Commonwealth v. Garcia
Commonwealth v. Garcia
Opinion of the Court
The defendant appeals from his convictions, after a jury trial, of one count of rape of a child with force, G. L. c. 265, § 22A ; five counts of aggravated rape of a child, G. L. c. 265, § 23A ; and three counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B.
1. Indecent assault and battery (buttocks). The defendant contends that, due both to insufficiency of the evidence and to prejudicial error in the jury instructions, his conviction of indecent assault and battery based on touching the victim's buttocks was duplicative of two of his aggravated rape convictions (digital-anal and penile-anal). We disagree.
As to sufficiency, the victim (who was eleven years old at the time of trial) testified that the defendant "would put his finger on my-on my bum." The prosecutor asked, "What would he do with his hands when he touched your bum? Can you describe that for us?" The victim responded by making a rubbing motion with her hands. The prosecutor then asked, "Was there anything else [emphasis supplied] that he did with your bum?" The victim responded by describing the defendant putting both his finger and his "front private" inside her "bum." "Viewing the evidence in the light most favorable to the Commonwealth," this was sufficient "[t]o support a conviction of indecent assault and battery ... [based on] separate and distinct acts from the acts constituting the crime of rape," or in this case, aggravated anal rapes. Commonwealth v. Juzba,
As to the jury instructions, the defendant's argument begins with the settled principles that indecent assault and battery on a child under fourteen is a lesser included offense of aggravated rape of a child under sixteen, see Commonwealth v. Suero,
Here, the judge instructed the jury that "he's been charged with ten separate and distinct offenses[,]" and "[y]ou must consider each of these offenses, each charge and the evidence pertaining to each offense separately." The judge gave similar instructions regarding separate consideration of the five aggravated rape charges and of the three indecent assault and battery charges.
2. Aggravated rape (digital-genital). The defendant argues that the Commonwealth failed to present sufficient evidence to support the conviction of aggravated rape alleging digital penetration of the victim's genital opening. We disagree.
"[E]vidence of penetration [is] necessary to prove the acts of rape charged ... in order to differentiate those acts from other prohibited sexual touchings ...." Commonwealth v. Nylander,
Viewed in the light most favorable to the Commonwealth, the victim's testimony that the defendant touched the "outside" of her "front private part," that he would "rub it," and that it was "painful," was sufficient for the jury to find that the defendant touched "the victim's vagina, vulva, or labia." Centeno,
3. Improper closing argument. The defendant argues that the Commonwealth's closing argument was improper in three respects. Because the defendant did not object at trial, we review for whether the argument created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas,
a. Improper vouching. We reject the defendant's claim that the prosecutor improperly vouched for the victim's credibility. "Improper vouching occurs if 'an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.' " Commonwealth v. Kee,
b. No reason to lie. We also reject the defendant's contention that certain of the prosecutor's statements amounted to a suggestion that the victim "had no reason to lie" and thus were improper under Commonwealth v. Beaudry,
What the defendant actually challenges here are not statements that the victim had no reason to lie, but two rhetorical questions by the prosecutor in response to the defendant's attacks on the victim's credibility. The first such question was: "Does [the victim] strike you as somebody that is particularly sophisticated to concoct an elaborate lie that lasts not just for a little while but years, years of that?" The second was: "[It's been] suggested by the defendant that this was concocted, this was made up. Why? Why? Would she make this up? Why would she fabricate this? Because mom wanted him out of the house?" As stated in Commonwealth v. Mitchell,
c. Burden-shifting. Finally, we disagree with the defendant that the prosecutor used rhetorical questions to shift the burden of proof onto the defendant. Although such a tactic would be improper, see Commonwealth v. Habarek,
Judgments affirmed.
At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty on one of two counts of breaking and entering in the nighttime with intent to commit a felony, G. L. c. 266, § 16. The jury returned a not guilty verdict on the remaining count.
Although these claims of error were unpreserved, "we will reverse a duplicative conviction" and "proceed to the merits" of the defendant's claims. Commonwealth v. Traylor,
Although Traylor involved multiple, potentially duplicative charges of the same offense, see ibid., rather than an offense and a lesser included offense, we accept for present purposes the parties' shared view that Traylor's principles govern.
The judge instructed that "for each of these separate charges of aggravated rape of a child, you have to look at each of them separately, each of the five counts separately." With respect to the three counts of indecent assault and battery, the judge instructed, "you have to focus on whether or not the prosecutor has proven the conduct as well as all the elements for indecent assault and battery," including "in one instance that the [defendant] put his hand or hands on her buttocks. In the second instance, that he put his finger or fingers on her genital opening. The third is that he put [the victim's] hand on his penis."
The defendant challenges the prosecutor's (1) references to the victim's "family secret" as a reason why the victim may not have divulged the sexual abuse over the years; and (2) argument that "you might want to cut [the victim] a little slack, maybe a little. She's trying to remember things that happened years ago, some pretty bad things. Some pretty bad things."
Beaudry does quote in dictum the statement in Commonwealth v. Riberio,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.