Commonwealth v. Peter J. Caggiano, Jr.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-596

COMMONWEALTH

vs.

PETER J. CAGGIANO, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

was convicted of two counts of rape of a child aggravated by age

difference, in violation of G. L. c. 265, § 23A. On appeal, the

defendant contends that (1) the judge erred in denying his

motion for a required finding of not guilty on one of the counts

because the grand jury did not indict him for that offense, and

(2) the prosecutor's closing argument resulted in a substantial

risk of a miscarriage of justice. We affirm.

Background. 1. Evidence presented to the grand jury. The

defendant was indicted in July 2017. At the grand jury

proceeding, the victim's grandmother testified that on May 20,

2017, after the victim left the defendant's room, the victim
told her that she was "not going to sleep with [the defendant]

anymore," the defendant "touched" her and "tried to kiss [her]

on [her] lips," and he was "still drunk." A police detective

testified that the victim was born in 2009, and that she told

her mother on May 20, 2017, that the defendant "becomes sexual

when he is drinking" and he "was really drunk last night and he

put his hands in my underwear and his mouth on my butt and

private spot." The detective further testified that the

victim's aunt overheard the victim tell her mother that the

defendant "stuck his hand down her pants and licked her butt."

The prosecutor played a video recording of the victim's Sexual

Assault Intervention Network (SAIN) interview, in which the

victim stated that the defendant had rubbed his finger inside

her vagina and she felt something wet, like a tongue, moving

around in her "butt hole."

The prosecutor asked the grand jury to return a bill for

two charges, stating they were "both the same, that being

aggravated statutory rape, the aggravating factor being the age

difference." A juror asked, "We're questioning why we have two

for the exact same thing. If you can explain why there's two

for the exact same thing." The prosecutor responded: "The

Commonwealth would be asking for indictments for each type of

touching. Each type of touching is a separate count, the

touching of the vagina and a touching of the buttocks would each

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be -- the Commonwealth is alleging separate counts." The grand

jury then returned two indictments, each one stating that "on or

about and between May 19-20, 2017," the defendant

"did have sexual intercourse or unnatural sexual
intercourse with a child . . . under the age of sixteen
years, and there existed more than a 5 year age difference
between the defendant and the child and the child was under
12 years of age, in violation of G. L. c. 265, § 23A."

2. Evidence at trial. The case was tried in 2022. We

summarize the pertinent facts presented at the trial, viewing

the evidence in the light most favorable to the Commonwealth and

reserving certain details for later discussion. See

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

The victim testified that in 2017 she lived with her mother

during the school week and stayed at the defendant's home on

weekends. The defendant lived in a house with his mother and

two adult sisters. His bedroom was on the first floor. The

victim normally slept with the defendant in his bed.

On Friday, May 19, 2017, the defendant took the victim to

McDonald's, then a convenience store where the defendant

purchased an alcoholic drink. At his house, he drank alcohol on

the couch. The victim went to sleep and woke up when it was

light outside. The defendant was on the edge of the bed,

texting. He put his phone down, moved near the victim, pulled

down her shorts and underwear, and put his finger in her vagina.

The victim felt "frozen" and was afraid to talk. The defendant

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put his tongue in the victim's vagina, which felt wet and

uncomfortable. The defendant then pulled up the victim's shorts

and underwear, climbed over her, and went to sleep. The victim

got up, went upstairs, told her grandmother that the defendant

was drunk and had touched her, and asked her to call her mother.

The mother brought the victim to the hospital, where she

was examined by a registered nurse who collected evidence. The

mother was also interviewed by a police detective.1 On May 26,

2017, the defendant was interviewed by a police detective and

provided a buccal swab. An audio recording of the defendant's

interview was played at trial. The defendant did not testify.

A forensic scientist from the State Police Crime Laboratory

testified that biological material recovered from the victim's

underwear matched the defendant's deoxyribonucleic acid (DNA)

profile.

In her opening statement, the prosecutor told the jury that

the evidence would show that the defendant "put his finger in

[the victim's] vagina and she felt his tongue penetrate her, as

well." The judge instructed the jury that the Commonwealth had

charged the defendant with "separate indictments," one involving

penetration by the defendant's finger, the other involving

1 The victim testified at trial that she told the detective
that the defendant put his tongue in her "butthole" because, at
that time, she did not understand the difference between that
and her vagina.

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penetration by the defendant's tongue, and that the jury had to

be "unanimous as to which specific act constitutes the offense

charged." Two verdict slips were submitted to the jury, one

specifying "finger in vagina," the other specifying "tongue in

vagina," and the jury found the defendant guilty on both.

