COMMONWEALTH v. MARK BELYEA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant was convicted of rape of a child with force, see G. L. c. 265, § 22A. He appeals, contending that the judge erred by (1) instructing the jury on the lesser included offense of rape of a child, see G. L. c. 265, § 23 (statutory rape), and (2) sending the jury back to continue deliberations without their consent in violation of G. L. c. 234A, § 68C. We affirm.

Background. We summarize the facts the jury could have found, reserving certain details for later discussion.

In the summer of 2016, the eleven year old victim relocated to Massachusetts with her mother and siblings, living for a brief period with the defendant (the victim's uncle) and several other extended family members.¹ One day that summer, the victim's mother and two aunts took some of the children to cheer practice, leaving the victim at home with the defendant, two of his children, and her other uncle. While the others were out, the victim, the defendant, and his children began playing a wrestling game together.

At some point, the defendant ordered his children to go to another room, leaving the victim and the defendant alone. The defendant then positioned himself on top of the victim as she lay on her back and used his left hand to hold down her right hand. The defendant asked the victim several times if she was “okay,” to which the victim responded both “yes” and “no,” as she was “really confused” whether they were still playing the game. The victim tried to push the defendant off, but she was unable to get up because the defendant was “sitting over [her] body.” When she looked down, she saw the defendant's right arm positioned between her legs, by her vagina. The victim then kicked the defendant's arm, and she felt the defendant's thumb “was in [her] vagina.” The victim was “shock[ed],” as she was not aware of the penetration until that moment. She kicked the defendant again, and he “let [her] get up and run away.” The defendant followed the victim into the living room and typed a message for her on his phone that read, “I hope that you liked it.” The victim reported the assault for the first time in 2020 to her then boyfriend.

At trial, the defense theory was one of denial that the incident occurred. At the close of evidence, the prosecutor asked for an instruction on statutory rape as a lesser included offense of rape of a child with force. The judge agreed and so instructed the jury.

The jury deliberated for approximately six hours over two half days before sending their first note, which asked, “[i]f we can't come to 100% agreement, what are the next steps?” The judge consulted the parties, and with their agreement, gave a “pre-Tuey“ instruction (pre-Tuey). The jury deliberated for roughly five more hours before sending the second note, which asked: “[w]hen we are close to [a] unanimous decision but it is clear we are at an impass[e], what are the next steps/strategies/procedures that have been effective for jurors/juries in the past?” The judge then made a finding that the jury's deliberations had been due and thorough and gave the Tuey-Rodriquez instruction, again with the agreement of the parties.² Approximately one hour and fifteen minutes later, the jury found the defendant guilty of rape of a child by force.

Discussion. 1. Lesser included offense instruction. The defendant timely objected to the lesser included offense instruction, so we assess “whether the instruction[ ] [was] legally erroneous, and (if so) whether that error was prejudicial” (quotation and citation omitted). Commonwealth v. Kelly, 470 Mass. 682, 688 (2015).

The defendant contends that the judge erred in giving this instruction, because (1) as a matter of law, statutory rape is not a lesser included offense of rape of a child with force and (2) even if it is a lesser included offense, these facts did not support such an instruction. We disagree.

The defendant's first argument requires little discussion. “It is well established that statutory rape is a lesser included offense of rape of a child with force.” J.H. v. Commonwealth, 479 Mass. 285, 289 (2018). See Commonwealth v. Thayer, 418 Mass. 130, 132 (1994) (“statutory rape ․ is a lesser included offense within the forcible rape of a child under sixteen years of age within G. L. c. 265, § 22A”); Commonwealth v. Franks, 365 Mass. 74, 78 (1974) (“statutory rape punishable under G. L. c. 265, § 23, is a crime included within the crime of forcible rape punishable under § 22A”); Commonwealth v. Harris, 74 Mass. App. Ct. 105, 110 (2009) (“the crime with which the defendant was charged was rape of a child by force, as to which rape of a child is a lesser included offense”).³

We move to the question of whether the evidence permitted an instruction on statutory rape and conclude that it did. The test for determining when the evidence permits such an instruction is “whether the evidence at trial presents a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.” Commonwealth v. Russell, 470 Mass. 464, 480 (2015), quoting Commonwealth v. Porro, 458 Mass. 526, 536 (2010).

