Commonwealth v. Rios

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17-P-690 Appeals Court

COMMONWEALTH vs. EDGARDO RIOS.

No. 17-P-690.

Middlesex. November 14, 2018. - November 12, 2019.

Present: Agnes, Blake, & Neyman, JJ.

Rape. Assault with Intent to Rape. Indecent Assault and
Battery. Jury and Jurors. Practice, Criminal, Jury and
jurors, Voir dire, Interrogation of jurors, Challenge to
jurors, Empanelment of jury, Instructions to jury, Lesser
included offense, Duplicative charges, Duplicative
convictions. Due Process of Law, Examination of jurors.

Indictments found and returned in the Superior Court
Department on February 7, 2012.

The cases were tried before Heidi E. Brieger, J.

Michael P. Gerace for the defendant.
Emily Kathleen Walsh, Assistant District Attorney, for the
Commonwealth.

AGNES, J. A Superior Court jury found the defendant,

Edgardo Rios, guilty on two indictments charging rape of a child

by force, G. L. c. 265, § 22A, two indictments charging

aggravated rape of a child, G. L. c. 265, § 23A, one indictment
2

charging indecent assault and battery on a child under the age

of fourteen, G. L. c. 265, § 13B, and assault with intent to

rape a child, G. L. c. 265, § 24B, as a lesser included offense

of aggravated rape of a child (indictment one). 1 The defendant

raises numerous claims of error. We vacate the judgment on

indictment one, and affirm the judgments on the remaining

indictments.

Background. We summarize the evidence presented at trial,

reserving certain details for the discussion of specific issues.

The victim was eleven years old at the time of trial in 2014 and

between eight and nine years old at the time described in the

indictments. The defendant and the victim's mother met through

church in 2005, and later reconnected in 2010 or 2011. Upon

reconnecting, the defendant began assisting the mother by

driving her places -- including to appointments, stores, and

church -- as the mother did not have a car. The mother would

1 On indictment one, the judge directed a verdict in favor
of the defendant on the greater offense, and a verdict slip went
to the jury on the lesser included offense of assault with
intent to rape a child. The judge directed a verdict in favor
of the defendant with respect to two additional indictments
alleging aggravated rape of a child and two additional
indictments alleging rape of a child by force. The defendant
was sentenced to concurrent terms of imprisonment in State
prison for not less than fifteen nor more than fifteen years and
one day on the aggravated rape convictions, a concurrent
probationary term on the indecent assault with intent to rape
conviction, and, on the remaining convictions, ten years'
probation from and after the committed sentences.
3

assist the defendant by translating things into English.

Through this relationship the defendant and the mother became

friends, and the defendant came to know the victim and the

victim's two siblings. The defendant would sometimes be invited

to the mother's house and other times would just arrive

unannounced.

The victim made her first complaint of abuse on January 7,

2012. On that date, the mother hosted a birthday party for her

godson at her house. That morning, she called the defendant for

a ride to get a cake and other items for the party. He agreed

to do so and spent most of the day with the mother and the

victim. During the party, Jacqueline Flores, a friend of the

mother who had never met the defendant, observed the defendant

sitting alone with the victim in the living room. She saw the

defendant touch the victim "[i]n her private part" or vaginal

area while the victim was playing with the defendant's laptop.

When the defendant left the party, Flores, who testified as the

first complaint witness, questioned the victim about what had

occurred, and the victim admitted that she had been touched in

her private part.

At trial, the victim testified to several incidents of

abuse. According to the victim's testimony, some of these

incidents occurred only once and others recurred. The victim

testified to one incident that occurred at her mother's house
4

while playing on the defendant's laptop where the defendant

touched her private part on top of her clothes. While this

testimony was similar to the conduct observed by Flores on

January 7, 2012, the victim testified that this occurred on a

different occasion.

The victim also testified to abuse occurring in the

defendant's van. She testified that on one occasion when the

defendant was giving her a ride to school, he touched her front

private part and inserted his index finger in her butt. She

also testified to a separate occasion in the defendant's van

where the defendant rubbed his hand on her front private part

when taking the victim to see the Lowell Christmas tree.

The victim further testified that on more than one occasion

at the defendant's house on his bed he inserted his tongue in

her butt. Finally, the victim testified that on one occasion at

the defendant's house the victim returned from the bathroom to

find the defendant with his pants down and "balls" exposed. On

this occasion, the victim testified that the defendant tried to

get near her by trying to go to her front private part while her

pants were down but was unable to do so because she kicked out

in his direction.

