Commonwealth v. Suero

• Decision Date: 17 May 2013
• Docket Number: SJC–11185.
• Citation: 987 N.E.2d 1199,465 Mass. 215
• Parties: COMMONWEALTH v. Maximo SUERO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 215

987 N.E.2d 1199

COMMONWEALTH

v.Maximo SUERO.

SJC–11185.

Supreme Judicial Court of Massachusetts,

Essex.

Decided Jan. 10, 2013.

Argued May 17, 2013.

Emily Cardy, Committee for Public Counsel Services, for the defendant.

Ronald DeRosa, Assistant District Attorney (Michael Patten, Assistant District Attorney, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

IRELAND, C.J.

We granted the defendant's application for further appellate review limited to whether the defendant's conviction of indecent assault and battery on a child under the age of fourteen years, in violation of G.L. c. 265, § 13B, was duplicative of his conviction of rape of a child under the age of sixteen years, in violation of G.L. c. 265, § 23 (statutory rape).¹ In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court concluded that the charges were not duplicative, and affirmed the convictions. Commonwealth v. Suero, 81 Mass.App.Ct. 1108, 2012 WL 88975 (2012). Because we conclude that a judge must determine whether a defendant's conduct constitutes separate acts that are sufficiently distinct to support convictions of indecent assault and battery on a child under fourteen and statutory rape, and that here, the defendant's actions underlying the two convictions were not separate and distinct, we vacate the defendant's conviction of indecent assault and battery on a child under fourteen and affirm his conviction of rape of a child under sixteen.

Background facts. We present the essential facts the jury could have found. In 2005, the defendant moved in with his girl friend and her four children, two boys and two girls. The victim, who was nine years old, shared a bed with her sister in one bedroom. The two boys also shared a bedroom down the hall from the girls' bedroom.

On December 28, 2005, the victim watched television until 8 p.m., her usual bedtime. The defendant had just returned home. The victim, wearing shorts and a tank top, joined her sister, who was already in bed.

While she slept, the victim felt someone hit her face and move her over to the edge of the bed. Although the bedroom light was off, the light coming from the kitchen and through the window illuminated her room so that she could see the defendant kneeling next to her side of the bed. When the defendant asked her to move over closer to him, the victim recognized his voice. Once she had moved closer to the edge of the bed, the defendant pulled her underwear and shorts to the side. He then put his mouth in her “private” and moved it around. She told him to stop, but he did not. After “back[ing] away a little,” the defendant “slip[ped his fingers] closer to [her] private,” “opened [it] with his fingers” and started to “lick [it].” The victim told him to go to his room. He stated, “Just wait,” and left the girls' room.

The victim got out of bed and was making her way down the hall to her brothers' room when she saw the defendant in the bathroom. As she passed by, the defendant told her not to tell her family because they would “put [him] in jail” or “kill [him].” He also stated that he had two daughters of his own and that he would “never do that to them.”

The victim continued down the hall to her brothers' room, then went with one of her brothers to the living room, where they began watching a movie to “get [her] mom's attention.” The mother, who was awakened by the defendant's coming to bed, saw the lights on in the dining room through the bottom on the door and got up to shut them off. When she saw the children in the living room, the victim told her something “really, really serious” had happened. After being told what had occurred, the mother dialed 911. The victim was taken to a hospital for examination.

On February 22, 2006, an Essex County grand jury returned indictments charging the defendant with rape of a child with force, G.L. c. 265, § 22A, and indecent assault and battery on a child under the age of fourteen, G.L. c. 265, § 13B. The Commonwealth amended the two indictments to include the specific acts related to the charges. For the indictment alleging a violation of G.L. c. 265, § 22A, the charges stated, “hav[ing] sexual intercourseand/or unnatural intercourse with ... a child under sixteen years of age, ... to wit: by means of oral penetration or digital penetration.” For the indictment alleging a violation of G.L. c. 265, § 13B, the charges stated, “commit[ting] an indecent assault and battery on ... a child under fourteen years, to wit: by moving the child's shorts and underwear to the side.” ² Prior to trial, the Commonwealth amended the indictment charging rape of a child with force to statutory rape. See note 1, supra.

The defendant moved for required findings of not guilty at the close of the Commonwealth's case and the close of all evidence, and for a judgment notwithstanding the verdict after the jury's verdicts, arguing that his conduct was not separate and distinct because the moving of the clothing was necessary to the rape. Citing to the facts, the Superior Court judge denied the defendant's motions.

