penetration present in Howze, we determined that the convictions were duplicative and that the lesser included offense was to be vacated because the jury had not been instructed that the convictions needed to be based on separate and distinct acts. Id. at 150-152.

14 The episode was apparently short, based on the testimony that Norma left the juvenile’s room three minutes after Kevin left and that Kevin watched through the door for about a minute.

15 We consider Commonwealth v. Morin, 52 Mass. App. Ct. 780 (2001), dis-positive on the question whether the acts were so closely related as to constitute a single crime. Morin involved, inter alia, convictions of indecent assault and battery and assault with intent to rape an adult victim. The facts were as follows: the defendant pushed his way into the victim’s apartment, knocking her backward with force, and then locked the door behind him. Once inside, the defendant grabbed the victim’s arm and refused to release her. As she struggled, the defendant grabbed at the victim’s breasts and at the bottom of her shorts. On two occasions, he put his hand up her shorts and it came into contact with her underwear. As the defendant attempted to pull the victim’s shorts down, he told her that he wanted to “screw [her] in the ass.” Id. at 782. On those facts, the court held that the crimes were so closely related in fact as to render the convictions duplicative. Id. at 787-788.

16 Because no impermissible multiple complaint testimony was admitted, the juvenile’s due process argument based on the admission of the same testimony also fails.

17 Norma’s father (who is Kevin’s stepfather, “the father”), then questioned Kevin about the incident. The father in turn questioned Norma, who confirmed that the incident had occurred. The father was the first complaint witness at trial.

18 There is no argument to be made regarding the testimony that Kevin stated he did not want the juvenile to go to jail, as this was struck from the record and the jury were instructed to disregard it.

19 The juvenile’s one-sentence unsupported argument that the trial judge erred in not giving a jury instruction regarding the prosecution’s failure to introduce certain photographs does not rise to the level of appellate argument, and therefore, we do not consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Cintron, 435 Mass. 509, 520 n.5 (2001).