COMMONWEALTH vs. REINALDO PRADO.
No. 17-P-900.
Appeals Court
October 17, 2018.
Agnes, Neyman, & Sacks, JJ.
Middlesex. May 4, 2018. - October 17, 2018.
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Rape. Robbery. Practice, Criminal, Assistance of counsel. Words, “Unnatural sexual intercourse.”
Indictments found and returned in the Superior Court Department on March 31, 2009.
Following review by this court, 86 Mass. App. Ct. 1103 (2014), a motion for a new trial, filed on August 8, 2016, was heard by Kathe M. Tuttman, J.
Jeffrey G. Harris for the defendant.
Emily K. Walsh, Assistant District Attorney, for the Commonwealth.
NEYMAN, J. In this case, we are asked to determine whether the act of forcing a person to penetrate her own genital opening constitutes rape within the meaning of
Background. 1. Procedural history. Following a jury trial in the Superior Court, the defendant, Reinaldo Prado, was convicted of one count of aggravated rape, see
More than two years later, the defendant, represented by new counsel, filed a motion for new trial, claiming that his trial counsel was ineffective for (a) failing to argue that
2. Facts from trial. The charges against the defendant arose from two robberies and sexual attacks that occurred in Burlington and Tewksbury on January 24 and 25, 2009. In both instances, the defendant responded to advertisements for adult services on the Internet Web site “Craigslist,” arranged to meet the victims at a hotel, robbed them at gunpoint, and threatened to find or to kill them if they contacted the police.2 With respect to the January 24 incident, the defendant was convicted of aggravated rape for forcing the victim to put her fingers into her vagina. Specifically, during the robbery he pulled out a black gun, backed the victim into a computer chair in the hotel room, touched her breast, and emptied the contents of her purse onto the bed. After the victim grabbed her engagement ring from among those items, the defendant
The evidence at trial was corroborated through, among other things, (a) a surveillance video recording; (b) the defendant‘s statements to the police; (c) the retrieval of several items from the defendant and from his truck, including a BB gun, a box of commercial grade еlectrical zip ties consistent with those used to restrain two of the victims, a cellular telephone (cell phone) belonging to one of the victims, handwritten telephone numbers for other Craigslist advertisements offering adult services, and papers bearing the telephone number of one of the victims and the Burlington hotel address; and (d) the retrieval of another cell phone, laptop computers, laptop computer carrying cases, аnd passports, all belonging to the victims of the two incidents, located during a search of the defendant‘s apartment pursuant to a search warrant.
3. Legal standards. A motion for new trial may be granted only if it appears that justice may not have been done. Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). Such motions are committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and “are granted only in extraordinary circumstances,” Commonwealth v. Comita, 441 Mass. 86, 93 (2004). “Reversal for abuse of discretion is particularly rare where the judge acting on the motion was also the trial judge.” Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
Wherе, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (second prong of ineffective assistance test met if there is substantial risk of miscarriage of justice arising from counsel‘s failure).
Discussion
1. Aggravated rape. The defendant claims that
The Cоmmonwealth responds that the defendant‘s arguments ignore established case law broadly interpreting nonconsensual unnatural sexual intercourse to include myriad sexual acts forced on unwilling victims. See Commonwealth v. Gallant, 373 Mass. 577, 590 (1977). We conclude that Massachusetts law establishes that unnatural sexual intercourse is broad enough to include compelled penetration of a victim‘s genital opening.
Our analysis begins with the plain language of the statute and, in particular, the words “unnatural sexual intercourse.” “We interpret statutory language to give ‘effect consistent with its plain meaning and in light of the aim of the Legislature’ unless to do so would achieve an ‘absurd’ or ‘illogical’ result.” Commonwealth v. Scott, 464 Mass. 355, 358 (2013), quoting Sullivan v. Brookline, 435 Mass. 353, 360 (2001). “Words and phrases shall be construed according to the common and approved usage of the language.” Scott, supra, quoting Opinion of the Justices, 313 Mass. 779, 781-782 (1943). “However, the construction of a word or phrase may vary from its plain meaning when such a meaning would ‘involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute‘” (citation omitted). Scott, supra.
Prior to 1974,
We turn to the conduct at issue in the present case. The dеfendant, while brandishing a gun during an armed robbery, forced the victim, against her will, to penetrate her vagina with her fingers. We conclude that such conduct constitutes a “mode[] of sexual connection” that embodies an “equally serious invasion[] of personal integrity” as common-law rape. Gallant, supra at 585. As the judge noted in her order denying the motion for new trial, the “gravamen of the [rape] charge, as set forth in the statute, is sexual penetration by force and against the [victim‘s] will or by threat of bodily injury.” See Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001) (“Sexual intercourse is defined as penetration of the victim, regardless of degree“); Commonwealth v. Sherry, 386 Mass. 682, 687 (1982) (“The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim‘s will or
The defendant counters that the definition of unnatural sexual intercourse does not include the conduct at issue hеre, because “[t]here was no physical contact.” We disagree. First, there was physical contact here -- offensive, intrusive, and forced physical contact -- in the form of the victim‘s fingers inserted into her vagina by command of the armed defendant, backed by the threat of deadly force.