Discussion. On appeal, the defendant argues that (1) the

trial judge improperly refused to excuse a juror for cause; (2)

two of the convictions are duplicative of convictions on greater
5

offenses and should be vacated; (3) the trial judge erroneously

instructed the jury concerning (a) collective memory and (b)

specific unanimity, and (c) improperly declined to instruct the

jury on lesser included offenses. The defendant also contends

that (4) the prosecutor made improper statements in closing

argument.

1. Jury empanelment. The defendant contends that the

judge erred by not striking a juror for cause. The judge first

arranged for the prospective jurors to answer questions in

writing and under oath that were contained in a written

"worksheet." These questions included those that must be asked

in every case, see Mass. R. Crim. P. 20 (b), 378 Mass. 889

(1979), 2 as well as other questions that were suggested by the

parties based on the nature of the offenses charged -- sexual

offenses against a child.

The judge then commenced an individual voir dire of each

prospective juror in open court and in the presence of the

2 Rule 20 (b) of the Massachusetts Rules of Criminal
Procedure provides in part that "[t]he court shall . . . examine
on oath a person who is called as a juror . . . to learn whether
he is related to either party, has any interest in the case, has
expressed or formed an opinion, or is sensible of any bias or
prejudice." See G. L. c. 234, § 28. Section 28 was repealed
and replaced by G. L. c. 234A, § 67A, after the time of the
defendant's trial, see St. 2016, c. 36, § 4, but the provisions
pertinent to this appeal were not materially changed. See note
7, infra.
6

defendant, but out of the hearing of other prospective jurors.

See Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994) (acting

under general superintendence powers, Supreme Judicial Court

ordered that in cases involving sexual offenses against minors,

judge must upon request question each potential juror

individually about whether potential juror was victim of

childhood sexual offense). The judge on her own excused the

first potential juror, who taught at a school that recruited

"highly court involved youth" and who was associated with a

group that "gives emotional support to people who have been

accused." The juror stated that it would be "very hard" for her

to be fair and impartial. When questioned further by the judge,

the prospective juror said she "would try" to be fair and

impartial, "would try" to decide the case based only on the law

and the evidence, and agreed with the judge's assessment that

she could not give those questions a "yes" or "no" answer. The

judge appropriately exercised her discretion and excused this

juror for cause. 3

The second juror to be individually questioned reported

that she was the victim of a violent crime as a result of having

been kidnapped in Brazil. "I don't know how -- you know, I'll

3 We note that, "by statute, [a person] may not be excluded
from serving as a juror because of his occupation. See G. L.
c. 234A, § 3." Blank v. Hubbuch, 36 Mass. App. Ct. 955, 958
(1994).
7

try to be impartial. I don't know how much that would affect

throughout the process." She also said, "[B]eing a mother of

young kids, I think that plays a role in terms of, you know, the

case." The judge reviewed with this juror each of the questions

on her confidential juror questionnaire in which she expressed a

reservation about whether she could be fair and impartial. 4 When

asked by the judge if she could put her personal experiences

aside, listen to the evidence fairly and impartially, and render

a verdict, she responded, "I'll do it to the best of my

ability." The judge inquired further, learning that the juror's

husband was with her when she was kidnapped, and again asked the

potential juror if she could be fair and impartial, whereupon

she stated, "I'll do the best of my ability." And, following a

further inquiry by the judge about her ability to put aside her

personal experiences and to be fair and impartial, the

prospective juror stated, "I'll do it to the best of my

ability."

The defendant challenged this juror for cause, arguing that

prior to the voir dire the prospective juror stated in several

places in her juror questionnaire that she could not be fair and

4 The record before us does not contain the potential
juror's confidential juror questionnaire, G. L. c. 234A, § 22,
or the written worksheet prepared by the court. We discern the
contents of the questionnaire and the worksheet from the
transcript of the empanelment process.
8

impartial. The judge rejected the defendant's challenge, noted

his objection, and found that this prospective juror could be

fair and impartial. The defendant then used a peremptory

challenge to remove this prospective juror from consideration,

and the judge excused her.

Although the juror in question was not among the

deliberating jurors, the judge's finding that the juror was

indifferent and thus eligible to sit on the jury required the

defendant to use his final peremptory challenge. The defendant

contends that he was prejudiced by being forced to accept

another juror (second juror) who was called to sidebar for a

voir dire after the juror in question; the defendant

unsuccessfully challenged the second juror for cause, and he

otherwise would have removed the second juror by using a

peremptory challenge. 5 See Commonwealth v. McCoy, 456 Mass. 838,

842 (2010) ("prejudice generally is shown by the use of a

peremptory challenge to remove the juror who allegedly should

have been excused for cause together with evidence that the

defendant later was forced to accept a juror he would have

challenged peremptorily but was unable to because his peremptory

challenges had been exhausted" [emphasis omitted]).

