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17-P-1299                                                Appeals Court

                   COMMONWEALTH   vs.   CIRILO GARCIA.


                            No. 17-P-1299.

         Bristol.       December 10, 2018. - March 1, 2019.

        Present:    Green, C.J., Wolohojian, & Wendlandt, JJ.



Rape.  Incest. Unnatural Sexual Intercourse. Obscenity,
     Dissemination of matter harmful to minor. Witness,
     Intimidation. Practice, Criminal, Indictment, Instructions
     to jury. Constitutional Law, Indictment.



     Indictments found and returned in the Superior Court
Department on August 16, 2012.

     The case was tried before Frances A. McIntyre, J.


     Michael J. Hickson for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.


     GREEN, C.J.     After a jury trial, the defendant, Cirilo

Garcia, was convicted of dissemination of matter harmful to a

minor, G. L. c. 272, § 28; rape of a child aggravated by age
                                                                   2


difference, G. L. c. 265, § 23A (a);1 incest, G. L. c. 272, § 17;

and witness intimidation, G. L. c. 268, § 13B, all arising from

a series of assaults against his biological daughter when she

was between the ages of seven and eleven.2   On appeal he contends

that (1) the conviction of dissemination of matter harmful to a

minor must be vacated, because of a statutory exception

applicable to parents and legal guardians, (2) his conviction on

one indictment for rape must be vacated, because the indictment

was improperly amended at trial, (3) the conviction of incest

must be vacated because the jury instructions prejudicially

enlarged the indictment for that charge, and (4) the evidence of

witness intimidation was insufficient to support his conviction,

because the threats supporting the conviction occurred before

any criminal investigation began.   We discern no merit in the

defendant's challenges to his convictions of incest and witness

intimidation, but we conclude that we are constrained to reverse

the challenged counts of rape and dissemination of matter

harmful to a minor.

     Background.   The defendant is the victim's father.    The

defendant moved to the United States from Guatemala around the


     1 The defendant was convicted on two indictments charging
this offense. He challenges only the first on appeal.

     2 The defendant was also convicted of rape of a child using
force, G. L. c. 265, § 22A, but he does not challenge this
conviction on appeal.
                                                                       3


time of the victim's birth in 2000.     His wife, the victim's

mother, followed him to the United States in 2003, leaving their

two children with their maternal grandmother in Guatemala.        In

2006, when the victim was five or six years old, she moved to

New Bedford to live with her parents and siblings3 and met the

defendant for the first time.     The defendant and his wife worked

different shifts, such that the defendant was home alone with

the children in the morning and sent them off to school.

However, the victim missed "a lot" of school because her father

kept her home.     When the victim was seven years old, the

defendant began raping her.

     In all, from the time the victim was seven until she was

eleven, the defendant raped her forty or more times.     As the

defendant raped the victim, he would talk about the victim's

aunt's recent marriage and sex life despite the victim's

protests that she was "too little to hear about it."     The

defendant also showed the victim naked men "putting their

private stuff on each other" on the Playboy television channel

as he raped her.     The defendant threatened to kill the victim,

her mother, and her family if she ever told anyone about the

abuse.    He told the victim that even if he went to jail and got

deported he would pay someone to kill her and her family.




     3   Two more children had been born in the United States.
                                                                     4


     On July 8, 2012, the defendant raped the victim vaginally,

orally, and anally.     This was the last time the defendant raped

her; she disclosed the abuse to her mother on that date.    She

disclosed the abuse because her parents were fighting, the

children had to intervene, and the victim thought her "dad was

actually going to kill" her mother.     The victim went into her

mother's bedroom, locked the door, and hid in the closet with

her mother as she described the abuse.     After the disclosure,

the victim spoke to the police and went to the hospital.    A

nurse there took vaginal and anal-rectal swabs.      The

defendant's deoxyribonucleic acid (DNA) matched the major

profile of the sperm found on both swabs.     A supervisor in the

State police forensics laboratory testified that the defendant's

DNA profile is "very rare."4

     Discussion.   1.   Dissemination of matter harmful to a

minor.   The defendant contends, and the Commonwealth concedes,

that his conviction of dissemination of matter harmful to a

minor cannot stand because the statute provides a defense where

"the defendant was in a parental or guardianship relationship




     4 The witness explained, "[T]he probability of a randomly
selected, unrelated individual having this DNA profile matching
that major male profile in both items is approximately 1 in
26.59 quintillion of the Caucasian population, 1 in 1.036
sextillion of the African-American population, 1 in 1.981
quintillion of the Hispanic population, and 1 in 6.341
quintillion of the Asian population."
                                                                    5


with the minor."   G. L. c. 272, § 28.   See Commonwealth v.

