Opinion
14-P-1646
10-08-2015
COMMONWEALTH v. MATTHEW B. NICHOLS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On March 18, 2009, the defendant was convicted by a Superior Court jury of one count of rape of a child and four counts of indecent assault and battery on a child under the age of fourteen. This court affirmed the judgments. Commonwealth v. Nichols, 78 Mass. App. Ct. 1114 (2010). On March 26, 2014, the defendant filed a motion for relief from unlawful restraint, which was denied by a motion judge on April 22, 2014. The defendant's motion for reconsideration of this motion was denied on May 7, 2014. It is from the order denying the motion for release from unlawful restraint that the defendant now appeals. We affirm.
Further appellate review was denied on March 31, 2011.
While the parties' submissions include excerpts and references to the transcript in this matter, the court did not receive the full trial transcript. Consequently, we have referred to the full transcript docketed in the previous appeal.
D iscussion. The defendant argues that his conviction of one of the counts of indecent assault and battery on a child under the age of fourteen (count six) could have been duplicative of his rape of a child conviction (count two) where the rape of a child conviction was predicated on digital penetration of the vagina and the indecent assault and battery conviction was predicated on a digital touching of the outside of the victim's vagina. The defendant contends that the trial judge erred in failing to give an instruction that each charged offense must be based on a separate and distinct act. The defendant neither requested a separate acts instruction at trial nor objected to the absence of such instruction after the jury were charged.
The defendant also raises the issue whether the "potential" similarity in the acts underlying the rape of a child count and the lesser included offense of indecent assault and battery predicated on touching the outside of the victim's vagina violates his right under the Fifth Amendment to the United States Constitution against double jeopardy. It is not clear from his brief whether the defendant intends this to be a separate basis for reversal. Absent more, the simple fact that a defendant is charged with both indecent assault and battery and rape of a child does not raise an issue for the court's consideration. See Commonwealth v. Suero, 465 Mass. 215, 221 (2013).
Similarly, the defendant contends that there was a risk of confusion based on the rape of a child instruction explaining that penetration into the vagina itself is not required and that any penetration of the female genital opening is sufficient to support the conviction. He contends that this instruction would have led jurors to convict him of both rape of a child and its lesser included offense of indecent assault and battery on a child under fourteen for the same conduct, in violation of his constitutional rights. However, the defendant asserts no legal error on the part of the trial judge in connection with the content of the instruction (and we are presented with no reason to review it here). We conclude that the sole issue before us for review is the absence of a separate acts instruction.
These may have been tactical decisions where the defendant's theory of the case was that the defendant had not committed any of the alleged acts, whether separately or at the same time, and that the Commonwealth had not satisfied its burden of proof beyond a reasonable doubt.
Where, as here, a defendant raises a claim of error that was not preserved at trial or addressed on direct appeal, we analyze the claim under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Randolph, 438 Mass. 290, 293-296 (2002). "This standard requires us to determine if we have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Kelly, 470 Mass. 682, 697 (2015) (quotation marks and citations omitted).
A separate acts instruction is appropriate in cases like this where a defendant is charged with both greater and lesser included offenses. See Commonwealth v. Gouse, 461 Mass. 787, 798 (2012); Commonwealth v. Suero, 465 Mass. 215, 219 (2013). The Supreme Judicial Court recently clarified that where a defendant is charged with both greater and lesser included offenses and "the judge does not clearly instruct the jury that they must find that the defendant committed separate and distinct criminal acts to convict on the different charges, the conviction of the lesser included offense must be vacated as duplicative, even in the absence of an objection, if there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts." Kelly, 470 Mass. at 700 (emphasis supplied).
In articulating this standard, the Supreme Judicial Court acknowledged that previous formulations of the standard in such cases, stating that convictions must be vacated as duplicative if there is any possibility that the jury may have based convictions of greater and lesser included offenses on the same act, may have been more favorable for criminal defendants who are challenging their convictions than the standard enunciated in Kelly, 470 Mass. at 697. Compare, e.g., Commonwealth v. Howze, 58 Mass. App. Ct. 147, 150 (2003) (any possibility). Nevertheless, the Kelly court majority concluded, "[a]lthough this inquiry is less generous to a defendant, it is more consistent with the substantial risk of a miscarriage of justice standard of review." Kelly, supra at 701. As the court explained in Randolph, "[e]rrors of this magnitude are extraordinary events and relief is seldom granted." 438 Mass. at 297.
