Opinion
23-P-168
07-09-2024
COMMONWEALTH v. JOSE GOMEZ.
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).
Henry, D'Angelo & Hodgens, JJ.
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a Superior Court jury of raping two children (G. L. c. 265, § 23) and assaulting one of those children with an intent to rape (G. L. c. 265, § 24), the defendant, Jose Gomez, claims in this consolidated appeal that one of the rape convictions lacked sufficient evidence, and that the trial judge erred by failing to allow a motion for a new trial based upon ineffective assistance of counsel. We affirm.
Background. The evidence at trial showed that the defendant had a relationship with the mother of the victims, who are twin sisters, and moved into her home that she shared with four of her children. At the time the defendant moved in, the victims were approximately eight years old. While living in the home, the defendant sexually abused the first victim repeatedly and the second victim once.
The first victim recounted two incidents that occurred when she was six to eight years old. In the first incident, the defendant brought her into the kitchen, laid her on the floor, pulled down her pants, and licked her vagina and penetrated her vagina with his tongue. In the second incident, the defendant took her into a closet, laid her down, pulled down her pants, and repeatedly attempted to push his penis inside of her vagina.
The second victim testified to a single incident that occurred when she was eight or nine years old. The defendant brought her to his room and had her pull down her pants. "[H]e opened [her] vagina with his two hands." She further explained how he used his hand and fingers: "He put it on my vagina. He opened it with his two fingers."
The jury returned guilty verdicts on three indictments. As to the first victim, the jury found the defendant guilty of rape of a child (tongue) and assault with intent to rape. As to the second victim, the jury found the defendant guilty of rape of a child (fingers).
After obtaining new counsel, the defendant filed a motion for a new trial claiming that his lawyer provided ineffective assistance by failing to oppose joinder, failing to object to bad act evidence, and failing to properly impeach witnesses. The defendant did not include an affidavit from trial counsel. Without an evidentiary hearing, the trial judge denied the motion in a twenty four page decision that carefully and methodically addressed each of the claims. On appeal, the defendant asserts that the rape of a child conviction regarding the second victim lacked sufficient evidence of penetration, and he repeats the arguments raised in his motion for a new trial.
Discussion. 1. Sufficiency of evidence. When reviewing the sufficiency of evidence, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "To prove the crime of rape of a child in violation of G. L. c. 265, § 23, the Commonwealth must prove beyond a reasonable doubt that the defendant engaged in (1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age." Commonwealth v. Lawton, 82 Mass.App.Ct. 528, 533 (2012).
The defendant challenges evidence pertaining to sexual intercourse, specifically penetration. He contends that the second victim did not provide enough "descriptive testimony" to establish that the defendant did anything more than "spread and examine[] the vagina." We disagree. "[I]t is well settled that penetration, however slight, of a person's genital opening is sufficient" to constitute sexual intercourse. Commonwealth v. Todd, 87 Mass.App.Ct. 780, 783 (2015). Penetration is not limited to intrusion into the vagina and may be established by evidence that the defendant "touched or came into contact with the victim's vagina, vulva, or labia." Commonwealth v. Donlan, 436 Mass. 329, 336 (2002). Penetration may be achieved through a variety of means, "such as, in this case, a finger." Commonwealth v. Seesangrit, 99 Mass.App.Ct. 83, 87 (2021).
Here, the evidence was sufficient for the jury to conclude that the defendant penetrated the second victim's genital opening. The second victim testified that the defendant brought her to his room and had her pull down her pants. "[H]e opened [her] vagina with his two hands." She provided additional detail describing how his hand and fingers manipulated her genital opening: "He put it on my vagina. He opened it with his two fingers." Given this descriptive testimony, a rational jury could have found beyond a reasonable doubt that the defendant raped her with his fingers. See Latimore, 378 Mass. at 677. See also Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001) (defining sexual intercourse as "penetration of the victim, regardless of degree"); Commonwealth v. Baldwin, 24 Mass.App.Ct. 200, 204-205 (1987) overruled on other grounds, Commonwealth v. Pagan, 445 Mass. 161, 170 (2005) (sufficient evidence of rape where touching of the vulva or labia "may surely be inferred" from the victim's testimony that the defendant used his finger to spread vaseline around her vagina). Given the fruitless exercise of attempting to "delineate the full variety of coercive sexual intrusions" that may constitute rape, Commonwealth v. Gallant, 373 Mass. 577, 590 (1977), "courts should not create artificial limits on the meaning of unnatural sexual intercourse." Commonwealth v. Prado, 94 Mass.App.Ct. 253, 259 (2018).
