Commonwealth v. Prado

• Decision Date: 17 October 2018
• Docket Number: No. 17-P-900,17-P-900
• Citation: 113 N.E.3d 365
• Parties: COMMONWEALTH v. Reinaldo PRADO.
• Court: Appeals Court of Massachusetts

113 N.E.3d 365

COMMONWEALTH

v.Reinaldo PRADO.

No. 17-P-900

Appeals Court of Massachusetts, Middlesex..

Argued May 4, 2018

Decided October 17, 2018

Jeffrey G. Harris, Boston, for the defendant.

Emily K. Walsh, Assistant District Attorney, for the Commonwealth.

Present: Agnes, Neyman, & Sacks, JJ.

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.

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 WL 3375521 (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 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

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, 556 N.E.2d 392 (1990), and "are granted only in extraordinary circumstances," Commonwealth v. Comita, 441 Mass. 86, 93, 803 N.E.2d 700 (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, 653 N.E.2d 566 (1995).

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, 315 N.E.2d 878 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432, 50 N.E.3d 808 (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, 369 N.E.2d 707 (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, 982 N.E.2d 1166 (2013), quoting Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (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, 47 N.E.2d 260 (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 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, 369 N.E.2d 707, 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, 369 N.E.2d 707. 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, 369 N.E.2d 707. 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, 369 N.E.2d 707. Moreover, the court 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, 369 N.E.2d 707. 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, 589 N.E.2d 331 (1992) ; Commonwealth v. Guy, 24 Mass. App. Ct. 783, 786-787, 513 N.E.2d 701 (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, 369 N.E.2d 707. 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, 745 N.E.2d 961 (2001) ("Sexual intercourse is defined as penetration of the victim, regardless of degree"); Commonwealth v. Sherry, 386 Mass. 682, 687, 437 N.E.2d 224 (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 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...