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17-P-900                                         Appeals Court

                  COMMONWEALTH   vs.   REINALDO PRADO.


                            No. 17-P-900.

           Middlesex.     May 4, 2018. - October 17, 2018.

               Present:   Agnes, Neyman, & Sacks, JJ.


Rape.  Robbery. Practice, Criminal, Assistance of counsel.
     Words, "Unnatural sexual intercourse."



     Indictments found and returned in the Superior Court
Department on March 31, 2009.

     Following review by this court, 86 Mass. App. Ct. 1103
(2014), a motion for a new trial, filed on August 8, 2016, was
heard by Kathe M. Tuttman, J.


     Jeffrey G. Harris for the defendant.
     Emily K. Walsh, Assistant District Attorney, for the
Commonwealth.


     NEYMAN, J.    In this case, we are asked to determine whether

the act of forcing a person to penetrate her own genital opening

constitutes rape within the meaning of G. L. c. 265, § 22.       We

hold that it does, and thus affirm the order denying the

defendant's motion for new trial.
                                                                    2


    Background.     1.   Procedural history.   Following a jury

trial in the Superior Court, the defendant, Reinaldo Prado, was

convicted of one count of aggravated rape, see G. L. c. 265,

§ 22 (a), three counts of armed robbery, see G. L. c. 265, § 17,

and three counts of witness intimidation, see G. L. c. 268,

§ 13B.    Represented by the same attorney he had at trial, the

defendant appealed.      A panel of this court affirmed the

judgments in a decision issued pursuant to our rule 1:28.     See

Commonwealth v. Prado, 86 Mass. App. Ct. 1103 (2014).

    More than two years later, the defendant, represented by

new counsel, filed a motion for new trial, claiming that his

trial counsel was ineffective for (a) failing to argue that

G. L. c. 265, § 22, does not contemplate rape by compelled self-

penetration; and (b) failing to challenge the sufficiency of the

evidence of armed robbery where the Commonwealth proved only

that the defendant used a BB gun and not a firearm as alleged in

the indictment.    Following a hearing, the judge1 issued a written

memorandum of decision and order denying the motion for new

trial.    The defendant now appeals therefrom.

    2.     Facts from trial.   The charges against the defendant

arose from two robberies and sexual attacks that occurred in

Burlington and Tewksbury on January 24 and 25, 2009.     In both




    1    The motion judge also was the trial judge.
                                                                    3


instances, the defendant responded to advertisements for adult

services on the Internet Web site "Craigslist," arranged to meet

the victims at a hotel, robbed them at gunpoint, and threatened

to find or to kill them if they contacted the police.2   With

respect to the January 24 incident, the defendant was convicted

of aggravated rape for forcing the victim to put her fingers

into her vagina.   Specifically, during the robbery he pulled out

a black gun, backed the victim into a computer chair in the

hotel room, touched her breast, and emptied the contents of her

purse onto the bed.   After the victim grabbed her engagement

ring from among those items, the defendant directed her at

gunpoint to insert her fingers into her vagina.   The victim did

so, against her will.3




     2 With respect to the January 25, 2009, attack, the
defendant bound the victims' hands together with zip ties; stole
from them $340 cash, two passports, two cellular telephones,
bank cards, drivers' licenses, and two computers; ordered one
victim to perform oral sex on the other; and warned them that he
had their identification and would kill them if they contacted
the police. As to this incident, the jury convicted the
defendant of armed robbery and intimidation of a witness, and
acquitted him of aggravated rape and indecent assault and
battery.

