Commonwealth v. Prado ( 2018 )

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17-P-900 Appeals Court
COMMONWEALTH vs. REINALDO PRADO.
No. 17-P-900.
Middlesex. May 4, 2018. - October 17, 2018.
Present: Agnes, Neyman, & Sacks, JJ.
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 G. L. c. 265, § 22. We
hold that it does, and thus affirm the order denying the
defendant's motion for new trial.
2
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 G. L. c. 265,
§ 22 (a), three counts of armed robbery, see G. L. c. 265, § 17,
and three counts of witness intimidation, see G. L. c. 268,
§ 13B. Represented by the same attorney he had at trial, the
defendant appealed. A panel of this court affirmed the
judgments in a decision issued pursuant to our rule 1:28. See
Commonwealth v. Prado, 86 Mass. App. Ct. 1103 (2014).
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
G. L. c. 265, § 22, does not contemplate rape by compelled self-
penetration; and (b) failing to challenge the sufficiency of the
evidence of armed robbery where the Commonwealth proved only
that the defendant used a BB gun and not a firearm as alleged in
the indictment. Following a hearing, the judge1 issued a written
memorandum of decision and order denying the motion for new
trial. The defendant now appeals therefrom.
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
1 The motion judge also was the trial judge.
3
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 directed her at
gunpoint to insert her fingers into her vagina. The victim did
so, against her will.3
2 With respect to the January 25, 2009, attack, the
defendant bound the victims' hands together with zip ties; stole
from them $340 cash, two passports, two cellular telephones,
bank cards, drivers' licenses, and two computers; ordered one
victim to perform oral sex on the other; and warned them that he
had their identification and would kill them if they contacted
the police. As to this incident, the jury convicted the
defendant of armed robbery and intimidation of a witness, and
acquitted him of aggravated rape and indecent assault and
battery.
3 The defendant was also charged with and prosecuted for
another count of rape predicated on evidence that he forced his
finger into the victim's vagina. As reflected by the specific
verdict slips, the jury acquitted the defendant on that count,
but convicted him of rape for forcing the victim to penetrate
her vagina with her own fingers.
4
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 electrical 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, and 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).
5
Where, 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 G. L. c. 265, § 22, does not criminalize compelled self-
penetration. He contends that because there was no physical
contact between the defendant and the victim, the evidence
failed to satisfy the plain language of the statute requiring
"unnatural sexual intercourse." He further argues that there is
no Massachusetts precedent allowing a conviction of rape upon
evidence of compelled self-penetration, that § 22 is ambiguous
and thus must be construed against the Commonwealth under the
rule of lenity, and that § 22 is unconstitutionally vague.
The Commonwealth 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
6
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, G. L. c. 265, § 22, provided: "Whoever
ravishes and carnally knows a female by force and against her
will shall be punished." By St. 1974, c. 474, § 1 (1974
amendment), entitled "An Act redefining the elements
constituting the crime of rape and related offenses," the
Legislature amended § 22. The new language provided, in
relevant part, "Whoever has . . . unnatural sexual intercourse
7
with a person, and compels such person to submit by force and
against his will," shall be guilty of rape.4
In Gallant, 373 Mass. at 583-584, the Supreme Judicial
Court analyzed the meaning and the impact of the 1974 amendment,
and held that it extended the protections of the Massachusetts
rape statutes. The 1974 amendment effected a significant change
in the law beyond abolishing artificial distinctions based on
gender and replacing the archaic terminology of "ravishing" and
"carnal knowledge" with the more contemporary "sexual
intercourse." Id. at 584. Indeed, the 1974 amendment
"necessarily rework[ed] the common law definition of rape," and
"must be viewed as part of a comprehensive attempt to redefine
the legal elements of rape." Id. at 583, 584. Under the
amended law, "the definition of 'unnatural sexual intercourse'
must be taken to include oral and anal intercourse, including
fellatio, cunnilingus, and other intrusions of a part of a
person's body or other object into the genital or anal opening
of another person's body." Id. at 584. Moreover, the court
4 By St. 1980, c. 459, § 6, entitled "An Act providing
graduated penalties and victim compensation for the crime of
rape and related offenses," the Legislature further amended
G. L. c. 265, § 22. Among other things, this amendment created
subsections "(a)" (delineating elements and punishment for
aggravated rape) and "(b)" (delineating elements and punishment
for nonaggravated rape), provided that rape committed "during
the commission" of armed robbery or other enumerated crimes
constituted aggravated rape, and provided enhanced penalties for
rape committed with aggravating circumstances.