After reviewing the "evidence and the case as a whole," Randolph, 438 Mass. at 297 (citation omitted), we are not persuaded that there is a significant possibility that the jury convicted the defendant of indecent assault and battery for touching the outside of the victim's vagina at the same bath time that his fingers penetrated her vagina, the conduct giving rise to his conviction of rape of a child.
The prosecution's theory of the case as framed in its opening statement, supported through trial testimony, and argued at closing -- that the defendant engaged in a repeated pattern of rubbing the victim's vagina while drying her off with a towel over a series of months when the defendant assumed bath-time responsibilities for the victim's mother who was working or at bingo -- all indicated that the rape charged at count two and the indecent assault and battery charged at count six were separate acts. The crux of the Commonwealth's case was that the defendant engaged in this post-bath vaginal touching on multiple occasions and that while his hands mostly stayed on the outside of the victim's vagina, sometimes (at least once) the defendant stuck his fingers inside the victim's vagina. See Commonwealth v. Mamay, 407 Mass. 412, 418-419 (1990) (no miscarriage of justice where, inter alia, "prosecutor consistently highlighted the different actions of the defendant").
The Commonwealth also devoted a portion of closing argument to a recitation of each of the charges and the conduct alleged to support it in a manner that separated the rape charge from the indecent assault and battery. The prosecutor first addressed the count challenged by defendant here, the indecent assault and battery charge based on rubbing the outside of the victim's vagina (count six). She then went through the predicate conduct for each of the three other unrelated counts of indecent assault and battery before turning her attention to the rape count based on digital penetration (count two). Therefore, in the context of the proceedings, the jurors would have understood that the Commonwealth was seeking one indecent assault and battery conviction for any of the multiple bath times where the defendant's fingers stayed on the outside of the victim's vagina and one rape of a child conviction for the one time (at least) that his fingers penetrated her vagina.
Any risk of duplicative convictions is further mitigated because the jury were not given the option of convicting the defendant of indecent assault and battery as a lesser included offense of rape of a child. See Kelly, 470 Mass. at 703-704 (finding convictions of assault and battery for purpose of intimidation and assault and battery not duplicative and no substantial risk of a miscarriage of justice occurred despite failure to instruct on separate and distinct acts where jury not given the option on verdict slip or in charge of convicting of assault and battery as a lesser included offense of assault and battery for purpose of intimidation). The judge charged the jury on the elements of rape of a child and then instructed the jurors to find the defendant not guilty if the Commonwealth had not proven each and every element beyond a reasonable doubt. See Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000).
The verdict slips reduced the possibility that the jury's convictions on count two and count six were based on the same act. The Commonwealth requested, and the trial judge allowed, the specific acts alleged to constitute each crime to be included on each verdict slip. The judge's charge explained this to the jury. See Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 273 (2013) (the absence of a "separate act" instruction did not create a substantial risk of a miscarriage of justice where verdict slip indicates that indecent assault and battery was premised on victim's testimony regarding a separate act in the course of the rape).
The defendant cites to cases reversing convictions of lesser included offenses where no separate acts charge was given. His cases are distinguishable where they involve multiple charges on cognate offenses arising from a single incident that unfolded over a short period of time as opposed to the charges against the defendant here, which were based on conduct that the jury likely believed occurred weekly, over a period of months. See, e.g., Suero, 465 Mass. at 221; Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003).
Here, the conduct happened over a series of months with each post-bath touching constituting a discrete act that is separate from any other post-bath touching. The evidence of repeated post-bath touching incidents -- some of which involved penetration and some of which did not -- makes it less likely that the defendant was exposed to duplicative convictions from charges based on acts that ought properly to have been considered part of the same offense. Based on the record as a whole and for the reasons set forth above, we are satisfied that the possibility of duplicative convictions highlighted by the defendant is not significant and that there was no substantial risk of a miscarriage of justice here. See Mamay, 407 Mass. at 418-419.
Order denying motion for relief from unlawful restraint affirmed.
By the Court (Katzmann, Vuono & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 8, 2015.