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17-P-690 Appeals Court
COMMONWEALTH vs. EDGARDO RIOS.
No. 17-P-690.
Middlesex. November 14, 2018. - November 12, 2019.
Present: Agnes, Blake, & Neyman, JJ.
Rape. Assault with Intent to Rape. Indecent Assault and Battery. Jury and Jurors. Practice, Criminal, Jury and jurors, Voir dire, Interrogation of jurors, Challenge to jurors, Empanelment of jury, Instructions to jury, Lesser included offense, Duplicative charges, Duplicative convictions. Due Process of Law, Examination of jurors.
Indictments found and returned in the Superior Court Department on February 7, 2012.
The cases were tried before Heidi E. Brieger, J.
Michael P. Gerace for the defendant. Emily Kathleen Walsh, Assistant District Attorney, for the Commonwealth.
AGNES, J. A Superior Court jury found the defendant,
Edgardo Rios, guilty on two indictments charging rape of a child
by force, G. L. c. 265, § 22A, two indictments charging
aggravated rape of a child, G. L. c. 265, § 23A, one indictment 2
charging indecent assault and battery on a child under the age
of fourteen, G. L. c. 265, § 13B, and assault with intent to
rape a child, G. L. c. 265, § 24B, as a lesser included offense
of aggravated rape of a child (indictment one). 1 The defendant
raises numerous claims of error. We vacate the judgment on
indictment one, and affirm the judgments on the remaining
indictments.
Background. We summarize the evidence presented at trial,
reserving certain details for the discussion of specific issues.
The victim was eleven years old at the time of trial in 2014 and
between eight and nine years old at the time described in the
indictments. The defendant and the victim's mother met through
church in 2005, and later reconnected in 2010 or 2011. Upon
reconnecting, the defendant began assisting the mother by
driving her places -- including to appointments, stores, and
church -- as the mother did not have a car. The mother would
1 On indictment one, the judge directed a verdict in favor of the defendant on the greater offense, and a verdict slip went to the jury on the lesser included offense of assault with intent to rape a child. The judge directed a verdict in favor of the defendant with respect to two additional indictments alleging aggravated rape of a child and two additional indictments alleging rape of a child by force. The defendant was sentenced to concurrent terms of imprisonment in State prison for not less than fifteen nor more than fifteen years and one day on the aggravated rape convictions, a concurrent probationary term on the indecent assault with intent to rape conviction, and, on the remaining convictions, ten years' probation from and after the committed sentences. 3
assist the defendant by translating things into English.
Through this relationship the defendant and the mother became
friends, and the defendant came to know the victim and the
victim's two siblings. The defendant would sometimes be invited
to the mother's house and other times would just arrive
unannounced.
The victim made her first complaint of abuse on January 7,
2012. On that date, the mother hosted a birthday party for her
godson at her house. That morning, she called the defendant for
a ride to get a cake and other items for the party. He agreed
to do so and spent most of the day with the mother and the
victim. During the party, Jacqueline Flores, a friend of the
mother who had never met the defendant, observed the defendant
sitting alone with the victim in the living room. She saw the
defendant touch the victim "[i]n her private part" or vaginal
area while the victim was playing with the defendant's laptop.
When the defendant left the party, Flores, who testified as the
first complaint witness, questioned the victim about what had
occurred, and the victim admitted that she had been touched in
her private part.
At trial, the victim testified to several incidents of
abuse. According to the victim's testimony, some of these
incidents occurred only once and others recurred. The victim
testified to one incident that occurred at her mother's house 4
while playing on the defendant's laptop where the defendant
touched her private part on top of her clothes. While this
testimony was similar to the conduct observed by Flores on
January 7, 2012, the victim testified that this occurred on a
different occasion.
The victim also testified to abuse occurring in the
defendant's van. She testified that on one occasion when the
defendant was giving her a ride to school, he touched her front
private part and inserted his index finger in her butt. She
also testified to a separate occasion in the defendant's van
where the defendant rubbed his hand on her front private part
when taking the victim to see the Lowell Christmas tree.