Poitras, 55 Mass. App. Ct. 691, 692 n.1 (2002).   Our independent

review of the record, see Commonwealth v. McClary, 33 Mass. App.

Ct. 678, 686 n.6 (1992), cert. denied, 510 U.S. 975 (1993),

demonstrates that the defendant was in a parental relationship

with the victim,5 and he is entitled to the parental defense

provided by the statute.   Accordingly, his conviction of

dissemination of matter harmful to a minor under G. L. c. 272,

§ 28, must be reversed.

     2.   Rape of a child aggravated by age difference.     The

defendant contends that his conviction of rape of a child

aggravated by age difference on indictment no. 2012-742-1

(indictment no. 1) must be reversed because the Commonwealth's

proof, the judge's instructions, and the verdict slip

constructively amended the indictment.   The defendant argues

that the judge's instructions "enlarge[d]" the indictment,

"replaced" its allegation, and "impermissibly permit[ted] a

material change" in the grand jury's work, thereby violating his

due process rights by "adding an additional ground of criminal

liability for which the defendant could be found guilty."




     5 The victim's original birth certificate was admitted into
evidence; it identified the defendant as her father. Moreover,
the victim and the defendant lived together, and the defendant
was home in the mornings with the victim and her siblings as the
children prepared for school.
                                                                        6


        Crimes must be "proved as charged," so as to "protect[] the

grand jury's role in the criminal process and ensure[] that the

defendant has proper notice of the charges against him."

Commonwealth v. Hobbs, 385 Mass. 863, 869 (1982).       See art. 12

of the Massachusetts Declaration of Rights.       "A constructive

amendment to an indictment occurs when either the government

(usually during its presentation of evidence and/or its

argument), the court (usually through its instructions to the

jury), or both, broadens the possible bases for conviction

beyond those presented by the grand jury" (citation omitted).

Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 691-692 (2000).

"[A]n amendment may not broaden the charges against a

defendant."       Commonwealth v. Ruidiaz, 65 Mass. App. Ct. 462, 464

(2006).       Indictments may be amended as to form but not as to

substance.       See Mass. R. Crim. P. 4 (d), 378 Mass. 849 (1979).

An amendment is substantive where "an acquittal on the original

charge would not bar prosecution on the amended charge."       Bynoe,

49 Mass. App. Ct. at 691.

        Here, indictment no. 1 charged the defendant with rape of a

child aggravated by age difference under G. L. c. 265, § 23A

(a).6       The text of the indictment alleged that the defendant "did



       General Laws c. 265, § 23A, provides for punishment for
        6

"[w]hoever unlawfully has sexual intercourse or unnatural sexual
intercourse, and abuses a child under 16 years of age and: (a)
there exists more than a 5 year age difference between the
                                                                     7


have sexual intercourse" with the victim, a "child under sixteen

years of age when there existed more than a five-year age

difference" between them.    At the commencement of trial, the

Commonwealth made clear that it intended to rely at trial on the

oral or anal rape of the victim, and the Commonwealth

consistently did so during the course of the trial.     Consistent

with that approach, the judge's instructions and the verdict

slip for that indictment referenced "unnatural" or "oral" sexual

intercourse.

    "Sexual intercourse," as used in the statute, means "the

traditional common law notion of rape, the penetration of the

female sex organ by the male sex organ, with or without

emission."   Commonwealth v. Gallant, 373 Mass. 577, 584 (1977).

"Similarly, the definition of 'unnatural sexual intercourse'

must be taken to include oral and anal intercourse, including

fellatio, cunnilingus, and other intrusions of a part of a

person's body or other object into the genital or anal opening

of another person's body."   Id.7   General Laws c. 265, § 23A (a),



defendant and the victim and the victim is under 12 years of
age" (emphasis added).

