Commonwealth v. Suero
465 Mass. 215
| Mass. | 2013Background
- Defendant moved in with his girlfriend and her four children; nine-year-old victim slept in same house.
- On December 28, 2005, the victim was touched and subjected to oral and digital penetration by the defendant in her bedroom.
- The victim informed her mother, police were notified, and the victim was hospitalized for examination.
- In 2006, indictments charged rape of a child with force under §22A and indecent assault and battery on a child under fourteen under §13B; indictments were amended to specify the acts.
- The judge instructed that each conviction must be based on separate acts; the jury convicted on both charges and defendant was sentenced to prison followed by probation.
- Court concluded the two offenses were duplicative; vacated the indecent assault conviction and affirmed the statutory rape conviction, remanding for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are indecent assault and battery of a child under fourteen and statutory rape separate acts? | Commonwealth argues separate acts supported both convictions. | Ireland argues the acts were not distinct; duplicative of rape. | Convictions not based on separate acts; duplicative offenses. |
| Should a judge or jury determine separateness of acts for these charges? | Commonwealth contends jury can determine separateness with proper instructions. | Ireland contends determinations should be by judge when acts are closely related. | Judge must determine separateness on defense request; jury instructed for separate acts is permissible but judge may decide in this context. |
| Does due process prohibit separate punishment for greater and lesser offenses when acts are not distinct? | Commonwealth maintains separate convictions are permissible if acts are distinct. | Ireland argues due process bars duplicative convictions when acts are incidental to the greater crime. | Due process bars separate convictions when acts are not distinct; vacate lesser offense. |
| What remedy follows where the lesser offense is duplicative of the greater? | Commonwealth seeks complete conviction and sentence on greater offense with possible multiple punishments. | Ireland seeks vacatur of lesser offense and sentence, affirming greater offense. | Vacate conviction and sentence on the lesser offense; affirm the greater offense and remand for resentencing. |
| Should the docket and indictment be corrected to reflect statutory rape rather than rape by force under §22A? | Commonwealth contends amendment form permits correction without prejudice. | Ireland did not contest the amendment's substance. | Docket amended to reflect statutory rape under §23; correction proper. |
Key Cases Cited
- Commonwealth v. Howze, 429 Mass. 502 (1999) (indecent assault and battery may be lesser included of statutory rape; separate acts required)
- Commonwealth v. Maldonado, 429 Mass. 502 (1999) (trial doctrine on separate and distinct acts; dual convictions limited)
- Commonwealth v. Porro, 458 Mass. 526 (2010) (lesser included offenses; duplicative conduct limits punishment)
- Commonwealth v. Vick, 454 Mass. 418 (2009) (separate and distinct acts required for multiple convictions)
- Commonwealth v. St. Pierre, 377 Mass. 650 (1979) (distinction between one crime and multiple offenses inquiry)
- Commonwealth v. Gouse, 461 Mass. 787 (2012) (double jeopardy and multiple convictions within greater/lesser charges)
- Commonwealth v. Jackson, 80 Mass. App. Ct. 528 (2011) (review of separate acts in dual convictions)
- Commonwealth v. Roderiques, 462 Mass. 415 (2012) (act-based separation in related offenses; timing/form of conduct considered)
- Commonwealth v. Hoyt, 461 Mass. 143 (2011) (indecent assault and battery vs. rape allegations; separation of acts)
- Commonwealth v. Roby, 462 Mass. 398 (2012) (elements of indecent assault and battery and statutory rape comparison)