The victim further testified that on more than one occasion
at the defendant's house on his bed he inserted his tongue in
her butt. Finally, the victim testified that on one occasion at
the defendant's house the victim returned from the bathroom to
find the defendant with his pants down and "balls" exposed. On
this occasion, the victim testified that the defendant tried to
get near her by trying to go to her front private part while her
pants were down but was unable to do so because she kicked out
in his direction.
Discussion. On appeal, the defendant argues that (1) the
trial judge improperly refused to excuse a juror for cause; (2)
two of the convictions are duplicative of convictions on greater 5
offenses and should be vacated; (3) the trial judge erroneously
instructed the jury concerning (a) collective memory and (b)
specific unanimity, and (c) improperly declined to instruct the
jury on lesser included offenses. The defendant also contends
that (4) the prosecutor made improper statements in closing
argument.
1. Jury empanelment. The defendant contends that the
judge erred by not striking a juror for cause. The judge first
arranged for the prospective jurors to answer questions in
writing and under oath that were contained in a written
"worksheet." These questions included those that must be asked
in every case, see Mass. R. Crim. P. 20 (b), 378 Mass. 889
(1979), 2 as well as other questions that were suggested by the
parties based on the nature of the offenses charged -- sexual
offenses against a child.
The judge then commenced an individual voir dire of each
prospective juror in open court and in the presence of the
2 Rule 20 (b) of the Massachusetts Rules of Criminal Procedure provides in part that "[t]he court shall . . . examine on oath a person who is called as a juror . . . to learn whether he is related to either party, has any interest in the case, has expressed or formed an opinion, or is sensible of any bias or prejudice." See G. L. c. 234, § 28. Section 28 was repealed and replaced by G. L. c. 234A, § 67A, after the time of the defendant's trial, see St. 2016, c. 36, § 4, but the provisions pertinent to this appeal were not materially changed. See note 7, infra. 6
defendant, but out of the hearing of other prospective jurors.
See Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994) (acting
under general superintendence powers, Supreme Judicial Court
ordered that in cases involving sexual offenses against minors,
judge must upon request question each potential juror
individually about whether potential juror was victim of
childhood sexual offense). The judge on her own excused the
first potential juror, who taught at a school that recruited
"highly court involved youth" and who was associated with a
group that "gives emotional support to people who have been
accused." The juror stated that it would be "very hard" for her
to be fair and impartial. When questioned further by the judge,
the prospective juror said she "would try" to be fair and
impartial, "would try" to decide the case based only on the law
and the evidence, and agreed with the judge's assessment that
she could not give those questions a "yes" or "no" answer. The
judge appropriately exercised her discretion and excused this
juror for cause. 3
The second juror to be individually questioned reported
that she was the victim of a violent crime as a result of having
been kidnapped in Brazil. "I don't know how -- you know, I'll
3 We note that, "by statute, [a person] may not be excluded from serving as a juror because of his occupation. See G. L. c. 234A, § 3." Blank v. Hubbuch, 36 Mass. App. Ct. 955, 958 (1994). 7
try to be impartial. I don't know how much that would affect
throughout the process." She also said, "[B]eing a mother of
young kids, I think that plays a role in terms of, you know, the
case." The judge reviewed with this juror each of the questions
on her confidential juror questionnaire in which she expressed a
reservation about whether she could be fair and impartial. 4 When
asked by the judge if she could put her personal experiences
aside, listen to the evidence fairly and impartially, and render
a verdict, she responded, "I'll do it to the best of my
ability." The judge inquired further, learning that the juror's
husband was with her when she was kidnapped, and again asked the
potential juror if she could be fair and impartial, whereupon
she stated, "I'll do the best of my ability." And, following a
further inquiry by the judge about her ability to put aside her
personal experiences and to be fair and impartial, the
prospective juror stated, "I'll do it to the best of my
ability."
