Commonwealth v. Thompson, 21-P-375

CourtAppeals Court of Massachusetts
PartiesCOMMONWEALTH v. DAVID WAYNE THOMPSON.
Docket Number21-P-375
Decision Date16 September 2022

COMMONWEALTH
v.

DAVID WAYNE THOMPSON.

No. 21-P-375

Appeals Court of Massachusetts

September 16, 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

A jury found the defendant, David Wayne Thompson, guilty of one count of rape of a child aggravated by more than a five year age difference, G. L. c. 265, § 23A (a.), two counts of indecent assault and battery on a child, G. L. c. 265, § 13B, and one count of dissemination of matter harmful to a minor, G. L. c. 272, § 28. After trial, the Commonwealth conceded that the statute proscribing rape of a child aggravated by age difference was enacted after the crimes charged were committed, and so the trial judge allowed the Commonwealth's motion to reduce that conviction to that of rape of a child, G. L. c. 265, § 23. On appeal, the defendant argues that (1) because his conviction of the greater offense of rape of a child aggravated by age difference violated the ex post facto clause, it was improper for the trial judge to reduce his conviction to the lesser

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included offense of rape of a child, and (2) the motion judge erred in denying his motion for a new trial. We affirm.

Discussion.

1. Rape conviction.

The defendant argues that because the greater offense of rape of a child aggravated by more than a five year age difference did not exist at the time of the abuse, the trial judge's reliance on that greater offense to reduce his conviction to the lesser included offense of rape of a child violated the ex post facto and due process clauses of the United States Constitution, common law principles, and art. 12 of the Massachusetts Declaration of Rights. We disagree.

The indictments in this case arose from the defendant's sexual abuse of the victim on multiple occasions between July 6, 2006, and July 5, 2008. The statute criminalizing rape of a child aggravated by age difference became effective on October 22, 2008, after the time period in which the abuse occurred. See G. L. c. 265, § 23A (a), inserted by St. 2008, c. 205, § 2. The statute criminalizing rape of a child, however, was in effect during the time period of the abuse. See G. L. c. 265, § 23, as amended by St. 1974, c. 474, § 3.

Rape of a child aggravated by more than a five year age difference contains only one additional element than rape of a child: That element is the five year age difference. See Commonwealth v. Claudio, 484 Mass. 203, 204 n.2 (2020) (noting

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that statutory rape is lesser included offense of rape aggravated by age difference). By convicting the defendant of rape of a child aggravated by age difference, the jury found all of the elements required for the lesser included offense of rape of a child, plus an additional element. In other words, the defendant's conviction of rape of a child aggravated by age difference shows that the jury "necessarily concluded" that the Commonwealth also proved the elements for rape of a child. Commonwealth v. Trotto, 487 Mass. 708, 715 (2021).

The Supreme Judicial Court expressly approved of this procedure in Commonwealth v. Fredette, 480 Mass. 75, 87-88 (2018). In that case, the defendant's first-degree murder conviction could not stand because it was based on a predicate felony that did not exist at the time of the killing. Id. The Supreme Judicial Court stated that on remand, the judge "may order the entry of a finding of a lesser degree of guilt, i.e., murder in the second degree based on the predicate felony of kidnapping as it existed at the time...

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