     3 The defendant was also charged with and prosecuted for
another count of rape predicated on evidence that he forced his
finger into the victim's vagina. As reflected by the specific
verdict slips, the jury acquitted the defendant on that count,
but convicted him of rape for forcing the victim to penetrate
her vagina with her own fingers.
                                                                     4


    The evidence at trial was corroborated through, among other

things, (a) a surveillance video recording; (b) the defendant's

statements to the police; (c) the retrieval of several items

from the defendant and from his truck, including a BB gun, a box

of commercial grade electrical zip ties consistent with those

used to restrain two of the victims, a cellular telephone (cell

phone) belonging to one of the victims, handwritten telephone

numbers for other Craigslist advertisements offering adult

services, and papers bearing the telephone number of one of the

victims and the Burlington hotel address; and (d) the retrieval

of another cell phone, laptop computers, laptop computer

carrying cases, and passports, all belonging to the victims of

the two incidents, located during a search of the defendant's

apartment pursuant to a search warrant.

    3.   Legal standards.   A motion for new trial may be granted

only if it appears that justice may not have been done.      Mass.

R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).      Such

motions are committed to the sound discretion of the judge,

Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are

granted only in extraordinary circumstances," Commonwealth v.

Comita, 441 Mass. 86, 93 (2004).    "Reversal for abuse of

discretion is particularly rare where the judge acting on the

motion was also the trial judge."    Commonwealth v. Schand, 420

Mass. 783, 787 (1995).
                                                                     5


    Where, as here, a motion for a new trial is based on

ineffective assistance of counsel, the defendant must show that

the behavior of counsel fell measurably below that of an

ordinary, fallible lawyer and that such failing "likely deprived

the defendant of an otherwise available, substantial ground of

defence."   Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (second

prong of ineffective assistance test met if there is substantial

risk of miscarriage of justice arising from counsel's failure).

    Discussion.   1.     Aggravated rape.   The defendant claims

that G. L. c. 265, § 22, does not criminalize compelled self-

penetration.   He contends that because there was no physical

contact between the defendant and the victim, the evidence

failed to satisfy the plain language of the statute requiring

"unnatural sexual intercourse."    He further argues that there is

no Massachusetts precedent allowing a conviction of rape upon

evidence of compelled self-penetration, that § 22 is ambiguous

and thus must be construed against the Commonwealth under the

rule of lenity, and that § 22 is unconstitutionally vague.

    The Commonwealth responds that the defendant's arguments

ignore established case law broadly interpreting nonconsensual

unnatural sexual intercourse to include myriad sexual acts

forced on unwilling victims.    See Commonwealth v. Gallant, 373

Mass. 577, 590 (1977).    We conclude that Massachusetts law
                                                                   6


establishes that unnatural sexual intercourse is broad enough to

include compelled penetration of a victim's genital opening.

    Our analysis begins with the plain language of the statute

and, in particular, the words "unnatural sexual intercourse."

"We interpret statutory language to give 'effect consistent with

its plain meaning and in light of the aim of the Legislature'

unless to do so would achieve an 'absurd' or 'illogical'

result."    Commonwealth v. Scott, 464 Mass. 355, 358 (2013),

quoting Sullivan v. Brookline, 435 Mass. 353, 360 (2001).

"Words and phrases shall be construed according to the common

and approved usage of the language."    Scott, supra, quoting

Opinion of the Justices, 313 Mass. 779, 781-782 (1943).

"However, the construction of a word or phrase may vary from its

plain meaning when such a meaning would 'involve a construction

inconsistent with the manifest intent of the law-making body or

repugnant to the context of the same statute'" (citation

omitted).   Scott, supra.

    Prior to 1974, G. L. c. 265, § 22, provided:     "Whoever

ravishes and carnally knows a female by force and against her

will shall be punished."    By St. 1974, c. 474, § 1 (1974

amendment), entitled "An Act redefining the elements

constituting the crime of rape and related offenses," the

Legislature amended § 22.    The new language provided, in

relevant part, "Whoever has . . . unnatural sexual intercourse
                                                                    7


with a person, and compels such person to submit by force and

against his will," shall be guilty of rape.4

     In Gallant, 373 Mass. at 583-584, the Supreme Judicial

Court analyzed the meaning and the impact of the 1974 amendment,

and held that it extended the protections of the Massachusetts

rape statutes.   The 1974 amendment effected a significant change

in the law beyond abolishing artificial distinctions based on

gender and replacing the archaic terminology of "ravishing" and

"carnal knowledge" with the more contemporary "sexual

intercourse."    Id. at 584.   Indeed, the 1974 amendment

"necessarily rework[ed] the common law definition of rape," and

"must be viewed as part of a comprehensive attempt to redefine

the legal elements of rape."    Id. at 583, 584.   Under the

amended law, "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. at 584.   Moreover, the court