    7  The Commonwealth's argument on this point, relying on
Commonwealth v. Smith, 431 Mass. 417 (2000), is misplaced.
Although the Supreme Judicial Court in that case noted that rape
as defined in G. L. c. 265, §§ 22-23, included both natural and
unnatural sexual intercourse after legislative amendments sought
to redefine and modernize the statutes, the court was silent as
to whether an indictment in which the Commonwealth elected to
                                                                    8


clearly prohibits both sexual intercourse (natural) and

unnatural sexual intercourse with children.8   However, the

Commonwealth chose to charge the defendant, in indictment no. 1,

with the former, and the indictment made no mention of the

latter.9   At trial, the evidence, the jury instructions, and the

verdict slip on that indictment all concerned the alleged oral

rape of the victim, an act of unnatural sexual intercourse.

     "Although the trial court did not permit a formal amendment

of the indictment, the effect of what it did was the same."

Stirone v. United States, 361 U.S. 212, 217 (1960).   This




charge solely "sexual intercourse" would encompass the statute's
disjunctively described category of unnatural sexual
intercourse. Because we interpret statutes by giving
independent meaning to each phrase, the Commonwealth's argument
is incorrect. See Gallant, 373 Mass. at 585, quoting
Commonwealth v. Brooks, 366 Mass. 423, 428 (1974) ("Every phrase
of a statute should be given some effect").

     8 We recognize that the language appearing in the statute
dates to an earlier time. We do not intend by our reference to
the term, consistent with the statutory language, to adopt or
endorse any pejorative connotation that may flow from the
designation of such conduct as "unnatural" (even when engaged in
by consenting adults), and we invite the Legislature to update
the statutory language.

     9 We note that had the Commonwealth charged the defendant
with "sexual intercourse and unnatural sexual intercourse" in
the indictment, it could have proceeded under either theory at
trial. See Commonwealth v. Murphy, 415 Mass. 161, 164 (1993)
("Where a crime can be committed in any one of several ways, an
indictment properly charges its commission in all those ways,
using the conjunction 'and' in joining them" [citation
omitted]).
                                                                     9


constructive amendment was one of substance.10    Accordingly, the

defendant's conviction of rape of a child aggravated by age

difference on indictment no. 1 must be reversed.     See

Commonwealth v. Mayotte, 475 Mass. 254, 265-266 (2016) (vacating

conviction where indictment charged one statutory theory of

crime while testimony and jury instructions expanded indictment

by introducing different theory); Commonwealth v. Barbosa, 421

Mass. 547, 554 (1995) ("Where there is a substantial risk that

the defendant was convicted of a crime for which he was not

indicted by a grand jury, we cannot apply a harmless error

standard. . . .     Instead, we must reverse the convictions").

     3.   Incest.    The defendant similarly contends that his

conviction of incest must be reversed based on the trial judge's

instructions allegedly enlarging the indictment.     The indictment

charged the defendant with "[i]ncest" and alleged that the

defendant, "being father of" the victim, had "carnal knowledge

of the body" of the victim.     The "carnal knowledge" language

from the indictment directly tracks the statutory form language

set out in G. L. c. 277, § 79.11    See Commonwealth v. Canty, 466




     10The defendant acknowledged at oral argument that double
jeopardy would not bar new charges based specifically on the
oral rape. See Bynoe, 49 Mass. App. Ct. at 691.

     11"Incest. (Under Chap. 272, Sec. 17.) -- That A.B., being
the father of C.D. . . ., did have carnal knowledge of the body
of said C.D." G. L. c. 277, § 79.
                                                                  10


Mass. 535, 547-548 (2013) ("Indeed, the various statutory forms

of indictment in G. L. c. 277, § 79, do not set forth all of the

required elements for many crimes, such as larceny, but these

forms contain sufficient descriptions of the crimes listed

therein" [quotation omitted]); Commonwealth v. Lopes, 455 Mass.

147, 168-169 (2009) (finding "no merit" to defendant's claim

that trial judge erred by permitting Commonwealth to seek

conviction on joint venture theory that did not appear on face

of indictment and was not presented to grand jury, where

indictment for murder tracked statutory form and, further,

defense counsel was aware of testimony before grand jury that

provided evidence supporting joint venture theory).