8
specified that the scope of the term "unnatural sexual
intercourse" is "broad," and that "the Legislature necessarily
intended to treat modes of sexual connection other than common
law rape as equally serious invasions of personal integrity."
Id. at 584-585, 590. Consistent with the tenets of Gallant,
subsequent case law recognized various modes and means of rape.
See, e.g., Commonwealth v. Nuby, 32 Mass. App. Ct. 360, 362
(1992); Commonwealth v. Guy, 24 Mass. App. Ct. 783, 786-787
(1987).
We turn to the conduct at issue in the present case. The
defendant, 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
9
force and against the victim's will or compelled by threat of
bodily injury"). That is what occurred here.
The defendant counters that the definition of unnatural
sexual intercourse does not include the conduct at issue here,
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 G. L. c. 265, § 22 (a), "there
is no requirement that the sexual contact involve penetration of
the victim by the perpetrator." Guy, 24 Mass. App. Ct. at 786.
Rather, our precedent recognizes the myriad ways by which rape
is perpetrated, even without physical contact by the defendant.
See, e.g., Nuby, 32 Mass. App. Ct. at 362 (defendant guilty of
forcible rape of child for compelling girl friend's son to
penetrate her vagina with his tongue and fingers); Guy, supra at
784-787 (defendants guilty of rape for forcing victim to perform
cunnilingus on two consenting females). See also State v.
Thomas, 619 S.W.2d 513, 513 (Tenn. 1981) (defendant guilty of
rape where he forced victim at gunpoint to perform oral sex on
her husband). The common thread in these cases is some form of
10
forced penetration compelled by the defendant, and not a literal
touching by the defendant. Cf. Commonwealth v. Davidson, 68
Mass. App. Ct. 72, 74 (2007) ("our cases do not require that the
defendant himself perform the touching" to be convicted of
indecent assault and battery).
Third, and finally, we disagree with the defendant's
argument that there was no physical contact 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 § 22 (a) prohibits: an
intrusion into another's (i.e., the victim's) genital opening,
by an object -- the victim's own fingers -- committed through
the force of the defendant. See Lopez, 433 Mass. at 726-727
("Sexual intercourse is defined as penetration of the victim,
regardless of degree"); Commonwealth v. Cifizzari, 397 Mass.
560, 562, 576-577 (1986) (defendant's use of mop handle to
penetrate victim constitutes rape within meaning of statute).
See also People v. Scott, 271 Ill. App. 3d 307, 313 (1994)
(victim's finger is object within meaning of Illinois aggravated
5 Consistent with the language in Gallant, the judge here
instructed the jury, in relevant part, that "[u]nnatural sexual
intercourse includes oral and anal intercourse including
[fellatio] and cunnilingus and other intrusions of a part of a
person's body or other object into the genital or anal opening
of another's body."
11
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)
12
(construction of statute "should advance rather than defeat the
purpose of the statute").
We likewise reject the defendant's arguments that G. L.
c. 265, § 22 (a), is unconstitutionally vague, and that the rule
of lenity mandates a different result. The defendant had
sufficient notice that his actions constituted criminal
felonious conduct as delineated in Gallant, 373 Mass. at 584-587
(articulating meaning of unnatural sexual intercourse and
rejecting claim that child rape statute is unconstitutionally
vague). See Robinson v. Berman, 594 F.2d 1, 2 (1st Cir. 1979)
("A statute whose terms have a commonly understood meaning or
have been clarified by judicial explanation or by application to
particular conduct is not unconstitutionally vague").
Furthermore, the defendant was on notice that the act of
compelling a person to "play with herself" constitutes indecent
assault and battery. Commonwealth v. Portonova, 69 Mass. App.