The defendant challenged this juror for cause, arguing that
prior to the voir dire the prospective juror stated in several
places in her juror questionnaire that she could not be fair and
4 The record before us does not contain the potential juror's confidential juror questionnaire, G. L. c. 234A, § 22, or the written worksheet prepared by the court. We discern the contents of the questionnaire and the worksheet from the transcript of the empanelment process. 8
impartial. The judge rejected the defendant's challenge, noted
his objection, and found that this prospective juror could be
fair and impartial. The defendant then used a peremptory
challenge to remove this prospective juror from consideration,
and the judge excused her.
Although the juror in question was not among the
deliberating jurors, the judge's finding that the juror was
indifferent and thus eligible to sit on the jury required the
defendant to use his final peremptory challenge. The defendant
contends that he was prejudiced by being forced to accept
another juror (second juror) who was called to sidebar for a
voir dire after the juror in question; the defendant
unsuccessfully challenged the second juror for cause, and he
otherwise would have removed the second juror by using a
peremptory challenge. 5 See Commonwealth v. McCoy, 456 Mass. 838,
842 (2010) ("prejudice generally is shown by the use of a
peremptory challenge to remove the juror who allegedly should
have been excused for cause together with evidence that the
defendant later was forced to accept a juror he would have
challenged peremptorily but was unable to because his peremptory
challenges had been exhausted" [emphasis omitted]).
5 The defendant also unsuccessfully sought additional peremptory challenges in order to have the second juror excused. The judge denied this request and found that the juror was indifferent. The juror was seated. 9
A person charged with a crime has a right under both the
Massachusetts and United States Constitutions to be tried by an
impartial jury. Commonwealth v. Long, 419 Mass. 798, 801-802
(1995). See Davis v. Allen, 11 Pick. 466, 467-468 (1831)
(impartial jury "is equally demanded by the general principles
of the common law"). The defendant's right to an impartial jury
is violated if even one member of the deliberating jury is not
impartial. See Gray v. Mississippi, 481 U.S. 648, 668 (1987)
("because the impartiality of the adjudicator goes to the very
integrity of the legal system, the . . . harmless-error analysis
cannot apply"). The judge's duty to ensure that the jury is
impartial extends to the entire trial and through the jury's
deliberations. See Commonwealth v. Colon, 482 Mass. 162, 167-
169 (2019) (where evidence of extraneous influence first
surfaced during deliberations, judge properly exercised
discretion by conducting individual voir dire of each juror,
excusing all influenced jurors, and determining that remaining
jurors were impartial). 6
6 Apart from the duty to ensure that both the defendant and the Commonwealth have a trial before an impartial jury, the judge has a responsibility to each person called for service as a juror. "Judges and lawyers are reminded that jurors are essential to the administration of justice. The jury system provides the most important means by which laypersons can participate in and understand the legal system." Commonwealth v. Auguste, 414 Mass. 51, 59 n.3 (1992). 10
When a question of potential bias on the part of a
prospective juror arises, whether based on an answer to a
question on the confidential juror questionnaire, a worksheet
prepared by the judge, or an oral statement made by or
attributed to the prospective juror, the judge has a duty to
make inquiry of the juror and determine whether the prospective
juror can be fair and impartial and render a true and just
verdict. G. L. c. 234, § 28. 7 See Commonwealth v. Clemente, 452
Mass. 295, 325 (2008) (when during jury selection judge learned
of improper conversations among some members of venire who had
7 General Laws c. 234, § 28, second par. provides, in pertinent part:
"For the purpose of determining whether a juror stands indifferent in the case, if it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including, but not limited to, community attitudes, possible exposure to potentially prejudicial material or possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court shall, or the parties or their attorneys may, with the permission and under the direction of the court, examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters which may . . . cause a decision or decisions to be made in whole or in part upon issues extraneous to the issues in the case. Such examination may include a brief statement of the facts of the case, to the extent the facts are appropriate and relevant to the issue of such examination, and shall be conducted individually and outside the presence of other persons about to be called as jurors or already called." 11
not yet been called, he conducted thorough inquiry of each
potential juror, excusing those who expressed doubts about
whether they could be impartial).
