Opinion
10-P-369
01-03-2012
COMMONWEALTH v. ALEX MURILLO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 28, 2009, a Superior Court jury found the defendant guilty of rape of a child by force, assault with intent to rape a child, and indecent assault and battery on a person over fourteen years of age. The offenses involved two sisters, Linda, who was ten years old, and Jane, approximately fourteen years of age, at the time of the initial assaults. On appeal, the defendant claims that the Commonwealth introduced insufficient evidence that he raped the ten year old child. The defendant also argues that there was prejudicial joinder of the offenses, requiring a new trial.
The jury found the defendant not guilty on charges of rape of a child, indecent assault and battery upon a child under fourteen years of age, and indecent assault and battery on a person over fourteen years of age.
The girls' names are pseudonyms.
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Background. Linda and Jane lived with their mother and uncle in an apartment in a multifamily building in Holliston. The defendant and his family lived in another apartment in the apartment building. The two families were friendly with each other.
One time when Linda was ten years old and her mother was not there, she was in the backyard playing with some other children. The defendant called Linda to his apartment to help him look for something. Once Linda was in the apartment, he led her into a bedroom and started taking her clothes off. The defendant then placed her on the bed, placed a pillow on her stomach and pulled her pants and underpants down to her ankles. Linda could not see him because of the pillow but she felt 'something wet, like a tongue' licking her vagina. The defendant licked the top of her vagina. The children outside began calling her name; Linda told the defendant she had to go and left the room.
During the summer following her eighth grade year, Jane was at a barbeque with her family and the defendant. Jane went into her apartment and was followed by the defendant, who proceeded to sexually assault her. When Jane was fourteen years old, the defendant again sexually assaulted her.
1. Insufficient evidence issue. As to Linda, the defendant claims that his conviction of rape must be reversed because there was insufficient evidence to prove that his tongue penetrated Linda's genital opening when he 'licked' her vagina.
In Commonwealth v. Edward, 34 Mass. App. Ct. 521, 523 (1993), we held that the judge correctly instructed the jury that they could find the defendant committed rape if they determined there was evidence that the defendant's lips came in 'contact' with the young woman's 'vagina, vulva, or labia.' See also Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 204-205 (1987). Therefore, viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we reject the defendant's claim.
2. Improper joinder of offenses. The defendant claims that there was improper joinder of the offenses charging him with sexual misconduct against both girls and that he was prejudiced by the alleged improper joinder. No motion to sever was filed at trial, but the defendant claims that the judge should have, sua sponte, severed the offenses. In view of the jury returning verdicts of not guilty on several serious charges, the defendant clearly was not prejudiced by the joinder.
Substantially for the reasons stated in the Commonwealth's brief, at pages 24 through 33, we reject the defendant's claim.
Judgments affirmed.
By the Court (Grasso, Smith & Meade, JJ.),