     4 By St. 1980, c. 459, § 6, entitled "An Act providing
graduated penalties and victim compensation for the crime of
rape and related offenses," the Legislature further amended
G. L. c. 265, § 22. Among other things, this amendment created
subsections "(a)" (delineating elements and punishment for
aggravated rape) and "(b)" (delineating elements and punishment
for nonaggravated rape), provided that rape committed "during
the commission" of armed robbery or other enumerated crimes
constituted aggravated rape, and provided enhanced penalties for
rape committed with aggravating circumstances.
                                                                    8


specified that the scope of the term "unnatural sexual

intercourse" is "broad," and that "the Legislature necessarily

intended to treat modes of sexual connection other than common

law rape as equally serious invasions of personal integrity."

Id. at 584-585, 590.   Consistent with the tenets of Gallant,

subsequent case law recognized various modes and means of rape.

See, e.g., Commonwealth v. Nuby, 32 Mass. App. Ct. 360, 362

(1992); Commonwealth v. Guy, 24 Mass. App. Ct. 783, 786-787

(1987).

    We turn to the conduct at issue in the present case.      The

defendant, while brandishing a gun during an armed robbery,

forced the victim, against her will, to penetrate her vagina

with her fingers.   We conclude that such conduct constitutes a

"mode[] of sexual connection" that embodies an "equally serious

invasion[] of personal integrity" as common-law rape.    Gallant,

supra at 585.   As the judge noted in her order denying the

motion for new trial, the "gravamen of the [rape] charge, as set

forth in the statute, is sexual penetration by force and against

the [victim's] will or by threat of bodily injury."   See

Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001) ("Sexual

intercourse is defined as penetration of the victim, regardless

of degree"); Commonwealth v. Sherry, 386 Mass. 682, 687 (1982)

("The essence of the crime of rape, whether aggravated or

unaggravated, is sexual intercourse with another compelled by
                                                                      9


force and against the victim's will or compelled by threat of

bodily injury").   That is what occurred here.

    The defendant counters that the definition of unnatural

sexual intercourse does not include the conduct at issue here,

because "[t]here was no physical contact."   We disagree.    First,

there was physical contact here -- offensive, intrusive, and

forced physical contact -- in the form of the victim's fingers

inserted into her vagina by command of the armed defendant,

backed by the threat of deadly force.

    Second, to the extent that the defendant contends that

there was no physical contact "by the defendant," the argument

is still unavailing.   Pursuant to G. L. c. 265, § 22 (a), "there

is no requirement that the sexual contact involve penetration of

the victim by the perpetrator."   Guy, 24 Mass. App. Ct. at 786.

Rather, our precedent recognizes the myriad ways by which rape

is perpetrated, even without physical contact by the defendant.

See, e.g., Nuby, 32 Mass. App. Ct. at 362 (defendant guilty of

forcible rape of child for compelling girl friend's son to

penetrate her vagina with his tongue and fingers); Guy, supra at

784-787 (defendants guilty of rape for forcing victim to perform

cunnilingus on two consenting females).   See also State v.

Thomas, 619 S.W.2d 513, 513 (Tenn. 1981) (defendant guilty of

rape where he forced victim at gunpoint to perform oral sex on

her husband).   The common thread in these cases is some form of
                                                                   10


forced penetration compelled by the defendant, and not a literal

touching by the defendant.    Cf. Commonwealth v. Davidson, 68

Mass. App. Ct. 72, 74 (2007) ("our cases do not require that the

defendant himself perform the touching" to be convicted of

indecent assault and battery).