Impartiality in the context of whether a prospective juror
is indifferent and thus qualified to hear the case does not mean
that the individual has no opinions or views about any matter
directly or indirectly related to the case. "No human being is
wholly free of the interests and preferences which are the
product of his cultural, family, and community experience.
Nowhere is the dynamic commingling of the ideas and biases of
such individuals more essential than inside the jury
room." Commonwealth v. Soares, 377 Mass. 461, 487, cert.
denied, 444 U.S. 881 (1979). Rather, whether prospective jurors
are impartial depends on whether the jurors are able to "set
aside their own opinions, weigh the evidence (excluding matters
not properly before them), and follow the instructions of the
judge" (citation omitted). Commonwealth v. Bryant, 447 Mass.
494, 501 (2006). 8 "Juror bias is a question of fact to be
8 See Rule 6 (4) (h) of the Rules of the Superior Court, adopted in 2017, after the trial in this case. The Supreme Judicial Court has distinguished between a bias that arises from the facts of the case which is not disqualifying if the judge is satisfied that the prospective juror can set it aside and decide the case based solely on the evidence and the law, and a bias that is based on the juror's "life experience or belief system." In the latter circumstance, the judge must determine whether despite that bias the juror can be impartial because such biases 12
determined by the judge. A finding that a juror is impartial
will not be overturned on appeal unless the defendant makes a
clear showing of abuse of discretion or that the finding was
clearly erroneous." Commonwealth v. Emerson, 430 Mass. 378, 384
(1999), cert. denied, 529 U.S. 1030 (2000). See Commonwealth
v. Ferguson, 425 Mass. 349, 353-354 (1997); Long, 419 Mass. at
804 n.7; Commonwealth v. Ascolillo, 405 Mass. 456, 460 (1989).
In assessing the credibility of a prospective juror's answers to
questions by the judge or by counsel, the judge may accept a
juror's statement that he or she is impartial unless "solid
evidence of a distinct bias" appears. Commonwealth v. Leahy,
445 Mass. 481, 499 (2005). 9
may be impossible to set aside. Commonwealth v. Williams, 481 Mass. 443, 448-449 (2019).
9 See, e.g., Commonwealth v. Chongarlides, 62 Mass. App. Ct. 709, 711–712 (2004) ("Here, the juror indicated she 'knew' the victim. The judge appropriately questioned her as to the nature of the relationship and her ability to remain impartial. In light of the juror's explanation that she knew the victim only by virtue of living in the same town and having attended the same high school, it was not error for the judge to rely on her representation that she could be impartial"). In rare circumstances, the lack of impartiality among a significant number of prospective jurors may give rise to a presumption that none of the potential jurors are impartial. See Commonwealth v. Morales, 440 Mass. 536, 542 (2003). See also Commonwealth v. Mattier (No. 2), 474 Mass. 261, 275 (2016) ("We have recognized certain extreme circumstances where implied bias could be found: [1] where it is disclosed that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction; [2] in a case where the trials of 13
Recently, the Supreme Judicial Court stated that, "[a]s a
general principle, it is an abuse of discretion to empanel a
juror who will not state unequivocally that he or she will be
impartial." Commonwealth v. Colton, 477 Mass. 1, 17 (2017).