Ct. 905, 905 (2007). The rulings in Gallant, 373 Mass. at 584-
587, and Portonova, supra at 905-906, negate the defendant's
claim that the rape statute is unconstitutionally vague. "The
essence of the fair warning requirement embodied in the due
process clause is that a person should not be punished for an
act he could not know was criminal." Robinson, supra at 3. A
person who commits an act while on notice that it violates one
statute "ha[s] no cause to complain that he had no notice his
13
conduct violated another statute," even where the maximum
penalty under that other statute is more severe. Id., citing
Gallant, supra at 586. Although the maximum penalty for rape
exceeds that for indecent assault and battery, see G. L. c. 265,
§§ 13H, 22, "an argument premised on the unconstitutionality of
a statute for vagueness does not address the issue of differing
potential punishments. Unless prosecutorial abuse of discretion
in charging [a defendant] under the harsher statute is alleged
. . . we see no due process violation." Robinson, supra. See
Gallant, supra at 586 n.11.
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
battery 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 of penetration, and where the
defendant was on notice of the rulings in Gallant and Portonova,
supra, he had sufficient notice that his conduct constituted
14
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 defendant clear warning as to proscribed activities. See
Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 305 (1999)
("Given that the defendant's conduct fell squarely within the
statute, counsel lacked a cogent argument that the statute was
unconstitutionally vague as applied to the defendant").
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 G. L. c. 265, § 22. It
follows, therefore, that counsel was not ineffective. See
Saferian, 366 Mass. at 96. Accordingly, the judge correctly
denied the motion for new trial on this basis.6
6 The defendant cites to cases in other jurisdictions
holding that compelled self-penetration does not constitute
rape. See, e.g., State v. Bryant, 670 A.2d 776, 779 (R.I.
1996). That notwithstanding, we adhere to Massachusetts case
law interpreting the language of our rape statutes which, as
discussed, compels a different result.
15
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, 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 Judicial 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.
16
In the present case, by contrast, the evidence was
sufficient to support the crime as charged in the indictment.
The armed robbery indictment alleged, among other things, that
the defendant, "armed with a dangerous weapon, to wit: firearm
did assault [the victim] with intent to rob her, and thereby did
rob . . ." (emphasis supplied). The Commonwealth's evidence
amply demonstrated that the defendant was armed with a dangerous
weapon as that term has been defined in our case law. See
Commonwealth v. Powell, 433 Mass. 399, 402 (2001) (replica or
fake weapon is dangerous weapon "if the victim would, in all the
surrounding circumstances, reasonably believe that the object
was a real weapon").7 By drawing the indictment to allege the
crime of armed robbery "with a dangerous weapon," rather than
"with a handgun," the Commonwealth here avoided the concerns
delineated in Garrett, 473 Mass. at 268 (Gants, C.J.,
concurring) ("Had the Commonwealth drawn its indictment to
allege the crime of armed robbery with a dangerous weapon, the
defendant would properly have been found guilty of armed robbery
7 Consistent with the holding in Powell, supra at 404, the
judge in the present case instructed, in relevant part, "A
person who uses a toy gun or other fake weapon to commit a
robbery may be convicted of armed robbery if the victim
reasonably took it to be a real weapon capable of inflicting
bodily injury. The law of armed robbery does not require the
Commonwealth to show that the instrument was actually used. It
is sufficient if the Commonwealth proves beyond a reasonable
doubt that the defendant was actually armed with a dangerous
weapon."
17
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
gun, even though indictment specified that defendant was "armed
with a dangerous weapon, to wit, a knife"). The defendant's
argument ignores that he was convicted of the charges as
submitted to the jury. The jury instruction correctly specified
that the Commonwealth was required to prove that the defendant
8 Of course, a BB gun may qualify as a dangerous weapon in
its own right, without regard to its resemblance to some other
form of weapon. Compare Powell, supra at 404.
18
"was armed with a dangerous weapon," and did not specify that
the weapon must be a firearm.9 Thus, in the context of 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
unnecessary 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.
9 The defendant did not object to the judge's comprehensive
instructions regarding the dangerous weapon element of armed
robbery.
19