Discussion. 1. Required finding of not guilty. The

defendant contends that the judge erred in denying his motion

for a required finding of not guilty on the count of rape

involving the defendant's penetration of the victim's vagina

with his tongue. The defendant asserts that, under Commonwealth

v. Barbosa, 421 Mass. 547 (1995), the motion should have been

allowed because the grand jury did not indict him for that

offense. Rather, the defendant claims, that indictment was

based on an allegation that the defendant penetrated the

victim's anus with his tongue. The defendant does not challenge

the denial of his motion for a required finding as to the count

involving his penetration of the victim's vagina with his

finger.

Article 12 of the Declaration of Rights of the

Massachusetts Constitution (Article 12) "requires that no one

may be convicted of a crime punishable by a term in the State

prison without first being indicted for that crime by a grand

jury." Barbosa, 421 Mass. at 549. In Barbosa, the grand jury

heard evidence of two separate cocaine sales on a particular

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date, but indicted the defendant for only one offense on that

date. Id. at 548. After the Commonwealth offered evidence of

both sales, and the jury returned a general verdict of guilty,

id. at 549, the Supreme Judicial Court held that it was unclear

whether the sale of which the defendant was convicted was the

same sale for which he was indicted. Id. at 549-551. This

created "the very real possibility that the defendant was

convicted of a crime for which he was not indicted," in

violation of Article 12, id. at 551, requiring that the

conviction be reversed. Id. at 554.

Here, in contrast, the jury considered two indictments of

aggravated rape, and while the indictments themselves did not

contain specific language, the jury was instructed that the

first indictment was based on the allegation that the defendant

penetrated the victim's vagina with his finger and the second

indictment was based on the allegation that the defendant

penetrated the victim's vagina with his mouth. Unlike the

circumstances in Barbosa, there was no risk that the defendant

was convicted for a crime that he was not indicted for. The

defendant does not contend that the two indictments were based

on any acts by the defendant other than what he allegedly did on

May 19-20, 2017. Both indictments stated that the offense

occurred on that date. The defendant contends that the grand

jury indicted the defendant on one count "based upon evidence

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that he allegedly penetrated the [victim's] vagina with a

finger" and another count "based upon evidence that he allegedly

penetrated her buttocks with a tongue." That supposed

distinction is not set forth in the indictments, however, but

rather rests on the prosecutor's ambiguous and truncated

response to a grand juror's question. We do not view that

response to have enumerated, as the defendant argues, "two

separate and distinct acts involving two different body parts"

on which the two indictments had to be based. Rather, it was

the grand jury's responsibility to decide whether there was

probable cause to find that the defendant had committed two

distinct acts of "sexual intercourse or unnatural sexual

intercourse" as set forth in the indictments.2 Reversal is

therefore not required on the ground that the defendant was

2 The defendant refers in passing to "the issue of notice to
the defense." To the extent he claims that he was not on fair
notice of the factual bases for the indictment, such "bald
assertions of error that lack[ ] legal argument . . . [do not]
rise[ ] to the level of appellate argument required by" Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)
(quotations omitted). Kellogg v. Board of Registration in Med.,
461 Mass. 1001, 1003 (2011).

We further note that the defendant could have moved for a
bill of particulars, but did not. See G. L. c. 277, § 47A ("any
defense or objection based upon defects in the . . . indictment
. . . shall only be raised prior to trial"); Commonwealth v.
Hrycenko, 417 Mass. 309, 312 (1994) (defendant waived defense
that indictments did not give fair notice of charges by failing
to raise the issue before trial).

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convicted for a crime not charged by the grand jury. Barbosa,

421 Mass. at 549.3

Nor do we agree that either of the defendant's convictions

must be reversed because of a fatal variance between the

indictments and the proof at trial. See Commonwealth v. Semedo,

456 Mass. 1, 17 (2010). "A defendant shall not 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 defence." G. L. c. 277, § 35. See

Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). Here, there

was no error in how the indictments stated the elements of the

offense. As for prejudice, the indictments charged the

defendant with two counts of committing rape of a child

aggravated by age difference, and that was what the Commonwealth

sought to prove at trial. Because the indictments specified

that the alleged acts of rape took place "on or about and

between May 19-20, 2017," the defendant was sufficiently on

notice of the conduct for which he was charged. Article 12 does

not require the Commonwealth to "present to the grand jury

evidence of each theory under which the defendant may be found

guilty at trial of the crime for which he is indicted."

3 While we recognize that the Commonwealth can indict a
defendant using general language, the issue in this case would
have been obviated had the Commonwealth clearly articulated the
alleged offenses in each count of the indictment.

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Commonwealth v. Clayton (No.1), 63 Mass. App. Ct. 608, 612

(2005). Nor must there be "an exact match between the evidence

presented at trial and that presented to the grand jury." Id.

See Commonwealth v. Berry, 63 Mass. App. Ct. 910, 912 (2005).