5 The defendant also unsuccessfully sought additional
peremptory challenges in order to have the second juror excused.
The judge denied this request and found that the juror was
indifferent. The juror was seated.
9

A person charged with a crime has a right under both the

Massachusetts and United States Constitutions to be tried by an

impartial jury. Commonwealth v. Long, 419 Mass. 798, 801-802

(1995). See Davis v. Allen, 11 Pick. 466, 467-468 (1831)

(impartial jury "is equally demanded by the general principles

of the common law"). The defendant's right to an impartial jury

is violated if even one member of the deliberating jury is not

impartial. See Gray v. Mississippi, 481 U.S. 648, 668 (1987)

("because the impartiality of the adjudicator goes to the very

integrity of the legal system, the . . . harmless-error analysis

cannot apply"). The judge's duty to ensure that the jury is

impartial extends to the entire trial and through the jury's

deliberations. See Commonwealth v. Colon, 482 Mass. 162, 167-

169 (2019) (where evidence of extraneous influence first

surfaced during deliberations, judge properly exercised

discretion by conducting individual voir dire of each juror,

excusing all influenced jurors, and determining that remaining

jurors were impartial). 6

6 Apart from the duty to ensure that both the defendant and
the Commonwealth have a trial before an impartial jury, the
judge has a responsibility to each person called for service as
a juror. "Judges and lawyers are reminded that jurors are
essential to the administration of justice. The jury system
provides the most important means by which laypersons can
participate in and understand the legal system." Commonwealth
v. Auguste, 414 Mass. 51, 59 n.3 (1992).
10

When a question of potential bias on the part of a

prospective juror arises, whether based on an answer to a

question on the confidential juror questionnaire, a worksheet

prepared by the judge, or an oral statement made by or

attributed to the prospective juror, the judge has a duty to

make inquiry of the juror and determine whether the prospective

juror can be fair and impartial and render a true and just

verdict. G. L. c. 234, § 28. 7 See Commonwealth v. Clemente, 452

Mass. 295, 325 (2008) (when during jury selection judge learned

of improper conversations among some members of venire who had

7 General Laws c. 234, § 28, second par. provides, in
pertinent part:

"For the purpose of determining whether a juror stands
indifferent in the case, if it appears that, as a result of
the impact of considerations which may cause a decision or
decisions to be made in whole or in part upon issues
extraneous to the case, including, but not limited to,
community attitudes, possible exposure to potentially
prejudicial material or possible preconceived opinions
toward the credibility of certain classes of persons, the
juror may not stand indifferent, the court shall, or the
parties or their attorneys may, with the permission and
under the direction of the court, examine the juror
specifically with respect to such considerations,
attitudes, exposure, opinions or any other matters which
may . . . cause a decision or decisions to be made in whole
or in part upon issues extraneous to the issues in the
case. Such examination may include a brief statement of
the facts of the case, to the extent the facts are
appropriate and relevant to the issue of such examination,
and shall be conducted individually and outside the
presence of other persons about to be called as jurors or
already called."
11

not yet been called, he conducted thorough inquiry of each

potential juror, excusing those who expressed doubts about

whether they could be impartial).

Impartiality in the context of whether a prospective juror

is indifferent and thus qualified to hear the case does not mean

that the individual has no opinions or views about any matter

directly or indirectly related to the case. "No human being is

wholly free of the interests and preferences which are the

product of his cultural, family, and community experience.

Nowhere is the dynamic commingling of the ideas and biases of

such individuals more essential than inside the jury

room." Commonwealth v. Soares, 377 Mass. 461, 487, cert.

denied, 444 U.S. 881 (1979). Rather, whether prospective jurors

are impartial depends on whether the jurors are able to "set

aside their own opinions, weigh the evidence (excluding matters

not properly before them), and follow the instructions of the

judge" (citation omitted). Commonwealth v. Bryant, 447 Mass.

494, 501 (2006). 8 "Juror bias is a question of fact to be

8 See Rule 6 (4) (h) of the Rules of the Superior Court,
adopted in 2017, after the trial in this case. The Supreme
Judicial Court has distinguished between a bias that arises from
the facts of the case which is not disqualifying if the judge is
satisfied that the prospective juror can set it aside and decide
the case based solely on the evidence and the law, and a bias
that is based on the juror's "life experience or belief system."
In the latter circumstance, the judge must determine whether
despite that bias the juror can be impartial because such biases
12

determined by the judge. A finding that a juror is impartial

will not be overturned on appeal unless the defendant makes a

clear showing of abuse of discretion or that the finding was

clearly erroneous." Commonwealth v. Emerson, 430 Mass. 378, 384

(1999), cert. denied, 529 U.S. 1030 (2000). See Commonwealth

v. Ferguson, 425 Mass. 349, 353-354 (1997); Long, 419 Mass. at

804 n.7; Commonwealth v. Ascolillo, 405 Mass. 456, 460 (1989).

