Commonwealth v. Garcia , 95 Mass. App. Ct. 1 ( 2019 )

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17-P-1299 Appeals Court
COMMONWEALTH vs. CIRILO GARCIA.
No. 17-P-1299.
Bristol. December 10, 2018. - March 1, 2019.
Present: Green, C.J., Wolohojian, & Wendlandt, JJ.
Rape. Incest. Unnatural Sexual Intercourse. Obscenity,
Dissemination of matter harmful to minor. Witness,
Intimidation. Practice, Criminal, Indictment, Instructions
to jury. Constitutional Law, Indictment.
Indictments found and returned in the Superior Court
Department on August 16, 2012.
The case was tried before Frances A. McIntyre, J.
Michael J. Hickson for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
GREEN, C.J. After a jury trial, the defendant, Cirilo
Garcia, was convicted of dissemination of matter harmful to a
minor, G. L. c. 272, § 28; rape of a child aggravated by age
2
difference, G. L. c. 265, § 23A (a);1 incest, G. L. c. 272, § 17;
and witness intimidation, G. L. c. 268, § 13B, all arising from
a series of assaults against his biological daughter when she
was between the ages of seven and eleven.2 On appeal he contends
that (1) the conviction of dissemination of matter harmful to a
minor must be vacated, because of a statutory exception
applicable to parents and legal guardians, (2) his conviction on
one indictment for rape must be vacated, because the indictment
was improperly amended at trial, (3) the conviction of incest
must be vacated because the jury instructions prejudicially
enlarged the indictment for that charge, and (4) the evidence of
witness intimidation was insufficient to support his conviction,
because the threats supporting the conviction occurred before
any criminal investigation began. We discern no merit in the
defendant's challenges to his convictions of incest and witness
intimidation, but we conclude that we are constrained to reverse
the challenged counts of rape and dissemination of matter
harmful to a minor.
Background. The defendant is the victim's father. The
defendant moved to the United States from Guatemala around the
1 The defendant was convicted on two indictments charging
this offense. He challenges only the first on appeal.
2 The defendant was also convicted of rape of a child using
force, G. L. c. 265, § 22A, but he does not challenge this
conviction on appeal.
3
time of the victim's birth in 2000. His wife, the victim's
mother, followed him to the United States in 2003, leaving their
two children with their maternal grandmother in Guatemala. In
2006, when the victim was five or six years old, she moved to
New Bedford to live with her parents and siblings3 and met the
defendant for the first time. The defendant and his wife worked
different shifts, such that the defendant was home alone with
the children in the morning and sent them off to school.
However, the victim missed "a lot" of school because her father
kept her home. When the victim was seven years old, the
defendant began raping her.
In all, from the time the victim was seven until she was
eleven, the defendant raped her forty or more times. As the
defendant raped the victim, he would talk about the victim's
aunt's recent marriage and sex life despite the victim's
protests that she was "too little to hear about it." The
defendant also showed the victim naked men "putting their
private stuff on each other" on the Playboy television channel
as he raped her. The defendant threatened to kill the victim,
her mother, and her family if she ever told anyone about the
abuse. He told the victim that even if he went to jail and got
deported he would pay someone to kill her and her family.
3 Two more children had been born in the United States.
4
On July 8, 2012, the defendant raped the victim vaginally,
orally, and anally. This was the last time the defendant raped
her; she disclosed the abuse to her mother on that date. She
disclosed the abuse because her parents were fighting, the
children had to intervene, and the victim thought her "dad was
actually going to kill" her mother. The victim went into her
mother's bedroom, locked the door, and hid in the closet with
her mother as she described the abuse. After the disclosure,
the victim spoke to the police and went to the hospital. A
nurse there took vaginal and anal-rectal swabs. The
defendant's deoxyribonucleic acid (DNA) matched the major
profile of the sperm found on both swabs. A supervisor in the
State police forensics laboratory testified that the defendant's
DNA profile is "very rare."4
Discussion. 1. Dissemination of matter harmful to a
minor. The defendant contends, and the Commonwealth concedes,
that his conviction of dissemination of matter harmful to a
minor cannot stand because the statute provides a defense where
"the defendant was in a parental or guardianship relationship
4 The witness explained, "[T]he probability of a randomly
selected, unrelated individual having this DNA profile matching
that major male profile in both items is approximately 1 in
26.59 quintillion of the Caucasian population, 1 in 1.036
sextillion of the African-American population, 1 in 1.981
quintillion of the Hispanic population, and 1 in 6.341
quintillion of the Asian population."