Here, the defendant asserts that the jury could not rationally acquit him of forcible rape but convict him of statutory rape where he denied that the assault occurred. This argument fails. That the defense was one of complete denial does not mean the evidence could not support a rational finding that the rape occurred without the use of force. See Commonwealth v. Walden, 380 Mass. 724, 726-727 (1980) (defendant's denial of crime does not preclude instruction on lesser included offense where evidence rationally supports instruction). To the contrary, there was evidence that directly called into question the element of force, which distinguishes forcible rape of a child from statutory rape. See Commonwealth v. Donlan, 436 Mass. 329, 337-338 (2002). The victim testified that the defendant was positioned on top of her and held her hand down with his hand, and that she was unaware of the penetration until after she kicked the defendant's arm. There was further evidence that, during the rape, the defendant asked the victim repeatedly if she was “okay,” and she responded both “yes” and “no,” because she was confused, believing his questions to be in the context of their wrestling game. The defendant, through cross-examination, challenged the credibility of the victim and presented evidence regarding his physical inability to wrestle due to back injuries from various car accidents. See Commonwealth v. Blevins, 56 Mass. App. Ct. 206, 209 (2002) (defendant's testimony “if believed” was “sufficient to support” acquittal on greater offense and conviction on lesser included offense).

Taken as a whole, this evidence provided a rational basis for the jury to find that the defendant engaged in sexual assault with the victim but accomplished it without the use of force. The judge did not err in giving the lesser included offense instruction.⁴ See Thayer, 418 Mass. at 132 (“if on any hypothesis of the evidence, the jury could have found the defendants guilty of statutory rape, giving an instruction to the jury on this crime is not error”).⁵

2. Jury deliberations. The defendant next argues, for the first time on appeal, that the judge violated G. L. c. 234A, § 68C,⁶ by directing the jury to continue deliberating after they had twice reported being deadlocked, which coerced the jury into a guilty verdict.⁷

General Laws c. 234A, § 68C, prohibits a judge from “ordering further deliberations by a deadlocked jury that has twice reported being at an impasse after due and thorough deliberation, unless they explicitly consent or seek clarification on the law.” Read v. Commonwealth, 495 Mass. 312, 323 (2025). The statute safeguards jurors “from being coerced into reaching a verdict.” Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982) (interpreting substantially identical precursor statute, G. L. c. 234, § 34). Whether due and thorough deliberation has occurred for purposes of the statute “is a matter of discretion for the trial judge.” Veiga v. Schochet, 62 Mass. App. Ct. 440, 443 (2004). Similarly, “[w]hether the jury are deadlocked, and whether the Tuey-Rodriquez charge should be given at a particular time, are matters that are addressed to the discretion of the trial judge.” Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 295 (2005). We thus review these decisions for abuse of discretion. See Commonwealth v. Jenkins, 416 Mass. 736, 740-741 (1994).

First note. The defendant contends that the judge made an implicit finding that the deliberations had been due and thorough by giving the pre-Tuey in response to the first note. However, there is no indication that the judge believed the jury was at an impasse or had engaged in due and thorough deliberations, particularly given the limited time the jury had been deliberating and their request for guidance to help further their deliberations. See Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 171-172 (2017) (determination of due and thorough deliberation “requires evaluation of the complexity of the case, the extent of evidentiary conflict on material issues, and the total length of time the jury [have] spent attempting to resolve those conflicts” [quotation and citation omitted]). Rather, the judge consulted with the parties regarding the pre-Tuey, and both parties expressed agreement. We thus see no basis for concluding that the judge made such an implicit finding. And for the same reasons, the judge did not abuse his discretion in failing to make such a finding. See Veiga, 62 Mass. App. Ct. at 443-444 (no abuse of discretion in failing to declare impasse where notes sent by jury used phrases with word “deadlock,” but context “suggested that the process of deliberating was ongoing rather than over”); Winbush, 14 Mass. App. Ct. at 683 (after receipt of ambiguous note, within judge's discretion to determine whether jury were deadlocked).

