COMMONWEALTH v. ANDINO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the denial of his motion to vacate his conviction of indecent assault and battery on a child, G. L. c. 265, § 13B. He argues that the conviction is duplicative of his conviction of rape of a child, G. L. c. 265, § 23, and therefore violates the constitutional prohibition against double jeopardy, because indecent assault and battery is a lesser included offense of rape of a child and the two offenses are “so closely related in fact as to constitute a single crime.” See Commonwealth v. Thomas, 401 Mass. 109, 225-226 (1987) (convictions of rape and lesser included offense of indecent assault and battery arising out of single criminal episode must be based on separate acts to avoid double jeopardy). We conclude that the convictions are not duplicative and so affirm.

During his plea colloquy, the defendant agreed to the prosecutor's recitation of the following pertinent facts:

“Once the car was parked, the defendant leaned over and began kissing [the twelve-year-old victim], inserted his tongue into her mouth. The victim tried, without success, to push the defendant away. The defendant then put both of his hands inside of her underpants and he rubbed his hands back-and-forth and up-and-down, penetrating her vagina as she tried to get away from him.”

In accepting the plea, the judge noted that there was a sufficient factual predicate for the rape charge as well as “a separate offense of indecent assault and battery that's established in these facts.”

In his order denying the defendant's motion, the judge further explained that the two charges were premised on “discrete actions.” The defendant's act of “forcibly kissing [the victim], inserting his tongue into her mouth” constituted the crime of indecent assault and battery. See Commonwealth v. Vasquez, 65 Mass. App. Ct. 305, 306-310 (2005) (evidence that defendant placed his open mouth on twelve year old's lips sufficient to establish indecent assault and battery on child). The defendant's act of “digitally penetrating her vagina” constituted the rape. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 238 (2013) (evidence that defendant touched victim's vaginal area with his hand sufficient to establish rape).

As the judge noted, this is not a case where the lesser included offense was necessary to accomplish the greater offense and therefore subsumed within it. Compare Commonwealth v. Suero, 465 Mass. 215, 220-221 (2013) (indecent act of moving victim's underwear to side was necessary to accomplish vaginal rape), and Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (indecent act of removing victim's clothing necessary to further assault of rape by vaginal penetration).

The defendant nevertheless challenges the judge's conclusion that the two offenses were distinct by arguing that the crime did not involve a prolonged sexual assault in which multiple individual assaults could take place. Nor was there any evidence of a “pause, interruption, delay, or break in continuity from one act to the other,” he argues.² That two distinct acts occur close in time within a brief episode does not preclude conviction for both offenses, so long as they are in fact distinct acts. See Commonwealth v. King, 445 Mass. 217, 225-226 (2005) (indecent assault and battery premised on defendant causing victim to scratch his penis and rape premised on defendant causing victim to lick his penis, during a single sexual assault, constituted distinct acts). There was no error.

Order denying motion to vacate conviction on the charge of indecent assault and battery on a child affirmed.

FOOTNOTES

21.   The cases that the defendant relies on in support of this argument involve jury trials in which insufficient jury instructions risked the possibility that the jurors rested separate convictions on the same act. See Commonwealth v. Neils N., 73 Mass. App. Ct. 689, 697, 698-699 (2008). Here, there was no such risk, as the judge specifically articulated his recognition of separate factual predicates for each offense.