In assessing the credibility of a prospective juror's answers to

questions by the judge or by counsel, the judge may accept a

juror's statement that he or she is impartial unless "solid

evidence of a distinct bias" appears. Commonwealth v. Leahy,

445 Mass. 481, 499 (2005). 9

may be impossible to set aside. Commonwealth v. Williams, 481
Mass. 443, 448-449 (2019).

9 See, e.g., Commonwealth v. Chongarlides, 62 Mass. App. Ct.
709, 711–712 (2004) ("Here, the juror indicated she 'knew' the
victim. The judge appropriately questioned her as to the nature
of the relationship and her ability to remain impartial. In
light of the juror's explanation that she knew the victim only
by virtue of living in the same town and having attended the
same high school, it was not error for the judge to rely on her
representation that she could be impartial"). In rare
circumstances, the lack of impartiality among a significant
number of prospective jurors may give rise to a presumption that
none of the potential jurors are impartial. See Commonwealth v.
Morales, 440 Mass. 536, 542 (2003). See also Commonwealth v.
Mattier (No. 2), 474 Mass. 261, 275 (2016) ("We have recognized
certain extreme circumstances where implied bias could be found:
[1] where it is disclosed that the juror is an actual employee
of the prosecuting agency, that the juror is a close relative of
one of the participants in the trial or the criminal
transaction, or that the juror was a witness or somehow involved
in the criminal transaction; [2] in a case where the trials of
13

Recently, the Supreme Judicial Court stated that, "[a]s a

general principle, it is an abuse of discretion to empanel a

juror who will not state unequivocally that he or she will be

impartial." Commonwealth v. Colton, 477 Mass. 1, 17 (2017).

In Colton, in response to a juror's reservations about the

concept of lack of criminal responsibility, the judge explained

the law to the juror. When asked if he could be fair to both

the defendant and the Commonwealth, the juror responded, "Yes, I

think so." The Supreme Judicial Court concluded that the judge

did not err in empanelling the juror, observing that the juror's

response "fairly could be viewed as unequivocal, and the judge

apparently credited it as such." Id. It is clear, therefore,

from Colton, that the law does not require a prospective juror

to use a specific form of words (for example, "I will be

impartial") before a judge may determine that the juror is

impartial. Instead, the question whether a juror stands

indifferent "turns on credibility and is the province of the

trial judge." Leahy, 445 Mass. at 497. "It is well settled

that a potential juror's use of seemingly equivocal language is

not determinative of the juror's ability to be

codefendants are severed and an individual observes the first
trial and sits as a juror in the second trial; and [3] where a
juror who has been the victim of a similar crime . . . has
consciously concealed that fact from the parties or the court"
[quotations and citations omitted]).
14

impartial." Commonwealth v. Bannister, 94 Mass. App. Ct. 815,

827 (2019). 10 Contrast Long, 419 Mass. at 804 (juror who

admitted bias should have been excused because he said only that

he "hope[d]" he could be impartial); Commonwealth v. Auguste,

414 Mass. 51, 53, 58 (1992) (judge improperly empanelled several

jurors who repeatedly expressed grave misgivings about their

abilities to be impartial). 11 Furthermore, "a judge is not

10See Commonwealth v. Prunty, 462 Mass. 295, 302 (2012) (no
abuse of discretion in seating African-American juror who
initially stated without reservation that he could be impartial,
but later stated he "would be able to do my best" to not let
defendant's racial prejudice affect juror's ability to be
impartial); Ascolillo, 405 Mass. at 459, 461 (no abuse of
discretion in empanelling juror whose final answer to judge's
inquiry about whether his experience as police officer and
assault victim would make him partial was "[n]o, I don't think
so"); Commonwealth v. Wilborne, 382 Mass. 241, 254 (1981) (no
abuse of discretion in empanelling juror who stated that she
"did not think" that her friend's experience as rape victim
would affect her ability to be impartial); Commonwealth v. Jaime
J., 56 Mass. App. Ct. 268, 273 (2002) (no abuse of discretion in
seating juror where, after asking juror if he could decide case
based "solely on the evidence you hear," juror replied, "I
probably could do that," notwithstanding that juror had informed
judge that girlfriend had been raped and assaulted nine years
earlier and that he had participated in prosecution of case; and
juror had stated that he had not formed opinion about case, but
that "it might be difficult" for him to be impartial).