2. Motion for a new trial. A motion for a new trial may be granted "at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "We examine the granting or denial of a motion for a new trial only to determine whether there has been a significant error of law or other abuse of discretion" (quotation and citation omitted). Commonwealth v. Lys, 481 Mass. 1, 4 (2018). "We accord special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Murray, 461 Mass. 10, 21 (2011).
The defendant based his motion on a claim of ineffective assistance of counsel. "[A] defendant is denied constitutionally effective assistance of counsel if the representation fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that the performance inadequacy 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We discern no error of law or abuse of discretion in the trial judge's denial of the defendant's motion.
The defendant first contends that counsel was ineffective because he did not oppose joinder of the cases involving two victims. The judge concluded that such a motion "would have been fruitless." We agree with the judge's conclusion. To prevail on such a motion, counsel would have had to demonstrate that the offenses were unrelated and that prejudice from joinder was so compelling that it precluded a fair trial. See Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). As the judge noted, the overwhelming factual similarities and common evidence and witnesses militated against separate trials: sexual abuse of twin sisters, in the same home, around the same time period, by a trusted figure who had a relationship with the mother of the children and who played a caretaking role. Neither distinct offenses on different dates nor fresh complaint witnesses for each victim rendered joinder improper. See Commonwealth v. Auguste, 414 Mass. 51, 60 (1992); Commonwealth v. Torres, 86 Mass.App.Ct. 272, 276 (2014). Counsel is not ineffective for not pursuing "a motion with a minimal chance of success." Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
Although counsel successfully prevented the Commonwealth from introducing evidence of another rape, the defendant next contends that counsel was ineffective because he failed to object to two additional uncharged incidents. The Commonwealth introduced evidence that the defendant touched the first victim while putting his hand inside her pants during a drive from school, and on a final encounter the defendant unsuccessfully attempted to remove her clothes. We agree with the judge's conclusion that this evidence was admissible as it was probative of the nature and evolution of the relationship and explained when the sex abuse came to an end. See Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006) ("uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim"). We also note that following the first victim's testimony about the incident in the car, the judge cautioned jurors about the limited use of this evidence, and the judge provided a limiting instruction about "other acts" in the charge to the jury. Because any objection to this evidence would have been unavailing, the absence of any objection does not constitute ineffective assistance of counsel. See Commonwealth v. Walker, 460 Mass. 590, 609 (2011).
The defendant's final contention is that counsel was ineffective because he failed in three instances to impeach the victims. Appellate courts "have applied a stringent standard of review to claims of ineffective assistance because of failure to impeach a witness. Failure to impeach a witness does not, standing alone, amount to ineffective assistance." Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). The judge found that each of the defendant's claims about trial counsel's failures to impeach witnesses lacked merit. We agree. Contrary to the defendant's claims, counsel did impeach the first victim with inconsistent statements and argued those inconsistencies to the jury; variations between the first victim's testimony and that of the first complaint witness were immaterial; and variations in the second victim's testimony about how she felt following the rape were not material and were fraught with evident strategic considerations. See Commonwealth v. Valentin, 470 Mass. 186, 190 (2014). The absence of any affidavit from trial counsel on this claim is particularly revealing, and the judge properly could "draw a negative inference from the defendant's failure to secure an affidavit." Commonwealth v. Martinez, 86 Mass.App.Ct. 545, 550 (2014).
Judgments affirmed.
Order denying motion for a new trial affirmed.