Opinion
19-P-1086
04-01-2020
COMMONWEALTH v. Jake LEPORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was tried before a jury on two indictments: one charging rape, in violation of G. L. c. 265, § 22 (b ), and one charging indecent assault and battery on a person fourteen years or older, in violation of G. L. c. 265, § 13H. With respect to the rape indictment, the jury found the defendant guilty of the lesser-included offense of indecent assault and battery; the jury also found the defendant guilty as charged on the indictment for indecent assault and battery. On appeal, the defendant contends that the evidence was insufficient to sustain the convictions and that the sentences on the two indecent assault and battery convictions were duplicative. We affirm.
1. Sufficiency of the evidence. We review the denial of a motion for a required finding of not guilty to determine "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, 319 (1979). "To make this determination, we look only to the evidence presented by the Commonwealth, and disregard any contrary evidence presented by the defendant." Commonwealth v. Platt, 440 Mass. 396, 400-401 (2003). "[Q]uestions of credibility belong properly to the finder of fact, ... and, in considering whether the evidence is sufficient to support a conviction, should be resolved in favor of the Commonwealth." Commonwealth v. Martin, 467 Mass. 291, 315 (2014).
Considering the evidence in the light most favorable to the Commonwealth, the jury could have found that while the defendant was visiting her house, the victim went to sleep in her son's bedroom, still wearing her work clothes. She was awakened from a deep sleep to find that her bra had been lifted over her breasts and her pants unbuttoned. Someone's hand was on her breast making circular motions, and the fingers of another hand were inside her vagina going up and down. At first she thought it was her husband, but then the person told her to take her "panties" off, which was not a term her husband would use. She turned around and saw the defendant in the bed behind her. She asked him "what the fuck did he think he was doing," and jumped out of bed. In addition to the victim's testimony about the incident, evidence of the defendant's saliva was found on her bra.
The evidence recited above permitted the jury to find that the defendant committed acts of indecent assault and battery of the victim by touching her breast with his hand and with his tongue or mouth, and by touching her vagina with his hand, without her consent. See Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991), quoting Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52, 59 (1982) ("the intentional, unjustified touching of private areas such as ‘the breasts, abdomen, buttocks, thighs, and pubic area of a female’ constitutes an indecent assault and battery").
2. Duplicative convictions. The case was submitted to the jury on the theory that the defendant raped the victim by digitally penetrating her vagina and indecently assaulted her by touching her breast with his hand or mouth. With respect to the rape charge, however, the jury found the defendant guilty of the lesser-included offense of indecent assault and battery. For the first time, on appeal, the defendant argues that the two convictions for indecent assault and battery constitute multiple punishments for the same offense, in violation of double jeopardy principles, because they were not separate and distinct acts. "In the circumstances, we review the claim only to determine if a substantial risk of a miscarriage of justice occurred." Commonwealth v. Mamay, 407 Mass. 412, 418 (1990).
Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law prohibit multiple punishments for the same offense. See Commonwealth v. Dykens, 473 Mass. 635, 638 (2016) ; Commonwealth v. Suero, 465 Mass. 215, 219 (2013). Convictions are duplicative where the acts underlying the offense are "part of a continuous stream of conduct occurring within a short time frame and governed by a single criminal design," Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003), overruled on other grounds by Commonwealth v. Kelly, 470 Mass. 682, 700-701 (2015), or where one act is "incidental and necessary" to the accomplishment of the other. Suero, supra at 221.
Normally, whether the defendant's acts are separate and distinct is a question of fact for the jury. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). See also Kelly, 470 Mass. at 699, quoting Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753-754 (2008) ("Convictions of two cognate offenses will be sustained ‘where the judge instructs the jury explicitly that they must find separate and distinct acts underlying the different charges’ "). Here, although the jury were never explicitly asked, it is evident that they based the convictions on two separate acts. These acts were sufficiently distinct to support two convictions. See Mamay, 407 Mass. at 418 (successive penetration of rectum and vagina in short timeframe sufficiently distinct acts to support two rape convictions). This is not a case where the first act was necessary to complete the second. Contrast Suero, 465 Mass. at 220-221 (touching victim to move aside her underwear necessary to complete act of rape).
Judgments affirmed.