113 N.E.3d 365
Mass. App. Ct.2018Background
- Defendant Reinaldo Prado was convicted after a jury trial of aggravated rape, three counts of armed robbery, and three counts of witness intimidation arising from two hotel robberies of sex‑work advertisers in January 2009.
- The aggravated rape conviction rested on evidence that, at gunpoint, Prado ordered a victim to insert her own fingers into her vagina; she complied under threat. The jury convicted on the count based on compelled self‑penetration but acquitted on a separate count alleging the defendant himself inserted his finger.
- Physical evidence included surveillance video, items recovered from the defendant (including a BB gun and zip ties), victims’ property, and statements to police. The trial judge (who also presided on the postconviction motion) instructed the jury that “unnatural sexual intercourse” includes intrusions of a part of a person’s body into another’s genital opening.
- After a Rule 1:28 appellate affirmance, defendant filed a motion for a new trial alleging ineffective assistance of trial counsel: (1) counsel failed to argue that G. L. c. 265, § 22 does not cover compelled self‑penetration; and (2) counsel failed to challenge alleged variance where indictments alleged a firearm but evidence showed a BB gun.
- The motion judge denied the new‑trial motion. The Appeals Court affirmed, holding compelled self‑penetration falls within § 22’s “unnatural sexual intercourse” and that the BB gun evidence supported an armed robbery conviction as a dangerous weapon or a replica reasonably perceived as a firearm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether compelled self‑penetration constitutes rape under G. L. c. 265, § 22 | Commonwealth: § 22’s phrase "unnatural sexual intercourse" is broadly construed to include intrusions and forced modes of sexual connection | Prado: § 22 requires penetration by the defendant or physical contact by defendant; compelled self‑penetration is outside statute and is ambiguous/vague | Held: Compelled self‑penetration is within "unnatural sexual intercourse"; counsel not ineffective for failing to argue otherwise |
| Whether indictment alleging a firearm was fatally inconsistent with trial evidence that defendant used a BB gun | Commonwealth: indictment alleged armed robbery "with a dangerous weapon," and a BB gun can be a dangerous weapon or reasonably appear to be a firearm | Prado: Trial counsel should have challenged variance because indictment said "to wit: firearm" while proof showed only a BB gun | Held: No fatal variance; "to wit" was superfluous; jury properly instructed on "dangerous weapon" and BB gun qualifies where victim reasonably believed it to be a real weapon; counsel not ineffective |
Key Cases Cited
- Commonwealth v. Gallant, 373 Mass. 577 (broad construction of "unnatural sexual intercourse" to include oral/anal acts and other intrusions)
- Commonwealth v. Cifizzari, 397 Mass. 560 (use of an object to penetrate victim qualifies as rape)
- Commonwealth v. Powell, 433 Mass. 399 (replica or fake weapon is a "dangerous weapon" when victim reasonably believes it is real)
- Commonwealth v. Garrett, 473 Mass. 257 (distinguishing indictments alleging a specific firearm from those alleging a dangerous weapon where evidence showed only a BB gun)
- Commonwealth v. Donlan, 436 Mass. 329 (penetration distinguishes rape from indecent assault and battery)
- Commonwealth v. Sherry, 386 Mass. 682 (essence of rape is penetration by force or threat)
- Commonwealth v. Nuby, 32 Mass. App. Ct. 360 (recognizing rape by compelled penetration performed by another)
- Commonwealth v. Guy, 24 Mass. App. Ct. 783 (defendants guilty where victim was forced to perform sexual acts involving penetration by another's body part)
- Commonwealth v. Scott, 464 Mass. 355 (statutory interpretation principles)
- Commonwealth v. Portonova, 69 Mass. App. Ct. 905 (notice that forcing a person to "play with herself" can constitute indecent assault and battery)