5
with the minor." G. L. c. 272, § 28. See Commonwealth v.
Poitras, 55 Mass. App. Ct. 691, 692 n.1 (2002). Our independent
review of the record, see Commonwealth v. McClary, 33 Mass. App.
Ct. 678, 686 n.6 (1992), cert. denied, 510 U.S. 975 (1993),
demonstrates that the defendant was in a parental relationship
with the victim,5 and he is entitled to the parental defense
provided by the statute. Accordingly, his conviction of
dissemination of matter harmful to a minor under G. L. c. 272,
§ 28, must be reversed.
2. Rape of a child aggravated by age difference. The
defendant contends that his conviction of rape of a child
aggravated by age difference on indictment no. 2012-742-1
(indictment no. 1) must be reversed because the Commonwealth's
proof, the judge's instructions, and the verdict slip
constructively amended the indictment. The defendant argues
that the judge's instructions "enlarge[d]" the indictment,
"replaced" its allegation, and "impermissibly permit[ted] a
material change" in the grand jury's work, thereby violating his
due process rights by "adding an additional ground of criminal
liability for which the defendant could be found guilty."
5 The victim's original birth certificate was admitted into
evidence; it identified the defendant as her father. Moreover,
the victim and the defendant lived together, and the defendant
was home in the mornings with the victim and her siblings as the
children prepared for school.
6
Crimes must be "proved as charged," so as to "protect[] the
grand jury's role in the criminal process and ensure[] that the
defendant has proper notice of the charges against him."
Commonwealth v. Hobbs, 385 Mass. 863, 869 (1982). See art. 12
of the Massachusetts Declaration of Rights. "A constructive
amendment to an indictment occurs when either the government
(usually during its presentation of evidence and/or its
argument), the court (usually through its instructions to the
jury), or both, broadens the possible bases for conviction
beyond those presented by the grand jury" (citation omitted).
Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 691-692 (2000).
"[A]n amendment may not broaden the charges against a
defendant." Commonwealth v. Ruidiaz, 65 Mass. App. Ct. 462, 464
(2006). Indictments may be amended as to form but not as to
substance. See Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979).
An amendment is substantive where "an acquittal on the original
charge would not bar prosecution on the amended charge." Bynoe,
49 Mass. App. Ct. at 691.
Here, indictment no. 1 charged the defendant with rape of a
child aggravated by age difference under G. L. c. 265, § 23A
(a).6 The text of the indictment alleged that the defendant "did
General Laws c. 265, § 23A, provides for punishment for
6
"[w]hoever unlawfully has sexual intercourse or unnatural sexual
intercourse, and abuses a child under 16 years of age and: (a)
there exists more than a 5 year age difference between the
7
have sexual intercourse" with the victim, a "child under sixteen
years of age when there existed more than a five-year age
difference" between them. At the commencement of trial, the
Commonwealth made clear that it intended to rely at trial on the
oral or anal rape of the victim, and the Commonwealth
consistently did so during the course of the trial. Consistent
with that approach, the judge's instructions and the verdict
slip for that indictment referenced "unnatural" or "oral" sexual
intercourse.
"Sexual intercourse," as used in the statute, means "the
traditional common law notion of rape, the penetration of the
female sex organ by the male sex organ, with or without
emission." Commonwealth v. Gallant, 373 Mass. 577, 584 (1977).
"Similarly, 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.7 General Laws c. 265, § 23A (a),
defendant and the victim and the victim is under 12 years of
age" (emphasis added).
7 The Commonwealth's argument on this point, relying on
Commonwealth v. Smith, 431 Mass. 417 (2000), is misplaced.
Although the Supreme Judicial Court in that case noted that rape
as defined in G. L. c. 265, §§ 22-23, included both natural and
unnatural sexual intercourse after legislative amendments sought
to redefine and modernize the statutes, the court was silent as
to whether an indictment in which the Commonwealth elected to
8
clearly prohibits both sexual intercourse (natural) and
unnatural sexual intercourse with children.8 However, the
Commonwealth chose to charge the defendant, in indictment no. 1,
with the former, and the indictment made no mention of the
latter.9 At trial, the evidence, the jury instructions, and the
verdict slip on that indictment all concerned the alleged oral
rape of the victim, an act of unnatural sexual intercourse.