The evidence presented to the grand jury allowed it to find that

the defendant committed two distinct acts of sexual intercourse

or unnatural sexual intercourse with a child under the age of

sixteen years, and at trial the evidence was sufficient to prove

beyond a reasonable doubt that the defendant penetrated the

victim's vagina with his finger and his tongue. Accordingly,

the judge did not err in denying the defendant's motion for a

required finding of not guilty. G. L. c. 277, § 35.

2. The prosecutor's closing argument. The defendant also

argues that the prosecutor improperly shifted the burden of

proof to him during closing argument. Because the defendant did

not object the prosecutor's argument at trial, we review to

determine whether any error created a substantial risk of a

miscarriage of justice. See Commonwealth v. Desiderio, 491

Mass. 809, 815 (2023). An error during closing argument creates

a substantial risk of a miscarriage of justice "if we have a

serious doubt whether the result of the trial might have been

different had the error not been made." Commonwealth v.

Silvelo, 96 Mass. App. Ct. 85, 91 (2019), quoting Commonwealth

v. Azar, 435 Mass. 675, 687 (2002). We have no such doubt here.

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The defendant argues that the prosecutor shifted the burden

of proof by arguing that "[t]he defense explanation for these

crimes defies common sense." We disagree.4 A closing argument

"must be viewed 'in the context of the entire argument, and in

light of the judge's instruction to the jury, and the evidence

at trial'" (citation omitted). Commonwealth v. Barbosa, 477

Mass. 658, 670 (2017). "[A] prosecutor may properly 'emphasize

the strong points of the Commonwealth's case and the weaknesses

of the defendant's case,' even if he or she may thereby 'prompt

some collateral or passing reflection' on the fact that the

defendant has not produced certain evidence" (citation omitted).

Commonwealth v. Grier, 490 Mass. 455, 473 (2022). Here, the

challenged statement by the prosecutor was a response to defense

counsel's argument that the victim "made up the story" about the

defendant's assault because it was a "special weekend" for her

siblings and no "special attention" was being paid to her. A

prosecutor may properly respond to the defense's argument that

the victim's accusation was "made up" and that her testimony was

not consistent or credible. See Commonwealth v. Rakes, 478

4 We note that the judge repeatedly instructed the jury that
closing arguments are not evidence, the burden of proof is on
the Commonwealth, and the defendant has no burden of proof. We
presume that the jury followed the judge's instructions. See
Commonwealth v. Williams, 450 Mass. 645, 651 (2008).

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Mass. 22, 45 (2017); Commonwealth v. Rogers, 43 Mass. App. Ct.

782, 785-786 (1997).

Nor was it improper for the prosecutor to point out, in

response to the defense's argument that the forensic scientist

"could not tell you how" the defendant's "DNA came to be located

on" the victim's underwear," that "[t]he defense does not deny

that this was his DNA." Defense counsel expressly referred to

it as "[the defendant's] DNA" while arguing that the DNA could

have been transferred to the underwear through other means. It

was not error for the prosecutor to acknowledge that point in

the course of responding to the defendant's theory about how the

DNA got there.

Lastly, it was not error for the prosecutor to argue that

the defendant was somewhat equivocal in his denial of

responsibility during his interview with the police detective

days after the offense. Defense counsel began her closing

argument by asserting that the defendant "walk[ed] into that

police station" and said that he "didn't do any of it." She

acknowledged, however, that the defendant also "questioned

himself" and stated that: "I'm not saying [the victim's] lying,

but I'm not saying that that's what happened either." In

response, the prosecutor argued that defense counsel "can't

explain what the defendant really said on May 26th, 2017, when

he said, 'I'm not saying that she is lying.'" "A prosecutor is

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entitled to comment on a defendant's statement to police and

omissions therefrom" (citations omitted). Commonwealth v.

Whitman, 453 Mass. 331, 348 (2009). The prosecutor may also

"respond to the defense argument [and] comment on the . . .

weakness of the defense, as long as argument is directed at the

defendant's defense and not at the defendant's failure to

testify" (quotation and citation omitted). Commonwealth v.

Witkowski, 487 Mass. 675, 686 (2021). Here, the prosecutor's

argument focused on the defendant's statement to the police and

did not implicate the defendant's right not to testify.

Viewing all of the contested statements by the prosecutor

in the context of the entire closing argument, we conclude that

they permissibly conveyed the point that the weight of the

credible evidence pointed toward the defendant's guilt, not that

the defendant had to prove his innocence. The defendant argues

that even if no one statement by the prosecutor, standing alone,

is sufficient to warrant the reversal of his convictions,

reversal is nonetheless warranted due to cumulative error.

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Given our conclusions on the underlying alleged errors,

there was no cumulative error.

Judgments affirmed.

By the Court (Walsh, Toone &
Tan, JJ.5),

Clerk

Entered: February 19, 2026.

5 The panelists are listed in order of seniority.

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