Commonwealth v. Miller, 20-P-533

• Court: Appeals Court of Massachusetts
• Decision Date: 22 February 2022
• Docket Number: 20-P-533
• Parties: COMMONWEALTH v. ANTHONY D. MILLER.

COMMONWEALTH
v.
ANTHONY D. MILLER.

No. 20-P-533

Appeals Court of Massachusetts

February 22, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant was convicted of aggravated rape, G. L. c. 265, § 22 (a.), and assault and battery by means of a dangerous weapon (ABDW), G. L. c. 2 65, § 15A (b)-^[1] The defendant argues on appeal that the two convictions are duplicative. We agree, and therefore vacate the defendant's ABDW conviction. We otherwise affirm.

Background.

This case was submitted to the jury on the theory that the defendant "strangled, beat[], and raped [the victim] during one continuous episode." The victim was sitting in the kitchen when the defendant first attacked her. The

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defendant strangled the victim, punched her with his fists, and struck her multiple times with an oxygen tank before dragging her upstairs and raping her. The Commonwealth charged one count of ABDW premised on the defendant's use of the oxygen tank to strike the victim. The Commonwealth, relying on the theory that the defendant's conduct constituted one continuous episode, also charged one count of aggravated rape with the aggravating element predicated on an ABDW.^[2] As noted, the jury found the defendant guilty of both counts.

Discussion.

For the first time on appeal, the defendant argues that the two convictions are duplicative, and thus in violation of double jeopardy principles, because the jury were not instructed that the convictions must be based on separate acts. We review to determine "whether there is any significant possibility that the jury may have based the convictions of the greater and lesser included offenses on the same act." Commonwealth v. Kelly, 470 Mass. 682, 701 (2015).

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"Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law prohibit the imposition of multiple punishments for the same offense." Commonwealth v. Dykens, 473 Mass. 635, 638 (2016). Convictions are duplicative "[w]here the elements of one offense are wholly a subset of those of another." Commonwealth v. Howze, 58 Mass.App.Ct. 147, 149 (2003). The crime of ABDW is an element of the crime of aggravated rape when it is the sole aggravating element alleged in the aggravated rape indictment. See Commonwealth v. Donovan, 58 Mass.App.Ct. 631, 632 n.1 (2003). The offense of ABDW becomes, in essence, a lesser included offense of the aggravated rape. Cf. Commonwealth v. Rasmusen, 444 Mass. 657, 666-667 (2005), quoting Commonwealth v. Gunter, 427 Mass. 259, 276 (1998) ("When a murder conviction is based on a felony-murder theory, the underlying felony, whatever it may be, is always a lesser included offense and the conviction for that felony, in addition to the conviction of murder, is duplicative"). Accordingly, "[i]n order to sustain both convictions, the acts used to support one conviction cannot be the same acts used to support the other." Commonwealth v. Berrios, 71 Mass.App.Ct. 750, 753 (2008).

The Commonwealth argues that the jury heard evidence of additional, uncharged conduct sufficient to serve as the predicate ABDW for the aggravated rape conviction. The

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Commonwealth's argument, that potentially duplicative convictions may stand where the record contains sufficient evidence, beyond the charged predicate, from which a jury could have found the aggravating element, misstates the standard of review. Commonwealth v. Gilbert, 94...