In Colton, in response to a juror's reservations about the
concept of lack of criminal responsibility, the judge explained
the law to the juror. When asked if he could be fair to both
the defendant and the Commonwealth, the juror responded, "Yes, I
think so." The Supreme Judicial Court concluded that the judge
did not err in empanelling the juror, observing that the juror's
response "fairly could be viewed as unequivocal, and the judge
apparently credited it as such." Id. It is clear, therefore,
from Colton, that the law does not require a prospective juror
to use a specific form of words (for example, "I will be
impartial") before a judge may determine that the juror is
impartial. Instead, the question whether a juror stands
indifferent "turns on credibility and is the province of the
trial judge." Leahy, 445 Mass. at 497. "It is well settled
that a potential juror's use of seemingly equivocal language is
not determinative of the juror's ability to be
codefendants are severed and an individual observes the first trial and sits as a juror in the second trial; and [3] where a juror who has been the victim of a similar crime . . . has consciously concealed that fact from the parties or the court" [quotations and citations omitted]). 14
impartial." Commonwealth v. Bannister, 94 Mass. App. Ct. 815,
827 (2019). 10 Contrast Long, 419 Mass. at 804 (juror who
admitted bias should have been excused because he said only that
he "hope[d]" he could be impartial); Commonwealth v. Auguste,
414 Mass. 51, 53, 58 (1992) (judge improperly empanelled several
jurors who repeatedly expressed grave misgivings about their
abilities to be impartial). 11 Furthermore, "a judge is not
10See Commonwealth v. Prunty, 462 Mass. 295, 302 (2012) (no abuse of discretion in seating African-American juror who initially stated without reservation that he could be impartial, but later stated he "would be able to do my best" to not let defendant's racial prejudice affect juror's ability to be impartial); Ascolillo, 405 Mass. at 459, 461 (no abuse of discretion in empanelling juror whose final answer to judge's inquiry about whether his experience as police officer and assault victim would make him partial was "[n]o, I don't think so"); Commonwealth v. Wilborne, 382 Mass. 241, 254 (1981) (no abuse of discretion in empanelling juror who stated that she "did not think" that her friend's experience as rape victim would affect her ability to be impartial); Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 273 (2002) (no abuse of discretion in seating juror where, after asking juror if he could decide case based "solely on the evidence you hear," juror replied, "I probably could do that," notwithstanding that juror had informed judge that girlfriend had been raped and assaulted nine years earlier and that he had participated in prosecution of case; and juror had stated that he had not formed opinion about case, but that "it might be difficult" for him to be impartial).
11Judges must be alert to jurors who on the one hand profess that they can be impartial, and yet "admit, contrarily, to those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them." Leahy, 445 Mass. at 498, quoting Commonwealth v. Sinnott, 399 Mass. 863, 883 (1987). See, e.g., Commonwealth v. Clark, 446 Mass. 620, 630 (2006) (juror should have been excused for cause where, "[a]lthough [she] represented that she could be impartial, [juror] explained that her ability to be impartial with respect to her views about African–Americans 'would depend 15
required to excuse a juror or allow [a] challenge for cause
simply because the juror reveals a potential bias upon initial
questioning. It is proper for the judge to question further in
order to clarify whether the juror could be
impartial." Commonwealth v. Jaime J., 56 Mass. App. Ct. 268,
274 (2002). In such cases, the question is whether, upon
further inquiry that is both meaningful and fair, 12 and an
assessment of the juror's credibility, the judge finds that the
verdict. See Leahy, 445 Mass. at 495.
In this case, the judge did not abuse her discretion in
concluding that the juror was impartial. The juror candidly
acknowledged her reservations but stated on three occasions that
she would be fair and impartial. The judge, who was present and
in a position to assess the demeanor of the juror, was entitled
on the person's circumstances.' This response [was] ambiguous, and might have been an expression of racial stereotyping that could have affected the outcome of the case. Further questioning was required to resolve the ambiguity").
