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-695
COMMONWEALTH
vs.
WILLIAM BENITEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the Superior Court, the
defendant was convicted of one count of rape of a child under
twelve years old, aggravated by a five-year age difference
between the defendant and the victim.1 He argues on appeal that
the Commonwealth presented insufficient evidence to sustain his
conviction, that the trial judge committed various errors during
the trial, and that his trial attorney rendered ineffective
assistance of counsel. We affirm.
1 The judge allowed motions for directed findings of not guilty on a second indictment of rape of a child, an indictment of indecent assault and battery, and an indictment of dissemination of matter harmful to a minor. Background. The defendant and the victim's mother (mother)
married in 2011.2 In the summer of 2014, the mother occasionally
left the victim in the defendant's care when she was not home.
The victim testified that when the defendant cared for her while
the victim's mother was not home, he touched her "private part"
with "[h]is hand." The victim -- aged eleven at the time of
trial and six at the time of the underlying events -- stated
that the defendant touched "the inside" of her body part that
she used "to pee."
During cross-examination, the victim struggled to recall
details and could not remember how many times the defendant
touched her. Defense counsel asked if "any part of his body
[went] inside of [her] private parts," and the victim answered,
"No." During redirect examination, the Commonwealth asked the
victim, "You just said that the defendant never went inside your
body part, correct?" The victim responded, "Yes." The
Commonwealth then asked, "Where would he go with his hand?" The
victim answered, "In my private part."
In his finding, the judge explained that the victim's
testimony was "credible, consistent and reasonably clear and
detailed as to all material elements of the sexual assault she
described." The judge provided "[s]ome allowance" for the fact
2 The victim is not the defendant's biological child.
2 that the victim "is a young girl with learning disabilities that
are evident, appearing in an unfamiliar courtroom environment,
and being asked questions about events occurring five years ago
when she was just [six] years old." Therefore, the judge
explained that "[o]ne would expect a certain amount of
imprecision and failed memory on collateral details, such as
dates and the like." The judge reasoned further "that the
limitations in the child's memory actually belie the suggestions
of coaching and fabrication at the heart of the defendant's
[d]efense."
Discussion. 1. Sufficiency of the evidence. In
determining the sufficiency of the evidence at trial, we ask
"whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt"
(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,
677 (1979). See Commonwealth v. Powell, 459 Mass. 572, 578-579
(2011), cert. denied, 565 U.S. 1262 (2012). "The inferences
that support a conviction 'need only be reasonable and possible;
[they] need not be necessary or inescapable.'" Commonwealth v.
Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth
v. Woods, 466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014).
"To prove the crime of rape of a child in violation G. L.
c. 265, § 23, the Commonwealth must prove beyond a reasonable
3 doubt that the defendant engaged in (1) sexual intercourse or
unnatural sexual intercourse with (2) a child under sixteen
years of age." Commonwealth v. Lawton, 82 Mass. App. Ct. 528,
533 (2012). The act underlying this case concerns "unnatural
sexual intercourse," which involves penetration of one person's
bodily orifice, such as the vagina, by means of another person's
body part other than a penis, "such as . . . a finger."3
Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 87 (2021).
"Furthermore, 'penetration' does not require actual entry into
the vagina; . . . '[t]ouching . . . of the vulva or labia . . .
is intrusion enough.'" Id., quoting Commonwealth v. Donlan, 436
Mass. 329, 336 (2002).
Viewed in the light most favorable to the Commonwealth, the
victim's trial testimony was sufficient to sustain the
defendant's conviction. The victim testified that the defendant
touched her "private part" with "[h]is hand," an act that
constitutes penetration by means other than the penis. See
Seesangrit, 99 Mass. App. Ct. at 87.4 Where the Commonwealth's
case focuses on the victim's testimony, "extrinsic, or forensic
3 Because the defendant does not contest the age of the victim, we analyze only the sufficiency of the evidence as to whether the defendant engaged in unnatural sexual intercourse.
4 Although the defendant argues that one of the victim's other answers contradicted this, we agree with the judge's reading of the testimony that there was no necessary contradiction.
4 evidence, or expert or third-party witness testimony, is [not]
required to support a conviction of rape or sexual assault."
Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021).
Therefore, "the victim's testimony, as credited by the [judge]
and evidenced by [his finding], suffices to support the
defendant's conviction[]" because "[t]he sworn testimony of the
victim of a sexual assault, including rape, is evidence of the
facts asserted." Id.