Second, to the extent that the defendant contends that there was no physical contact “by the defendant,” the argument is still unavailing. Pursuant to
Third, and finally, we disagree with the defendant‘s argument that there was no physical сontact within the meaning of Gallant because there was no “intrusion[] of a part of a person‘s body or other object into the genital or anal opening of another person‘s body.” Gallant, 373 Mass. at 584.5 The facts of this case epitomize what
criminal sexual assault statute); Kirby v. State, 625 So. 2d 51, 55 (Fla. Dist. Ct. App. 1993) (where defendant forced victim to insert her fingers into her vagina, court held that finger is “object” within context of Florida sexual battery statute). That the defendant here chose to penetrate the victim with her fingers does not render the act a lesser crime. To the contrary, Gallant instructs that in view of the innumerable ways in which rape may be perpetrated, courts should not create artificial limits on the meaning of unnatural sexual intercourse. See id. at 590 (“[i]t is probable that the Legislature deemed fruitless any attempt to delineate the full variety of coercive sexual intrusions it wished to include in the overarching term ‘unnatural sexual intercourse‘“). See also Scott, supra (“If [the defendant] had grabbed [the victim‘s] hand and physically placed it in her vagina, we would not entertain any argument that intrusion had not occurred because her hand was not an object. The only difference between the hypothetical and the evidence here is the manner in which the assailant intruded the object upon the victim“). We decline to do so here, where “[i]t is difficult to imagine conduct more violative of social and behavioral expectations, or more disruptive of psychic integrity.” Gallant, supra at 589-590. See Commonwealth v. Chretien, 383 Mass. 123, 131 (1981), quoting Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 648-649 (1978) (construction of statute “should аdvance rather than defeat the purpose of the statute“).
We likewise reject the defendant‘s arguments that
Moreover, the defendant was also on notice that the distinction between the crimes of rape and indecent assault and battery is the element of penetration. See Commonwealth v. Donlan, 436 Mass. 329, 335-336 (2002) (“Indecent assault and battеry is a lesser included offense of rape of a child by force. . . . The difference between the two offenses is the element of penetration“); Commonwealth v. Walker, 426 Mass. 301, 304 (1997) (elements of rape and indecent assault and battery are same “except for the aggravating factor of penetration in the rape charge that distinguishes the greater offense from the lesser offense“). Where the evidence in the present case involved the additional element оf penetration, and where the defendant was on notice of the rulings in Gallant and Portonova, supra, he had sufficient notice that his conduct constituted rape and derives no benefit from the rule of lenity. See Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 787 (1989) (evidence of penetration necessary to prove acts of rape “in order to differentiate those acts from other prohibited sexual touchings“). In addition, a holding that an indecent assault and battery, aggravated by penetration, constitutes the same offense as a forced touching without penetration would create an illogical and absurd result. See Scott, 464 Mass. at 358. Accordingly, the statute and Massachusetts common law provide the
In sum, the defendant‘s act of forcibly penetrating the victim‘s vagina with her own fingers fell within the scope of unnatural sexual intercourse under
2. Armed robbery indictment. Citing Commonwealth v. Garrett, 473 Mass. 257 (2015), the defendant also contends that his trial counsel was ineffective for not challenging the purported discrepancy between the armed robbery indictment and the evidence, which proved only that he used a BB gun and not a “dangerous weapon, to wit: firearm” as alleged in the indictment. The argument is unavailing.
In Garrett, 473 Mass. at 257-258, the defendant was indicted and convicted of masked armed robbery by means of a firearm. Id. at 257-258. The defendant was not charged with armed robbery by means of a dangerous weapon. Id. at 258 n.1. Rather, the relevant indictments alleged, among other things, that the defendant, armed “with a handgun,” committed armed robbery while masked (emphasis supplied). Id. at 264. The evidence at trial, however, showed that the defendant used a BB gun. Id. at 258. The Supreme Judiсial Court vacated the judgment because the court determined that a BB gun is not a firearm for the purpose of the armed robbery statute and, thus, the evidence in support of the indictment was insufficient. Id. at 263-264. The case was remanded for entry of a verdict of guilty on the lesser included offense of unarmed robbery. See id. at 267. The court noted that “[t]he defendant was not indicted for, and thus cannot be convicted of, armed robbery with a dangerous weapon.” Id. at 267 n.12.
In the рresent case, by contrast, the evidence was sufficient to support the crime as charged in the indictment. The armed robbery
because the BB gun in this case was a dangerous weapon, which under our case law includes a weapon that appears to be a firearm, even if not actually a firearm“). Where, as here, “it reasonably appeared, in all the circumstances, that the object in the defendant‘s possession was capable of inflicting serious bodily injury or death, the jury could conclude that that object was a dangerous weapon and that the robbery was therefore an armed robbery.”8 Powell, supra at 404.
The defendant maintains that the problem raised in Garrett nonetheless persists here because the indictment specified the dangerous weapon as, “to wit: firearm.” We disagree. The “to wit” language in the indictment constituted a nonfatal variance under our precedent. See Commonwealth v. Harris, 9 Mass. App. Ct. 708, 710-711 (1980) (judgment predicated on armed robbery with gun affirmed where Commonwealth tried case on basis of victim‘s testimony that underlying robbery was committed with
“was armed with a dangerous weapon,” and did not specify that the weapon must be a firearm.9 Thus, in the context оf this case, the “to wit” language was superfluous. See Commonwealth v. Grasso, 375 Mass. 138, 139 (1978) (“a defendant is not to be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense“); Commonwealth v. A Juvenile, 365 Mass. 421, 440 (1974) (language in indictment or complaint specifying means of death is superfluous and, thus, “defendant is not entitled to an acquittal by reason of the Commonwealth‘s failure to prove unnecessаry allegations in the description of a crime“); Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930 (1988) (“The language in the indictment specifying the particular weapon used is superfluous“). Finally, “[t]he particular type of weapon with which the armed robbery was committed was not an essential element of the crime” of armed robbery. Harris, supra at 712. Accordingly, the defendant has failed to demonstrate ineffective assistance of counsel and, thus, the judge correctly denied the motion for new trial on this basis.
Order denying motion for new trial affirmed.