Com. v. Niels N.

• Decision Date: 23 February 2009
• Docket Number: No. 07-P-476.,07-P-476.
• Citation: 901 N.E.2d 166,73 Mass. App. Ct. 689
• Parties: COMMONWEALTH v. NIELS N., a juvenile.
• Court: Appeals Court of Massachusetts

901 N.E.2d 166

73 Mass. App. Ct. 689

COMMONWEALTH v. NIELS N., a juvenile.

No. 07-P-476.

Appeals Court of Massachusetts, Hampden.

Argued February 12, 2008.

Decided February 23, 2009.

Robert Herrick for the juvenile.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., PERRETTA, DREBEN, CYPHER, & Wolohojian, JJ.

WOLOHOJIAN, J.

After a jury trial on a delinquency complaint and two indictments charging the juvenile as a youthful offender, the juvenile was adjudicated a delinquent child. The juvenile was found guilty on an indictment charging assault with intent to rape a child under age sixteen in violation of G.L. c. 265, § 24B¹; on an indictment charging rape of a child with force, the juvenile was found guilty of the lesser included offense of assault and battery in violation of G.L. c. 265, § 13A. Lastly, the juvenile was found delinquent on a complaint charging indecent assault and battery on a child under age fourteen in violation of G.L. c. 265, § 13B.

On appeal, the juvenile claims that the adjudications were duplicative because (a) assault and battery was a lesser included offense of indecent assault and battery on a child, and (b) the acts underlying the charges of indecent assault and battery on a child and assault with intent to rape a child were so closely related in fact as to constitute a single crime.²,³ We agree that the adjudications are duplicative, and as a result set aside the assault and battery and indecent assault and battery adjudications. We affirm the juvenile's adjudication of delinquency by reason of assault with intent to rape a child under age sixteen.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On January 18, 2005, the juvenile, then age sixteen, sexually assaulted his seven year old half sister, Norma.⁴ Norma, who had gone to the juvenile's bedroom to look for her doll, was pushed by the juvenile so that her knees were on the floor and her face on the bed. He pulled down her pants as well as his own,⁵ and then climbed atop her and began "humping her" from behind. The juvenile's eleven year old stepbrother, Kevin, arrived by coincidence while the incident was occurring and saw—through a crack between the locked bedroom door and the jamb—Norma face down on the bed and the juvenile on top of her with his pants down.

Additional facts are set out in the sections of the discussion infra to which they pertain.

Discussion. 1. Duplicative convictions.⁶ The case rested on only three acts, all closely related in time, place, and intent. The Commonwealth presented no theory as to how these three acts related to the charged offenses, or to the elements of any of the crimes. Because of this, and the absence of a unanimity instruction,⁷ we do not and cannot know on which act or acts the jury predicated the convictions.

On appeal, the Commonwealth contends that the removal of Norma's pants constituted indecent assault and battery, pushing her onto the bed constituted a separate assault and battery, and getting on top of her supported the separate crime of assault with intent to rape. Neither this theory nor any other was advanced during the trial, either to the judge or to the jury. The prosecutor at no point articulated the Commonwealth's position as to which of the three acts (singly or in combination) satisfied which of the charges, the lesser included offenses that were also submitted to the jury for consideration,⁸ or the elements of either. In both its opening statement and its closing argument, the Commonwealth said merely that the case was not complicated and that the conduct consisted of: "[Norma] went down to the Defendant's room, he pushed her onto the bed, he pulled down his pants, he pulled down her pants and he got on top of her."

Nor did the jury receive guidance from any other source as to how they were to view the evidence in relation to the charges. The indictments and the delinquency complaint consisted only of a recitation of the elements of each applicable crime and the date on which the offense was charged to have occurred; they did not identify the Commonwealth's theory as to how the juvenile committed each crime. The jury instructions, too, were silent, containing no reference to any of the evidence in the case, or to how the evidence related to any of the offenses or their elements.

In short, the jury received no guidance—whether from the charges, the Commonwealth's case, or the trial judge—as to what conduct could form the predicate for which offense(s) and which offenses needed to be predicated on separate and distinct acts. Contrast Commonwealth v. King, 445 Mass. 217, 225-226, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006) (convictions of indecent assault and battery and rape were not duplicative where the judge instructed the jury that separate and distinct acts were needed and explained the Commonwealth's theory as to which acts constituted which offenses). In these circumstances, it is impossible to know which of the three acts, singly or in combination, was relied upon by the jury in finding the juvenile guilty of any of the charges.

a. Assault and battery and indecent assault and battery on a child. The juvenile argues that his adjudications of delinquency by reason of assault and battery and indecent assault and battery on a child are duplicative because assault and battery is a lesser included offense.