The defendant's sufficiency argument relies on an attack on
the victim's credibility. However, in reviewing the sufficiency
of the evidence, we "do not weigh the credibility of the
witnesses," because "[w]e consider the evidence most favorable
to the Commonwealth." Commonwealth v. Johnson, 53 Mass. App.
Ct. 732, 733-734 (2002). Further, we cannot "substitute our
judgment for that of the judge on credibility questions."
Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012).
Therefore, we conclude that the evidence presented at trial was
sufficient to sustain the defendant's conviction.
2. Competency. The defendant contends that the trial
judge failed to "adequately vet" the victim for competency
before her testimony. Because the defendant did not challenge
the victim's competency at trial, we review for a substantial
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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-695
COMMONWEALTH
vs.
WILLIAM BENITEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the Superior Court, the
defendant was convicted of one count of rape of a child under
twelve years old, aggravated by a five-year age difference
between the defendant and the victim.1 He argues on appeal that
the Commonwealth presented insufficient evidence to sustain his
conviction, that the trial judge committed various errors during
the trial, and that his trial attorney rendered ineffective
assistance of counsel. We affirm.
1 The judge allowed motions for directed findings of not guilty on a second indictment of rape of a child, an indictment of indecent assault and battery, and an indictment of dissemination of matter harmful to a minor. Background. The defendant and the victim's mother (mother)
married in 2011.2 In the summer of 2014, the mother occasionally
left the victim in the defendant's care when she was not home.
The victim testified that when the defendant cared for her while
the victim's mother was not home, he touched her "private part"
with "[h]is hand." The victim -- aged eleven at the time of
trial and six at the time of the underlying events -- stated
that the defendant touched "the inside" of her body part that
she used "to pee."
During cross-examination, the victim struggled to recall
details and could not remember how many times the defendant
touched her. Defense counsel asked if "any part of his body
[went] inside of [her] private parts," and the victim answered,
"No." During redirect examination, the Commonwealth asked the
victim, "You just said that the defendant never went inside your
body part, correct?" The victim responded, "Yes." The
Commonwealth then asked, "Where would he go with his hand?" The
victim answered, "In my private part."
In his finding, the judge explained that the victim's
testimony was "credible, consistent and reasonably clear and
detailed as to all material elements of the sexual assault she
described." The judge provided "[s]ome allowance" for the fact
2 The victim is not the defendant's biological child.
2 that the victim "is a young girl with learning disabilities that
are evident, appearing in an unfamiliar courtroom environment,
and being asked questions about events occurring five years ago
when she was just [six] years old." Therefore, the judge
explained that "[o]ne would expect a certain amount of
imprecision and failed memory on collateral details, such as
dates and the like." The judge reasoned further "that the
limitations in the child's memory actually belie the suggestions
of coaching and fabrication at the heart of the defendant's
[d]efense."
Discussion. 1. Sufficiency of the evidence. In
determining the sufficiency of the evidence at trial, we ask
"whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt"
(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,
677 (1979). See Commonwealth v. Powell, 459 Mass. 572, 578-579
(2011), cert. denied, 565 U.S. 1262 (2012). "The inferences
that support a conviction 'need only be reasonable and possible;
[they] need not be necessary or inescapable.'" Commonwealth v.
Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth
v. Woods, 466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014).
"To prove the crime of rape of a child in violation G. L.
c. 265, § 23, the Commonwealth must prove beyond a reasonable
3 doubt that the defendant engaged in (1) sexual intercourse or
unnatural sexual intercourse with (2) a child under sixteen
years of age." Commonwealth v. Lawton, 82 Mass. App. Ct. 528,
533 (2012). The act underlying this case concerns "unnatural
sexual intercourse," which involves penetration of one person's
bodily orifice, such as the vagina, by means of another person's
body part other than a penis, "such as . . . a finger."3
Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 87 (2021).
"Furthermore, 'penetration' does not require actual entry into
the vagina; . . . '[t]ouching . . . of the vulva or labia . . .
is intrusion enough.'" Id., quoting Commonwealth v. Donlan, 436
Mass. 329, 336 (2002).
Viewed in the light most favorable to the Commonwealth, the
victim's trial testimony was sufficient to sustain the
defendant's conviction. The victim testified that the defendant
touched her "private part" with "[h]is hand," an act that
constitutes penetration by means other than the penis. See
Seesangrit, 99 Mass. App. Ct. at 87.4 Where the Commonwealth's
case focuses on the victim's testimony, "extrinsic, or forensic
3 Because the defendant does not contest the age of the victim, we analyze only the sufficiency of the evidence as to whether the defendant engaged in unnatural sexual intercourse.