Second note. Following receipt of the second note, the judge found that the jury's deliberations were due and thorough.

Having so found, the judge gave them the Tuey-Rodriquez instruction and sent them back for further deliberation. See Commonwealth v. Chalue, 486 Mass. 847, 860 (2021) (“When used appropriately and after the jury have engaged in due and thorough deliberation, the [Tuey-Rodriquez] charge is an important tool ‘designed to urge the jury to reach a verdict by giving more serious consideration to opposing points of view’ ” [citation omitted]).⁸ The judge was not required to obtain their consent before doing so because this was their first return after he found due and thorough deliberations. See Commonwealth v. Keane, 41 Mass. App. Ct. 656, 659 (1996) (because judge did not determine that deliberations had been due and thorough until second report of deadlock, judge did not err in sending jury out to deliberate further without their consent). By its terms, the consent requirement is not triggered until the judge finds that the jury's deliberations have been due and thorough, and they twice report being at an impasse. See G. L. c. 234, § 34. That was not what happened here.

Judgment affirmed.

FOOTNOTES

1.   The defendant's wife and their children, along with the victim's other aunt and uncle and their children also lived in the home. There was conflicting testimony as to whether the victim and her immediate family were living in the apartment for a period of six weeks or the full summer. This conflict does not impact our decision.

2.   See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973); Commonwealth v. Tuey, 62 Mass. 1, 2-3 (1851).

3.   Statutory rape falls squarely within the definition of a lesser included offense because both elements of statutory rape, “(1) sexual intercourse or unnatural sexual intercourse, with (2) a child under sixteen years of age,” Commonwealth v. Miller, 385 Mass. 521, 522 (1982), are included within rape of a child with force. See Commonwealth v. King, 445 Mass. 217, 222 & n.2 (2005), cert. denied, 546 U.S. 1216 (2006) (elements of rape of child under sixteen by force are: [1] sexual intercourse or unnatural sexual intercourse with [2] child under sixteen years of age [3] by force and against the child's will or by threat of bodily injury). “Under our long-standing rule derived from Morey v. Commonwealth, 108 Mass. 433, 434 (1871), a lesser included offense is one whose elements are a subset of the elements of the charged offense.” Commonwealth v. Porro, 458 Mass. 526, 531 (2010).

4.   Because we conclude there was no error, the defendant's arguments that the “erroneous instruction” confused the jury and violated his constitutional rights by amending the indictment are also without merit. See Commonwealth v. Walker, 426 Mass. 301, 303 (1997) (“A defendant may properly be convicted of one crime, though not expressly charged with that precise crime, if it is a lesser included offense of the crime charged” [quotation and citation omitted]).

5.   The defendant has also failed to demonstrate any prejudice where the jury convicted him of the greater offense. Cf. Commonwealth v. Dorazio, 472 Mass. 535, 543 (2015) (no prejudice where claimed error related to charge of which defendant was acquitted).

6.   General Laws c. 234A, § 68C, provides as follows:“If a jury, after due and thorough deliberation, returns to court without having agreed on a verdict, the court may state anew the evidence or any part of the evidence, explain to them anew the law applicable to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law.”

7.   Not only did the defendant not object, but he also explicitly agreed with the judge regarding the timing of both the pre-Tuey and the full Tuey-Rodriquez charge.

8.   That the jury returned a verdict one hour and fifteen minutes after the instruction does not establish coercion. See, e.g., Jenkins, 416 Mass. at 740 (that jury returned fifteen minutes after Tuey-Rodriquez instruction with guilty verdict “does not point to coercion”).