The judge instructed the jury: “The alleged proof of [indictments] 1 and 2 must be based on proof of wholly separate acts. Stated another way, [indictments] 1 and 2 cannot be proven by a single act.” He also instructed that the jurors “must be unanimous as to which specific act constitutes the offense charged.” After the jury found the defendant guilty of both charges, the judge sentenced the defendant to from four to five years in State prison for the rape conviction, to be followed by ten years' probation for the indecent assault and battery conviction.

Discussion. The Commonwealth argues that the defendant's convictions should be upheld because the evidence supported convictions of both crimes, and the jury, after being properly instructed that each crime “must be based on proof of wholly separate acts,” ³ found the defendant guilty.

The defendant asserts, as he did below, that his conviction of indecent assault and battery on a child under the age of fourteen should be vacated because it is duplicative of his conviction for rape of a child under sixteen and violates his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He argues that his actions were “so closely related in fact as to constitute in substance but a single crime.” Commonwealth v. St. Pierre, 377 Mass. 650, 662–663, 387 N.E.2d 1135 (1979). He also argues that, contrary to the Appeals Court's ruling, this case is more analogous to Commonwealth v. Howze, 58 Mass.App.Ct. 147, 153, 788 N.E.2d 586 (2003) (charge of indecent assault and battery vacated because removal of victim's clothing was “sufficiently bound up with and necessary to” rape), than to Commonwealth v. Maldonado, 429 Mass. 502, 509–510, 709 N.E.2d 809 (1999) (convictions of assault and battery by means of dangerous weapon and murder upheld where defendant shot two victims, then made sure the victims were dead by shooting each a second time). We conclude that, in these circumstances, the charges of assault and battery on a child under fourteen, and rape of a child under sixteen are duplicative. See Commonwealth v. Mamay, 407 Mass. 412, 418, 553 N.E.2d 945 (1990), quoting Commonwealth v. Thomas, 401 Mass. 109, 120, 514 N.E.2d 1309 (1987) (noting distinction between situations where indecent assault and battery and rape constitute one crime and situations where offenses were “separate and incidental”).

“Under our long-standing rule derived from Morey v. Commonwealth, 108 Mass. 433, 434 (1871), a lesser included offense is one whose elements are a subset of the elements of the charged offense.” Commonwealth v. Porro, 458 Mass. 526, 531, 939 N.E.2d 1157 (2010). “[W]hether two offenses are ‘so closely related in fact as to constitute in substance but a single crime,’ ... becomes pertinent in a single criminal proceeding where one crime is a lesser included offense of the other.” See Commonwealth v. Vick, 454 Mass. 418, 435, 910 N.E.2d 339 (2009), quoting Commonwealth v. St. Pierre, supra at 662–663, 387 N.E.2d 1135. Because the Fifth Amendment guarantees that “no person may be twice placed in jeopardy for the same criminal offense,” Cruz v. Commonwealth, 461 Mass. 664, 670, 963 N.E.2d 1172 (2012), “[c]onvictions of both greater and lesser included acts are permitted only where they ‘rest on separate and distinct acts.’ ” Commonwealth v. Gouse, 461 Mass. 787, 798, 965 N.E.2d 774 (2012), quoting Commonwealth v. Jackson, 80 Mass.App.Ct. 528, 529, 953 N.E.2d 1285 (2011).

We conclude, and the parties do not contest, that where a child is under the age of fourteen, the crime of indecent assault and battery on a child under fourteen, in violation of G.L. c. 265, § 13B, is a lesser included offense of the crime of rape of a child under sixteen, in violation of G.L. c. 265, § 23.⁴ See Commonwealth v. Howze, supra at 150, 788 N.E.2d 586 (“[I]ndecent assault and battery of a child and statutory rape [ ] are cognate offenses; specifically, indecent assault and battery is a lesser included offense of statutory rape, at least as G.L. c. 265, § 13B, is codified since its amendment by St. 1986, c. 187”).⁵ The parties disagree whether the defendant's actions were sufficiently separate and distinct to comprise more than one criminal act.

We conclude that, in the circumstances here, convictions of the greater offense of statutory rape, and the lesser included offense of indecent assault and battery, were not based on separate and distinct acts. See Commonwealth v. King, 445 Mass. 217, 225, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006), and cases cited; Commonwealth v. Howze, supra at 153, 788 N.E.2d 586 (where criminal act of indecent assault and battery necessary to act of rape, “due process forbids...