     General Laws c. 272, § 17, punishes "[p]ersons within

degrees of consanguinity within which marriages are prohibited

or declared by law to be incestuous and void, who . . . have

sexual intercourse with each other, or who engage in sexual

activities with each other, including but not limited to, oral

or anal intercourse, [or] fellatio . . . ."12   The trial judge's


     12The defendant erroneously contends that "carnal
knowledge" "for purposes of the Commonwealth's incest statute
exclusively means 'sexual intercourse' which is the insertion of
the male penis into a female's vagina." The cases the defendant
cites for this argument either predate the 2002 amendment to the
incest statute, which broadened the sexual conduct prohibited to
include unnatural sexual intercourse, G. L. c. 272, § 17, as
amended through St. 2002, c. 13, or do not support the
defendant's desired understanding of carnal knowledge and sexual
intercourse.
                                                                    11


instructions regarding this indictment quoted the statute and

defined "sexual intercourse" for purposes of the incest statute

as "natural or unnatural."   The indictment sufficiently alleged

incest by following the statutory form; the incest statute

prohibits natural and unnatural sexual intercourse between

people within specified degrees of consanguinity, and the trial

judge's instructions therefore did not vary from, constructively

amend, or enlarge the indictment.     See Canty, 466 Mass. at 547-

548; Lopes, 455 Mass. at 168-169.13    Accordingly, we discern no

error in the defendant's conviction of incest.

     4.   Witness intimidation.   The defendant contends that the

trial judge should have allowed his motion for a required

finding of not guilty on the indictment for witness

intimidation, because the intimidation occurred before "any

stage of a criminal investigation."     G. L. c. 268, § 13B (1) (c)

(i), as appearing in St. 2006, c. 48, § 3.14    However, the

evidence was sufficient to support the defendant's conviction on

this charge.   We consider "the evidence in the light most

favorable" to the Commonwealth and determine whether "any

rational trier of fact could have found the essential elements


     13Moreover, the defendant cannot show the prejudice
required by G. L. c. 277, § 35. The defendant clearly had
notice of the crime with which he was being charged.

     14The defendant does not challenge the sufficiency of the
evidence for any of the other elements of witness intimidation.
                                                                    12


of the crime beyond a reasonable doubt."    Commonwealth v. Bin,

480 Mass. 665, 674 (2018), quoting Commonwealth v. Latimore, 378

Mass. 671, 677-678 (1979).

    Under this familiar standard, there was sufficient evidence

that the defendant's witness intimidation occurred during a

stage of a criminal investigation.    "[T]o convict a defendant of

witness intimidation . . . the Commonwealth must prove that

. . . a possible criminal violation occurred that would trigger

a criminal investigation or proceeding . . . ."    Commonwealth v.

Fragata, 480 Mass. 121, 122 (2018).    "[T]he statute's reference

to a 'potential witness at any stage of a criminal

investigation' indicates that the investigation need not have

already begun when the intimidation occurred."    Id. at 125.

Therefore, a "potential witness at any stage of a criminal

investigation" encompasses those "who are likely to participate

in a future investigation that has not yet begun."    Id. at 126.

    The evidence introduced at trial demonstrated that the

defendant had raped the victim, his minor daughter, forty or

more times over a period of four years.    Even from the first

time the defendant raped the victim, when she was seven years

old, he told her that if she disclosed the abuse, he would "kill

me or mom and everyone, my family."    The last time the defendant

raped the victim -- vaginally, orally, and anally -- he said he

would kill her if she told anyone; if he went to jail, he would
                                                                  13


get deported and "send people to kill [the victim and her

family].   He's going to pay someone."   When the victim disclosed

the abuse to her mother, the victim went into her mother's

bedroom, locked the door, and insisted on hiding in the closet.

A rational jury could have found that the defendant's conduct of

raping his daughter was more than the "possible criminal

violation" Fragata requires the Commonwealth to demonstrate, and

that the victim was clearly a "potential witness" who was

"likely to participate in a future investigation."    Fragata, 480

Mass. at 122, 125-126.   Accordingly, there was sufficient

evidence to convict the defendant of witness intimidation under

G. L. c. 268, § 13B.

     Conclusion.   On the indictment charging dissemination of

matter harmful to a minor, and indictment no. 2012-742-1,

charging rape of a child aggravated by age difference, the

judgments are reversed, the verdicts are set aside, and

judgments shall enter for the defendant.    The remaining

judgments are affirmed.15




     15There is no need for resentencing, because the
defendant's sentences on both convictions reversed by this
opinion were concurrent with his sentences on the surviving
convictions. The defendant was sentenced to twenty to thirty
years for each of the two aggravated rape convictions and the
conviction of rape of a child using force, to be served
concurrently. On the incest conviction, the defendant was
sentenced to six to nine years from and after the concurrent
rape sentences. Lastly, on the convictions of dissemination of
                                                           14


                                  So ordered.




matter harmful to a minor and witness intimidation, the
defendant was placed on ten years' concurrent probation.