    Third, and finally, we disagree with the defendant's

argument that there was no physical contact within the meaning

of Gallant because there was no "intrusion[] of a part of a

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

of another person's body."    Gallant, 373 Mass. at 584.5    The

facts of this case epitomize what § 22 (a) prohibits:       an

intrusion into another's (i.e., the victim's) genital opening,

by an object -- the victim's own fingers -- committed through

the force of the defendant.    See Lopez, 433 Mass. at 726-727

("Sexual intercourse is defined as penetration of the victim,

regardless of degree"); Commonwealth v. Cifizzari, 397 Mass.

560, 562, 576-577 (1986) (defendant's use of mop handle to

penetrate victim constitutes rape within meaning of statute).

See also People v. Scott, 271 Ill. App. 3d 307, 313 (1994)

(victim's finger is object within meaning of Illinois aggravated


    5  Consistent with the language in Gallant, the judge here
instructed the jury, in relevant part, that "[u]nnatural sexual
intercourse includes oral and anal intercourse including
[fellatio] and cunnilingus and other intrusions of a part of a
person's body or other object into the genital or anal opening
of another's body."
                                                                   11


criminal sexual assault statute); Kirby v. State, 625 So. 2d 51,

55 (Fla. Dist. Ct. App. 1993) (where defendant forced victim to

insert her fingers into her vagina, court held that finger is

"object" within context of Florida sexual battery statute).

That the defendant here chose to penetrate the victim with her

fingers does not render the act a lesser crime.    To the

contrary, Gallant instructs that in view of the innumerable ways

in which rape may be perpetrated, courts should not create

artificial limits on the meaning of unnatural sexual

intercourse.   See id. at 590 ("[i]t is probable that the

Legislature deemed fruitless any attempt to delineate the full

variety of coercive sexual intrusions it wished to include in

the overarching term 'unnatural sexual intercourse'").      See also

Scott, supra ("If [the defendant] had grabbed [the victim's]

hand and physically placed it in her vagina, we would not

entertain any argument that intrusion had not occurred because

her hand was not an object.   The only difference between the

hypothetical and the evidence here is the manner in which the

assailant intruded the object upon the victim").   We decline to

do so here, where "[i]t is difficult to imagine conduct more

violative of social and behavioral expectations, or more

disruptive of psychic integrity."   Gallant, supra at 589-590.

See Commonwealth v. Chretien, 383 Mass. 123, 131 (1981), quoting

Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 648-649 (1978)
                                                                     12


(construction of statute "should advance rather than defeat the

purpose of the statute").

    We likewise reject the defendant's arguments that G. L.

c. 265, § 22 (a), is unconstitutionally vague, and that the rule

of lenity mandates a different result.    The defendant had

sufficient notice that his actions constituted criminal

felonious conduct as delineated in Gallant, 373 Mass. at 584-587

(articulating meaning of unnatural sexual intercourse and

rejecting claim that child rape statute is unconstitutionally

vague).   See Robinson v. Berman, 594 F.2d 1, 2 (1st Cir. 1979)

("A statute whose terms have a commonly understood meaning or

have been clarified by judicial explanation or by application to

particular conduct is not unconstitutionally vague").

Furthermore, the defendant was on notice that the act of

compelling a person to "play with herself" constitutes indecent

assault and battery.   Commonwealth v. Portonova, 69 Mass. App.

Ct. 905, 905 (2007).   The rulings in Gallant, 373 Mass. at 584-

587, and Portonova, supra at 905-906, negate the defendant's

claim that the rape statute is unconstitutionally vague.      "The

essence of the fair warning requirement embodied in the due

process clause is that a person should not be punished for an

act he could not know was criminal."     Robinson, supra at 3.   A

person who commits an act while on notice that it violates one

statute "ha[s] no cause to complain that he had no notice his
                                                                      13


conduct violated another statute," even where the maximum

penalty under that other statute is more severe.   Id., citing

Gallant, supra at 586.   Although the maximum penalty for rape

exceeds that for indecent assault and battery, see G. L. c. 265,

§§ 13H, 22, "an argument premised on the unconstitutionality of

a statute for vagueness does not address the issue of differing

potential punishments.   Unless prosecutorial abuse of discretion

in charging [a defendant] under the harsher statute is alleged

. . . we see no due process violation."    Robinson, supra.     See

Gallant, supra at 586 n.11.