12"Although the judge may reasonably determine, after a meaningful inquiry, that a juror's doubts about his or her own impartiality are unfounded, that determination should be made after the judge conducts an inquiry that could be reasonably expected to determine impartiality. . . . That determination should come from the juror's answers to the judge's questions, and not from answers suggested or, in fact, required by the questions. An inquiry into impartiality must be fair and neutral. Jurors should not be coerced into a particular response." Auguste, 414 Mass. at 57–58. 16
to conclude that the juror's additional comment ("to the best of
my ability") was not a retraction or qualification of the
juror's statement that she would be impartial, but rather merely
a form of speech. See Colton, 477 Mass. at 17. See
also Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 811
(2018). 13 Contrast Long, 419 Mass. at 799-800, 804 (error to
seat juror where defendant was of Cambodian ancestry and charged
with murder, juror stated he was opposed to war in Vietnam and
to Khmer Rouge, and, when asked if he could be impartial,
stated, "I would really hope that I could be"; fact that juror
also said earlier in colloquy, "I am more than willing to serve.
I will do my best," did not supply basis for judge's decision to
seat juror).
2. Duplicative convictions. The defendant argues that the
convictions of assault with intent to rape and indecent assault
and battery on a child should each be vacated as duplicative of
the convictions on the greater offense of rape of a child by
force. To convict a defendant of both a greater and lesser
included offense, the judge must "clearly instruct the jury that
13In reviewing an exercise of discretion by a trial judge, an appellate court must take into consideration the "nuances of conduct, tone, and evidence" that informed the decision made by the trial judge and that may "escape the cold record" on appeal. Commonwealth v. Preston, 393 Mass. 318, 324 (1984). 17
they must find that the defendant committed separate and
distinct criminal acts to convict on the different
charges." Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).
Where the judge fails to do so "the conviction of the lesser
included offense must be vacated as duplicative, even in the
absence of an objection, if there is any significant possibility
that the jury may have based convictions of greater and lesser
included offenses on the same act or series of acts." Id.
As to the conviction of assault with intent to rape a child
(G. L. c. 265, § 24B), this crime is a lesser included offense
of forcible rape of a child (G. L. c. 265, § 22A). Commonwealth
v. Egerton, 396 Mass. 499, 503 (1986). Accordingly, the assault
with intent to rape a child conviction was susceptible of being
duplicative of the two convictions of rape of a child by force.
See Kelly, 470 Mass. at 700.
The Commonwealth maintains that the assault with intent to
rape a child offense was intended to relate to the separate and
distinct incident at the defendant's apartment where the
defendant approached the victim with his pants down, and was
unsuccessful in carrying out the rape when she kicked in his
direction. However, the verdict slip for the assault with
intent to commit rape did not specify a date or a theory of the
crime, and the judge's instructions on the elements of assault
with intent to rape did nothing to specifically tie that offense 18
to a particular incident. Accordingly, we are unable to
determine what facts the jury used to support the conviction of
assault with intent to rape. Based on the other evidence
presented, the jury could have convicted the defendant of
assault with intent to rape (albeit as a lesser included
offense) based on either the incident in the van on the way to
school (finger in child's anal opening) or conduct at the
defendant's apartment (tongue in child's anal opening). As that
conduct was the subject of other indictments (for which the
defendant was ultimately convicted), a separate and distinct act
instruction should have been given to eliminate the risk of
duplicative convictions. Without such an instruction we cannot
say that there is no significant possibility that the conviction
on indictment one was duplicative of the convictions on the
greater offenses. See Kelly, 470 Mass. at 700. 14
3. Jury instructions. a. Collective memory. The
defendant contends that the judge erred by including certain
language in an instruction concerning the jury's fact-finding
function. The judge instructed:
14There is no significant possibility that the conviction of indecent assault and battery on a child under the age of fourteen was duplicative of the remaining convictions. The verdict slip for that offense specified "hand on child's vaginal area." The verdict slips for the other remaining convictions specified either "tongue in child's anal opening" or "finger in child's anal opening." 19
"Now, I'd like to call your attention to the fact that there may be evidence that you do not remember collectively as a jury. You are free to ignore that evidence if it is something that not all of you are comfortable [sic] because not all of you remember. It is your memory as a collective jury about what the testimony was, and that recollection is what should control your deliberations."