The juvenile was convicted of indecent assault and battery of a child under the age of fourteen, G.L. c. 265, § 13B, which, unlike simple assault and battery, does not require proof of lack of consent. See Commonwealth v. Farrell, 31 Mass.App. Ct. 267, 268, 576 N.E.2d 710 (1991) ("[b]y St.1986, c. 187, the Legislature amended § 13B to exclude lack of consent as an element of the crime of indecent assault and battery on a child under fourteen"). Therefore, under a proper jury charge, "a simple assault and battery ... is not a lesser included offense within the statutory offense of indecent assault and battery of a child." Id. at 268-269, 576 N.E.2d 710.

In the case at bar, however, the judge did not instruct the jury that lack of consent was required to prove assault and battery, even though such an instruction was required. See, e.g., Commonwealth v. Cohen, 55 Mass.App.Ct. 358, 359, 771 N.E.2d 176 (2002) (assault and battery requires proof of lack of consent where the touching is offensive). Moreover, the judge (in charging the elements of rape) instructed the jury, "[A]nd of course the law, for a child of seven years old, they're not old enough to give consent so consent is not a factor."⁹ As part of the instructions concerning indecent assault and battery on a child, the judge similarly (correctly) informed the jury: "Because of the age of the alleged victim you are not to consider, as I mentioned earlier, whether or not, in this case the alleged victim, she consented to any touching. If the victim is under fourteen years of age it is irrelevant whether or not she consented." In short, not only were the jury not instructed that proof of lack of consent was required in order to convict the juvenile of assault and battery on a theory of an offensive touching,¹⁰ the only information they received at all concerning consent was that it was irrelevant. In effect, then—through an erroneous jury charge that omitted the element of nonconsent — the assault and battery in this case became a lesser included offense of indecent assault and battery on a child under age fourteen.¹¹ "This instruction became the law of the case." Commonwealth v. Pinero, 49 Mass.App.Ct. 397, 399, 729 N.E.2d 679 (2000), and cases cited.

Because the assault and battery charge was submitted to the jury as a lesser included offense of indecent assault and battery on a child under fourteen, the jury should have been instructed that the offenses were required to rest on separate and distinct acts.¹² This is our well-established rule regarding lesser included offenses. See Commonwealth v. King, 445 Mass. at 225, 834 N.E.2d 1175 (convictions of the greater and lesser included offenses must "rest on separate and distinct acts"). See also Commonwealth v. Maldonado, 429 Mass. 502, 509, 709 N.E.2d 809 (1999) (jury properly instructed that the Commonwealth had the burden to prove that the acts constituting the lesser included offense of assault and battery by means of a dangerous weapon were separate and distinct from those constituting murder). Compare Commonwealth v. Moran, 439 Mass. 482, 489, 789 N.E.2d 121 (2003) (dismissing a lesser included offense where the judge failed to instruct that the convictions had to be predicated on separate and distinct acts). And the failure to provide such an instruction in this case resulted in a substantial risk of a miscarriage of justice such that the adjudication of delinquency by reason of assault and battery must be vacated. See, e.g., Commonwealth v. Juzba, 46 Mass.App.Ct. 319, 325 & n. 1, 705 N.E.2d 1148 (1999) (dismissing an indictment for a lesser included offense, noting that "we need not determine whether there was ... evidence which would support two distinct acts, since the judge did not instruct the jury that the conviction[s of indecent assault and battery and rape] must be based on separate acts"). See also Commonwealth v. Thomas, 400 Mass. 676, 681-682, 511 N.E.2d 1095 (1987) (vacating judgments on convictions of indecent assault and battery where the judge failed to instruct that the convictions needed to rest on facts separate from those constituting aggravated rape); Commonwealth v. Sanchez, 405 Mass. 369, 381-382, 540 N.E.2d 1316 (1989) (same with respect to convictions of indecent assault and battery and rape of a child); Commonwealth v. Howze, 58 Mass.App.Ct. 147, 151-152, 788 N.E.2d 586 (2003) (same with respect to convictions of indecent assault and...