    Moreover, the defendant was also on notice that the

distinction between the crimes of rape and indecent assault and

battery is the element of penetration.    See Commonwealth v.

Donlan, 436 Mass. 329, 335-336 (2002) ("Indecent assault and

battery is a lesser included offense of rape of a child by

force. . . .   The difference between the two offenses is the

element of penetration"); Commonwealth v. Walker, 426 Mass. 301,

304 (1997) (elements of rape and indecent assault and battery

are same "except for the aggravating factor of penetration in

the rape charge that distinguishes the greater offense from the

lesser offense").   Where the evidence in the present case

involved the additional element of penetration, and where the

defendant was on notice of the rulings in Gallant and Portonova,

supra, he had sufficient notice that his conduct constituted
                                                                      14


rape and derives no benefit from the rule of lenity.     See

Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 787 (1989)

(evidence of penetration necessary to prove acts of rape "in

order to differentiate those acts from other prohibited sexual

touchings").   In addition, a holding that an indecent assault

and battery, aggravated by penetration, constitutes the same

offense as a forced touching without penetration would create an

illogical and absurd result.    See Scott, 464 Mass. at 358.

Accordingly, the statute and Massachusetts common law provide

the defendant clear warning as to proscribed activities.        See

Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 305 (1999)

("Given that the defendant's conduct fell squarely within the

statute, counsel lacked a cogent argument that the statute was

unconstitutionally vague as applied to the defendant").

     In sum, the defendant's act of forcibly penetrating the

victim's vagina with her own fingers fell within the scope of

unnatural sexual intercourse under G. L. c. 265, § 22.     It

follows, therefore, that counsel was not ineffective.     See

Saferian, 366 Mass. at 96.     Accordingly, the judge correctly

denied the motion for new trial on this basis.6


     6 The defendant cites to cases in other jurisdictions
holding that compelled self-penetration does not constitute
rape. See, e.g., State v. Bryant, 670 A.2d 776, 779 (R.I.
1996). That notwithstanding, we adhere to Massachusetts case
law interpreting the language of our rape statutes which, as
discussed, compels a different result.
                                                                     15


    2.   Armed robbery indictment.     Citing Commonwealth v.

Garrett, 473 Mass. 257 (2015), the defendant also contends that

his trial counsel was ineffective for not challenging the

purported discrepancy between the armed robbery indictment and

the evidence, which proved only that he used a BB gun and not a

"dangerous weapon, to wit:   firearm" as alleged in the

indictment.   The argument is unavailing.

    In Garrett, the defendant was indicted and convicted of

masked armed robbery by means of a firearm.     Id. at 257-258.

The defendant was not charged with armed robbery by means of a

dangerous weapon.   Id. at 258 n.1.    Rather, the relevant

indictments alleged, among other things, that the defendant,

armed "with a handgun," committed armed robbery while masked

(emphasis supplied).   Id. at 264.    The evidence at trial,

however, showed that the defendant used a BB gun.     Id. at 258.

The Supreme Judicial Court vacated the judgment because the

court determined that a BB gun is not a firearm for the purpose

of the armed robbery statute and, thus, the evidence in support

of the indictment was insufficient.     Id. at 263-264.   The case

was remanded for entry of a verdict of guilty on the lesser

included offense of unarmed robbery.    See id. at 267.    The court

noted that "[t]he defendant was not indicted for, and thus

cannot be convicted of, armed robbery with a dangerous weapon."

Id. at 267 n.12.
                                                                  16


     In the present case, by contrast, the evidence was

sufficient to support the crime as charged in the indictment.