"Although the trial court did not permit a formal amendment
of the indictment, the effect of what it did was the same."
Stirone v. United States, 361 U.S. 212, 217 (1960). This
charge solely "sexual intercourse" would encompass the statute's
disjunctively described category of unnatural sexual
intercourse. Because we interpret statutes by giving
independent meaning to each phrase, the Commonwealth's argument
is incorrect. See Gallant, 373 Mass. at 585, quoting
Commonwealth v. Brooks, 366 Mass. 423, 428 (1974) ("Every phrase
of a statute should be given some effect").
8 We recognize that the language appearing in the statute
dates to an earlier time. We do not intend by our reference to
the term, consistent with the statutory language, to adopt or
endorse any pejorative connotation that may flow from the
designation of such conduct as "unnatural" (even when engaged in
by consenting adults), and we invite the Legislature to update
the statutory language.
9 We note that had the Commonwealth charged the defendant
with "sexual intercourse and unnatural sexual intercourse" in
the indictment, it could have proceeded under either theory at
trial. See Commonwealth v. Murphy, 415 Mass. 161, 164 (1993)
("Where a crime can be committed in any one of several ways, an
indictment properly charges its commission in all those ways,
using the conjunction 'and' in joining them" [citation
omitted]).
9
constructive amendment was one of substance.10 Accordingly, the
defendant's conviction of rape of a child aggravated by age
difference on indictment no. 1 must be reversed. See
Commonwealth v. Mayotte, 475 Mass. 254, 265-266 (2016) (vacating
conviction where indictment charged one statutory theory of
crime while testimony and jury instructions expanded indictment
by introducing different theory); Commonwealth v. Barbosa, 421
Mass. 547, 554 (1995) ("Where there is a substantial risk that
the defendant was convicted of a crime for which he was not
indicted by a grand jury, we cannot apply a harmless error
standard. . . . Instead, we must reverse the convictions").
3. Incest. The defendant similarly contends that his
conviction of incest must be reversed based on the trial judge's
instructions allegedly enlarging the indictment. The indictment
charged the defendant with "[i]ncest" and alleged that the
defendant, "being father of" the victim, had "carnal knowledge
of the body" of the victim. The "carnal knowledge" language
from the indictment directly tracks the statutory form language
set out in G. L. c. 277, § 79.11 See Commonwealth v. Canty, 466
10The defendant acknowledged at oral argument that double
jeopardy would not bar new charges based specifically on the
oral rape. See Bynoe, 49 Mass. App. Ct. at 691.
11"Incest. (Under Chap. 272, Sec. 17.) -- That A.B., being
the father of C.D. . . ., did have carnal knowledge of the body
of said C.D." G. L. c. 277, § 79.
10
Mass. 535, 547-548 (2013) ("Indeed, the various statutory forms
of indictment in G. L. c. 277, § 79, do not set forth all of the
required elements for many crimes, such as larceny, but these
forms contain sufficient descriptions of the crimes listed
therein" [quotation omitted]); Commonwealth v. Lopes, 455 Mass.
147, 168-169 (2009) (finding "no merit" to defendant's claim
that trial judge erred by permitting Commonwealth to seek
conviction on joint venture theory that did not appear on face
of indictment and was not presented to grand jury, where
indictment for murder tracked statutory form and, further,
defense counsel was aware of testimony before grand jury that
provided evidence supporting joint venture theory).
General Laws c. 272, § 17, punishes "[p]ersons within
degrees of consanguinity within which marriages are prohibited
or declared by law to be incestuous and void, who . . . have
sexual intercourse with each other, or who engage in sexual
activities with each other, including but not limited to, oral
or anal intercourse, [or] fellatio . . . ."12 The trial judge's
12The defendant erroneously contends that "carnal
knowledge" "for purposes of the Commonwealth's incest statute
exclusively means 'sexual intercourse' which is the insertion of
the male penis into a female's vagina." The cases the defendant
cites for this argument either predate the 2002 amendment to the
incest statute, which broadened the sexual conduct prohibited to
include unnatural sexual intercourse, G. L. c. 272, § 17, as
amended through St. 2002, c. 13, or do not support the
defendant's desired understanding of carnal knowledge and sexual
intercourse.