4 Although the defendant argues that one of the victim's other answers contradicted this, we agree with the judge's reading of the testimony that there was no necessary contradiction.
4 evidence, or expert or third-party witness testimony, is [not]
required to support a conviction of rape or sexual assault."
Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021).
Therefore, "the victim's testimony, as credited by the [judge]
and evidenced by [his finding], suffices to support the
defendant's conviction[]" because "[t]he sworn testimony of the
victim of a sexual assault, including rape, is evidence of the
facts asserted." Id.
The defendant's sufficiency argument relies on an attack on
the victim's credibility. However, in reviewing the sufficiency
of the evidence, we "do not weigh the credibility of the
witnesses," because "[w]e consider the evidence most favorable
to the Commonwealth." Commonwealth v. Johnson, 53 Mass. App.
Ct. 732, 733-734 (2002). Further, we cannot "substitute our
judgment for that of the judge on credibility questions."
Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012).
Therefore, we conclude that the evidence presented at trial was
sufficient to sustain the defendant's conviction.
2. Competency. The defendant contends that the trial
judge failed to "adequately vet" the victim for competency
before her testimony. Because the defendant did not challenge
the victim's competency at trial, we review for a substantial
risk of a miscarriage of justice. See Commonwealth v. McGann,
5 484 Mass. 312, 322 (2020). We are not persuaded that such risk
is posed here.
"Any person of sufficient understanding, although a party,
may testify in any proceeding, civil or criminal." G. L.
c. 233, § 20. Witness competency is governed by a two-prong
test:
"(1) whether the witness has the general ability or capacity to 'observe, remember, and give expression to that which she ha[s] seen, heard, or experienced'; and (2) whether she has 'understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment'" (citation omitted).
Commonwealth v. Thibeault, 77 Mass. App Ct. 419, 423-424 (2010).
In reviewing a trial judge's determination of the competency of
a child witness, "[i]t is seldom that the discretion of the
trial judge can be revised," because the printed record cannot
reproduce the child's appearance and manner, which are
characteristics central to the competency inquiry (citation
omitted). Id. at 424. "The determination of competency is
peculiarly in the province of the judge." Commonwealth v.
Brusgulis, 398 Mass. 325, 329 (1986), quoting Commonwealth v.
Widrick, 392 Mass. 884, 888 (1984).
Here, the defendant seizes on the fact that the victim
raised the wrong hand while taking the oath, arguing that the
victim's supposed failure to follow a basic instruction
6 undermines her competency. However, the record suggests that
the clerk was speaking quickly as the victim asked the clerk to
repeat her instruction, and the judge asked the clerk to speak
slower. The defense also raises other inconsistencies in the
victim's testimony, discussed supra, but those inconsistencies
are not relevant to the competency inquiry where the judge found
the victim's testimony "compelling and entirely believable" and
"not impeached in any meaningful way."5
3. Testimony about the victim's learning disability. The
defendant contends that the mother's testimony about the
victim's "unidentified" learning disability was error. We
disagree.
"A defendant cannot challenge the admission of such
testimony on appeal when he was the one to elicit it at trial."
5 In his reply brief, the defendant asserts that Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213, 217 (1997), imposes an independent duty on the trial judge to conduct a competency hearing, sua sponte, when testimonial inconsistencies raise doubts about the competency of a given witness. "We need not pass on grounds for reversal raised for the first time in a reply brief." Commonwealth v. McGowan, 400 Mass. 385, 390 n.4 (1987). Nevertheless, the defendant's assertion misrepresents the language of Lamontagne, supra, which merely permits rather than requires a judge to conduct a competency inquiry sua sponte. See id. ("Although as matter of law a trial judge is not mandated to conduct a voir dire on competency in the absence of an objection, there is nothing to prevent him from doing so sua sponte as matter of discretion where doubt as to competency exists upon seeing and hearing the witness testify").
7 Commonwealth v. Aspen, 53 Mass. App. Ct. 259, 265 (2001). Once
the defendant elicits a certain inference on cross-examination,
"the Commonwealth [is] entitled to rebut the inference . . . by
briefly eliciting other details" about it on recross-
examination. Id. at 266.