The armed robbery indictment alleged, among other things, that

the defendant, "armed with a dangerous weapon, to wit:    firearm

did assault [the victim] with intent to rob her, and thereby did

rob . . ." (emphasis supplied).   The Commonwealth's evidence

amply demonstrated that the defendant was armed with a dangerous

weapon as that term has been defined in our case law.    See

Commonwealth v. Powell, 433 Mass. 399, 402 (2001) (replica or

fake weapon is dangerous weapon "if the victim would, in all the

surrounding circumstances, reasonably believe that the object

was a real weapon").7   By drawing the indictment to allege the

crime of armed robbery "with a dangerous weapon," rather than

"with a handgun," the Commonwealth here avoided the concerns

delineated in Garrett, 473 Mass. at 268 (Gants, C.J.,

concurring) ("Had the Commonwealth drawn its indictment to

allege the crime of armed robbery with a dangerous weapon, the

defendant would properly have been found guilty of armed robbery


     7 Consistent with the holding in Powell, supra at 404, the
judge in the present case instructed, in relevant part, "A
person who uses a toy gun or other fake weapon to commit a
robbery may be convicted of armed robbery if the victim
reasonably took it to be a real weapon capable of inflicting
bodily injury. The law of armed robbery does not require the
Commonwealth to show that the instrument was actually used. It
is sufficient if the Commonwealth proves beyond a reasonable
doubt that the defendant was actually armed with a dangerous
weapon."
                                                                    17


because the BB gun in this case was a dangerous weapon, which

under our case law includes a weapon that appears to be a

firearm, even if not actually a firearm").     Where, as here, "it

reasonably appeared, in all the circumstances, that the object

in the defendant's possession was capable of inflicting serious

bodily injury or death, the jury could conclude that that object

was a dangerous weapon and that the robbery was therefore an

armed robbery."8   Powell, supra at 404.

     The defendant maintains that the problem raised in Garrett

nonetheless persists here because the indictment specified the

dangerous weapon as, "to wit:     firearm."   We disagree.   The "to

wit" language in the indictment constituted a nonfatal variance

under our precedent.     See Commonwealth v. Harris, 9 Mass. App.

Ct. 708, 710-711 (1980) (judgment predicated on armed robbery

with gun affirmed where Commonwealth tried case on basis of

victim's testimony that underlying robbery was committed with

gun, even though indictment specified that defendant was "armed

with a dangerous weapon, to wit, a knife").     The defendant's

argument ignores that he was convicted of the charges as

submitted to the jury.     The jury instruction correctly specified

that the Commonwealth was required to prove that the defendant


     8 Of course, a BB gun may qualify as a dangerous weapon in
its own right, without regard to its resemblance to some other
form of weapon. Compare Powell, supra at 404.
                                                                  18


"was armed with a dangerous weapon," and did not specify that

the weapon must be a firearm.9   Thus, in the context of this

case, the "to wit" language was superfluous.   See Commonwealth

v. Grasso, 375 Mass. 138, 139 (1978) ("a defendant is not to be

acquitted on the ground of variance between the allegations and

proof if the essential elements of the crime are correctly

stated, unless he is thereby prejudiced in his defense");

Commonwealth v. A Juvenile, 365 Mass. 421, 440 (1974) (language

in indictment or complaint specifying means of death is

superfluous and, thus, "defendant is not entitled to an

acquittal by reason of the Commonwealth's failure to prove

unnecessary allegations in the description of a crime");

Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930 (1988) ("The

language in the indictment specifying the particular weapon used

is superfluous").   Finally, "[t]he particular type of weapon

with which the armed robbery was committed was not an essential

element of the crime" of armed robbery.   Harris, supra at 712.

Accordingly, the defendant has failed to demonstrate ineffective

assistance of counsel and, thus, the judge correctly denied the

motion for new trial on this basis.

                                    Order denying motion for
                                      new trial affirmed.


     9 The defendant did not object to the judge's comprehensive
instructions regarding the dangerous weapon element of armed
robbery.
19