11
instructions regarding this indictment quoted the statute and
defined "sexual intercourse" for purposes of the incest statute
as "natural or unnatural." The indictment sufficiently alleged
incest by following the statutory form; the incest statute
prohibits natural and unnatural sexual intercourse between
people within specified degrees of consanguinity, and the trial
judge's instructions therefore did not vary from, constructively
amend, or enlarge the indictment. See Canty, 466 Mass. at 547-
548; Lopes, 455 Mass. at 168-169.13 Accordingly, we discern no
error in the defendant's conviction of incest.
4. Witness intimidation. The defendant contends that the
trial judge should have allowed his motion for a required
finding of not guilty on the indictment for witness
intimidation, because the intimidation occurred before "any
stage of a criminal investigation." G. L. c. 268, § 13B (1) (c)
(i), as appearing in St. 2006, c. 48, § 3.14 However, the
evidence was sufficient to support the defendant's conviction on
this charge. We consider "the evidence in the light most
favorable" to the Commonwealth and determine whether "any
rational trier of fact could have found the essential elements
13Moreover, the defendant cannot show the prejudice
required by G. L. c. 277, § 35. The defendant clearly had
notice of the crime with which he was being charged.
14The defendant does not challenge the sufficiency of the
evidence for any of the other elements of witness intimidation.
12
of the crime beyond a reasonable doubt." Commonwealth v. Bin,
480 Mass. 665, 674 (2018), quoting Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979).
Under this familiar standard, there was sufficient evidence
that the defendant's witness intimidation occurred during a
stage of a criminal investigation. "[T]o convict a defendant of
witness intimidation . . . the Commonwealth must prove that
. . . a possible criminal violation occurred that would trigger
a criminal investigation or proceeding . . . ." Commonwealth v.
Fragata, 480 Mass. 121, 122 (2018). "[T]he statute's reference
to a 'potential witness at any stage of a criminal
investigation' indicates that the investigation need not have
already begun when the intimidation occurred." Id. at 125.
Therefore, a "potential witness at any stage of a criminal
investigation" encompasses those "who are likely to participate
in a future investigation that has not yet begun." Id. at 126.
The evidence introduced at trial demonstrated that the
defendant had raped the victim, his minor daughter, forty or
more times over a period of four years. Even from the first
time the defendant raped the victim, when she was seven years
old, he told her that if she disclosed the abuse, he would "kill
me or mom and everyone, my family." The last time the defendant
raped the victim -- vaginally, orally, and anally -- he said he
would kill her if she told anyone; if he went to jail, he would
13
get deported and "send people to kill [the victim and her
family]. He's going to pay someone." When the victim disclosed
the abuse to her mother, the victim went into her mother's
bedroom, locked the door, and insisted on hiding in the closet.
A rational jury could have found that the defendant's conduct of
raping his daughter was more than the "possible criminal
violation" Fragata requires the Commonwealth to demonstrate, and
that the victim was clearly a "potential witness" who was
"likely to participate in a future investigation." Fragata, 480
Mass. at 122, 125-126. Accordingly, there was sufficient
evidence to convict the defendant of witness intimidation under
G. L. c. 268, § 13B.
Conclusion. On the indictment charging dissemination of
matter harmful to a minor, and indictment no. 2012-742-1,
charging rape of a child aggravated by age difference, the
judgments are reversed, the verdicts are set aside, and
judgments shall enter for the defendant. The remaining
judgments are affirmed.15
15There is no need for resentencing, because the
defendant's sentences on both convictions reversed by this
opinion were concurrent with his sentences on the surviving
convictions. The defendant was sentenced to twenty to thirty
years for each of the two aggravated rape convictions and the
conviction of rape of a child using force, to be served
concurrently. On the incest conviction, the defendant was
sentenced to six to nine years from and after the concurrent
rape sentences. Lastly, on the convictions of dissemination of
14
So ordered.
matter harmful to a minor and witness intimidation, the
defendant was placed on ten years' concurrent probation.