Here, on cross-examination, the defendant asked the mother
about the victim's "difficulties" in school, eliciting testimony
from the mother that the victim had repeated the first grade.
On redirect examination, the Commonwealth asked the mother about
the "issues" the victim had in school, eliciting testimony from
the mother that the victim had a "series of learning
disabilities" that had "never been identified." Because the
defense introduced the testimony, the Commonwealth was entitled
to elicit other details about the victim's issues in school.
See Aspen, 53 Mass. App. Ct. at 266.
4. The sexual assault nurse examiner (SANE) testimony.
The defendant contends that the prosecutor improperly elicited
opinion testimony from the SANE in violation of a pretrial
ruling precluding such testimony, which created a substantial
risk of a miscarriage of justice. This claim is unavailing.
In a jury-waived trial, "[w]e presume . . . judges will
have correctly instructed [themselves] as to the manner in which
evidence was to be considered in [their] role as factfinder"
8 (quotation and citation omitted). Commonwealth v. Garvey, 99
Mass. App. Ct. 139, 143 (2021).
Before trial, the judge allowed the defendant's motion in
limine to prohibit the SANE, who examined the victim in 2017,
from testifying to her opinion that a normal result does not
foreclose the possibility that a sexual assault occurred.
Despite the judge's ruling, the witness twice testified to her
opinion during direct examination. The defense failed to object
the first time she gave her opinion. In the second instance,
the defense objected, and the judge sustained the objection.6
Where the defendant objected, we review for prejudicial
error and inquire "whether there is a reasonable possibility
that the error might have contributed" to the judge's finding
(citation omitted). Commonwealth v. Henley, 488 Mass. 95, 127
(2021).
The defendant fails to demonstrate any prejudice from the
SANE's testimony. The judge did not refer to her testimony in
rendering his finding, where he credited the victim's testimony
and found it "compelling" and "consistent." Because nothing in
6 On cross-examination, the defendant asked the witness if she agreed the examination revealed a normal result. Because the defendant elicited the improper testimony, we do not consider that instance. Commonwealth v. Elder, 389 Mass. 743, 754 (1983) ("Since the defendant elicited the statement on cross-examination, he cannot now complain of its prejudicial effect").
9 the record shows that the judge relied on the improper
testimony, we conclude the admission of the testimony did not
prejudice the defendant. See Commonwealth v. Healey, 452 Mass.
510, 514 (2008) (no prejudice in admission of improper evidence
where trial judge assumed to correctly instruct himself on law).
5. Ineffective assistance of counsel. The defendant
contends that trial counsel was ineffective because of his
failure to challenge the victim's competency and his failure to
"object to, or seek to exploit in any way," the mother's
testimony about the victim's learning disabilities. We are not
persuaded.
To sustain a claim of ineffective assistance of counsel,
the defendant must show that "behavior of counsel falling
measurably below that which might be expected from an ordinary
fallible lawyer . . . likely deprived the defendant of an
otherwise available, substantial ground of [defense]."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[T]he
preferred method for raising a claim of ineffective assistance
of counsel is through a motion for a new trial." Commonwealth
v. Zinser, 446 Mass. 807, 810 (2006). "[A]n ineffective
assistance of counsel challenge made on the trial record alone
is the weakest form of such a challenge because it is bereft of
any explanation by trial counsel for his actions and suggestive
of strategy contrived by a defendant viewing the case with
10 hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5
(2002). Therefore, a "claim of ineffective assistance may be
resolved on direct appeal of the defendant's conviction [only]
when the factual basis of the claim appears indisputably on the
trial record." Zinser, supra at 811. "A tactical decision by
trial counsel is considered ineffective assistance only if such
a decision was manifestly unreasonable when made." Commonwealth
v. Diaz, 448 Mass. 286, 288 (2007).
The defendant raises his ineffective assistance claim based
solely on the trial record and without any explanation by trial
counsel for his actions and trial strategy. Here, on the record
before us, we conclude that the defendant has failed to
establish that trial counsel's tactical decisions were
11 manifestly unreasonable and that none of the claimed failures by
counsel was likely to have influenced the judge's decision.7
Judgment affirmed.
By the Court (Rubin, Neyman & Tan, JJ.8),
Clerk
Entered: July 28, 2025.
7 We note that the judge entered directed findings on three of the four indictments, making it "difficult to find that the admission of the evidence caused prejudice." Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997).
8 The panelists are listed in order of seniority.