The defendant did not object to this instruction, so we review
to determine whether, if error, it created a substantial risk of
a miscarriage of justice. See Commonwealth v. Santos, 95 Mass.
App. Ct. 791, 795 n.7 (2019). The judge's choice of words is
unfortunate; jurors should not be instructed under any
circumstances to ignore evidence. The judge's use of the word
"ignore," taken out of context, is troubling. However, when
viewed in its entirety we think the instruction would have been
understood by the jury as a direction to consider all the
evidence, and to rely on their "collective memory." 15
Compare Commonwealth v. Miller, 457 Mass. 69, 78 (2010)
(instruction that "jurors' collective memory should control"
mitigated prosecutor's error in closing argument); Commonwealth
v. Colon, 449 Mass. 207, 225 n.18, cert. denied, 552 U.S. 1079
(2007) (same). Importantly, the judge in this case repeatedly
told the jury that their verdict must be unanimous, and that
they should not take a vote until each juror's point of view was
discussed and considered.
15Nothing we say in this opinion should be read as an endorsement of the use of such an instruction. 20
We are satisfied that, even if this particular expression
of the collective memory instruction was erroneous, any error
did not create a substantial risk of a miscarriage of justice.
To the extent that the instruction is viewed as ambiguous or at
least opaque, we are reassured by the fact that the judge
instructed the jury to "give a full and fair consideration to
all of the evidence in the case" and for each juror to "fully
and fairly express your opinion about the particular question
you're discussing."
b. Specific unanimity. The defendant also argues that the
judge's instruction on specific unanimity was defective. 16 As
the instruction was not objected to, we review to determine if
error, whether it created a substantial risk of a miscarriage of
16 In part, the judge instructed:
"You heard evidence -- some of it you may believe and some of it you may not -- it's up to you -- that certain events took place in the car, certain events took place in the house, certain events may have taken place in another house. There are a number of elements for each of those offenses. You must unanimously agree that all of the elements of the offense have been proved to find Mr. Rios guilty of some offense in a car or some offense in a house or some offense in a different house. In other words, you can't part of you agree that some things happened some places and some other things happened other places. That won't be enough to establish guilt beyond a reasonable doubt. You must unanimously agree that all the elements of the offense took place in one place or another or both. And, so, that is the Commonwealth's obligation." 21
justice. Santos, 95 Mass. App. Ct. at 795 n.7. A specific
unanimity instruction is required where an "indictment alleges
in statutory terms a criminal offense occurring during a period
of several months and, at trial, there is evidence that the
defendant committed several such offenses within that period
. . . ." Commonwealth v. Sanchez, 423 Mass. 591, 598 (1996). A
specific unanimity instruction explains that "the jury 'must be
unanimous as to which specific act constitutes the offense
charged.'" Id. at 598-599, quoting Commonwealth v. Conefrey,
420 Mass. 508, 512 (1995).
Apart from the conviction of assault with intent to rape,
which, as we explained above, we vacate on separate grounds, the
specific unanimity instruction was required for only the
indictment alleging indecent assault and battery on a child
under the age of fourteen, which specifically alleged "hand on
child's vaginal area" on diverse dates. 17 Based on the evidence
17The specific unanimity instruction was not required for the convictions on the two indictments that specifically alleged "finger in child's anal opening" because the victim testified that this conduct occurred only once. (The two convictions based on a single act -- one for aggravated rape of a child, and one for rape of a child by force -- were not duplicative, as each crime contains an element that the other does not. See Morey v. Commonwealth, 108 Mass. 433, 434 [1871].) As to the convictions on the two indictments alleging "tongue in child's anal opening[,]" the instruction was not required despite testimony that the conduct occurred multiple times because the victim did not describe particular incidents and instead testified only to a pattern of conduct. See Commonwealth v. Medina, 64 Mass. App. Ct. 708, 717 (2005) ("a specific unanimity 22
presented at trial, we discern no error. With respect to this
indictment, the jury heard evidence of conduct that could have
supported a conviction occurring in several different locations.
