Opinion
No. 16–P–267.
11-18-2016
COMMONWEALTH v. James RANDALL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty in 1995 to charges of rape and abuse of a child under the age of sixteen, G.L. c. 265, § 23, and indecent assault and battery on a person aged fourteen or older, G.L. c. 265, § 13H. He now appeals from the denial of his motion to strike the indecent assault and battery conviction as duplicative of the rape conviction. We affirm.
The defendant contends that the facts recited by the prosecutor during the plea proceeding did not establish that he had committed distinct criminal acts, but rather showed a "single stream of conduct" with no distinct touching to support the indecent assault and battery charge. He therefore contends the convictions are duplicative. This argument is defeated by Commonwealth v. Vick, 454 Mass. 418, 430–436 (2009), in which the Supreme Judicial Court held that charges are not duplicative, even if based on the same act, if each charge has at least one element the other does not. Where, as here, "neither crime is a lesser included offense of the other, multiple punishments are permitted even where the offenses arise from the very same criminal event." Id. at 436.
Indecent assault and battery on a person aged fourteen or older, unlike the crime of rape of a child under the age of sixteen, requires proof that the victim did not consent. See Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010) (Commonwealth must prove, among other things, that the defendant "had a conscious purpose ... to commit an indecent or offensive touching of the complainant without her consent"). Indecent assault and battery on a person aged fourteen or older is, therefore, not a lesser included offense of rape of a child. Similarly, the crime of rape of a child is not a lesser included offense of indecent assault and battery because it requires proof of sexual intercourse. See Commonwealth v. Roby, 462 Mass. 398, 404 (2012) ( "elements of statutory rape [G.L. c. 265, § 23,] are [1] sexual intercourse or unnatural sexual intercourse with [2][a] child under sixteen years of age").
By contrast, indecent assault and battery on a child under the age of fourteen is a lesser included offense of rape of a child. Commonwealth v. Suero, 465 Mass. 215, 220–221 (2013).
Concluding as we do that the defendant's convictions are not duplicative, his argument that he did not waive his right against double jeopardy by pleading guilty need not be addressed. Finally, we reject the defendant's argument that there was insufficient factual basis for the indecent assault and battery charge. The prosecutor's factual recitation included that the defendant pushed the victim onto the bed and took off her clothes before vaginally raping her.
Accordingly, we affirm the February 5, 2016, order denying the defendant's motion to strike.
So ordered.