The judge properly instructed, "You must unanimously agree that
the Commonwealth has proved that [the defendant] committed the
offense on at least one occasion during the time frame alleged."
The subsequent instruction -- which apparently was made at the
joint request of the parties -- focused on the need for the jury
to unanimously agree that each offense occurred at a particular
location. This was correct. The jury did need to unanimously
agree on at least one location where the offense occurred. The
instruction was consistent with the first instruction on
unanimity and did nothing to negate that instruction.
c. Lesser included offenses. A lesser included offense
instruction should be given where "the evidence at trial
presents 'a rational basis for acquitting the defendant of the
crime charged and convicting him of the lesser included
offense.'" Commonwealth v. Donlan, 436 Mass. 329, 335 (2002),
quoting Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692
(1998).
The judge did not err in declining to instruct on
statutory rape as a lesser included offense of rape of a child
instruction is not required where the victim testifies to a pattern of repetitive and abusive conduct by the defendant"). 23
by force. The element that distinguishes the two crimes is the
use of force. Commonwealth v. Thayer, 418 Mass. 130, 132 (1994)
("[S]tatutory rape . . . differs from forcible rape because the
Commonwealth is not required to prove lack of consent, force, or
threat of bodily injury"). As the Commonwealth proceeded under
a theory of constructive force, it was required to prove "the
victim was afraid or that she submitted to the defendant because
his conduct intimidated her." Commonwealth v. Newcomb, 80 Mass.
App. Ct. 519, 521 (2011). Considering the age difference
between the defendant and the victim and the history of the
relationship, and particularly that the victim stopped one
episode of abuse by pulling her pants up and kicking in the
defendant's direction, and, further, that she initially denied
that she had been abused because, she testified, she was afraid,
there was no rational view of the evidence that would allow the
jury to conclude that the defendant penetrated the victim but
did not use fear or intimidation to do so. Moreover, because
the defendant testified and denied that he had even touched the
victim, "[h]e can hardly claim to be prejudiced by [the refusal
to give the] instruction . . . ." Thayer, 418 Mass. at 134.
Similarly, the judge did not err in declining to instruct on
indecent assault and battery on a child under the age of
fourteen on the greater offenses of rape of a child by force and
aggravated rape. Such an instruction was not required because 24
there was no "evidence that dispute[d] or put[] into question
the element of penetration." Donlan, 436 Mass. at 337. We
disagree with the defendant that the instruction was required
because evidence of penetration was unclear. The victim
testified to penetration. The defendant testified to never
inappropriately touching the victim. "[I]n ordinary
circumstances, [evidence to dispute the element of penetration]
cannot be the mere possibility that the jury might not credit a
portion of the Commonwealth's evidence, which of course they are
always free to do." Id.
4. Closing argument. Last, the defendant argues that the
prosecutor misstated facts in the closing argument. Having
reviewed the specific statements the defendant complains about
in his brief, which were not objected to, we believe that they
were nearly all the product of fair inferences based on the
evidence. See Commonwealth v. Cutty, 47 Mass. App. Ct. 671, 675
(1999) (party has "every right to make a closing argument based
upon and referring to [the] testimony and all fair inferences
which [can] be drawn therefrom"). See generally Mass. G. Evid.
§ 1113(b)(2) (2019). Assuming, without deciding, that it was
improper to argue that the defendant was trying to put "his
balls" in the victim's front private part based on the victim's
testimony that the defendant tried "to go to [her] front private
part" with his "balls" exposed, we are confident that this 25
statement did not create a substantial risk of a miscarriage of
justice given the judge's instructions concerning what is
evidence and in light of the fact that we vacate, on other
grounds, the only conviction that could have arisen from this
conduct.
Conclusion. The judgment on indictment one is vacated, the
verdict is set aside, and indictment one is to be dismissed.
The remaining judgments are affirmed.
So ordered.