11Judges must be alert to jurors who on the one hand
profess that they can be impartial, and yet "admit, contrarily,
to those strong and deep impressions, which will close the mind
against the testimony that may be offered in opposition to
them." Leahy, 445 Mass. at 498, quoting Commonwealth v.
Sinnott, 399 Mass. 863, 883 (1987). See, e.g., Commonwealth v.
Clark, 446 Mass. 620, 630 (2006) (juror should have been excused
for cause where, "[a]lthough [she] represented that she could be
impartial, [juror] explained that her ability to be impartial
with respect to her views about African–Americans 'would depend
15

required to excuse a juror or allow [a] challenge for cause

simply because the juror reveals a potential bias upon initial

questioning. It is proper for the judge to question further in

order to clarify whether the juror could be

impartial." Commonwealth v. Jaime J., 56 Mass. App. Ct. 268,

274 (2002). In such cases, the question is whether, upon

further inquiry that is both meaningful and fair, 12 and an

assessment of the juror's credibility, the judge finds that the

juror can be fair and impartial and render a true and just

verdict. See Leahy, 445 Mass. at 495.

In this case, the judge did not abuse her discretion in

concluding that the juror was impartial. The juror candidly

acknowledged her reservations but stated on three occasions that

she would be fair and impartial. The judge, who was present and

in a position to assess the demeanor of the juror, was entitled

on the person's circumstances.' This response [was] ambiguous,
and might have been an expression of racial stereotyping that
could have affected the outcome of the case. Further
questioning was required to resolve the ambiguity").

12"Although the judge may reasonably determine, after a
meaningful inquiry, that a juror's doubts about his or her own
impartiality are unfounded, that determination should be made
after the judge conducts an inquiry that could be reasonably
expected to determine impartiality. . . . That determination
should come from the juror's answers to the judge's questions,
and not from answers suggested or, in fact, required by the
questions. An inquiry into impartiality must be fair and
neutral. Jurors should not be coerced into a particular
response." Auguste, 414 Mass. at 57–58.
16

to conclude that the juror's additional comment ("to the best of

my ability") was not a retraction or qualification of the

juror's statement that she would be impartial, but rather merely

a form of speech. See Colton, 477 Mass. at 17. See

also Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 811

(2018). 13 Contrast Long, 419 Mass. at 799-800, 804 (error to

seat juror where defendant was of Cambodian ancestry and charged

with murder, juror stated he was opposed to war in Vietnam and

to Khmer Rouge, and, when asked if he could be impartial,

stated, "I would really hope that I could be"; fact that juror

also said earlier in colloquy, "I am more than willing to serve.

I will do my best," did not supply basis for judge's decision to

seat juror).

2. Duplicative convictions. The defendant argues that the

convictions of assault with intent to rape and indecent assault

and battery on a child should each be vacated as duplicative of

the convictions on the greater offense of rape of a child by

force. To convict a defendant of both a greater and lesser

included offense, the judge must "clearly instruct the jury that

13In reviewing an exercise of discretion by a trial judge,
an appellate court must take into consideration the "nuances of
conduct, tone, and evidence" that informed the decision made by
the trial judge and that may "escape the cold record" on appeal.
Commonwealth v. Preston, 393 Mass. 318, 324 (1984).
17

they must find that the defendant committed separate and

distinct criminal acts to convict on the different

charges." Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).

Where the judge fails to do so "the conviction of the lesser

included offense must be vacated as duplicative, even in the

absence of an objection, if there is any significant possibility

that the jury may have based convictions of greater and lesser

included offenses on the same act or series of acts." Id.

As to the conviction of assault with intent to rape a child

(G. L. c. 265, § 24B), this crime is a lesser included offense

of forcible rape of a child (G. L. c. 265, § 22A). Commonwealth

v. Egerton, 396 Mass. 499, 503 (1986). Accordingly, the assault

with intent to rape a child conviction was susceptible of being

duplicative of the two convictions of rape of a child by force.

See Kelly, 470 Mass. at 700.

The Commonwealth maintains that the assault with intent to

rape a child offense was intended to relate to the separate and

distinct incident at the defendant's apartment where the

defendant approached the victim with his pants down, and was

unsuccessful in carrying out the rape when she kicked in his

direction. However, the verdict slip for the assault with

intent to commit rape did not specify a date or a theory of the

crime, and the judge's instructions on the elements of assault

with intent to rape did nothing to specifically tie that offense
18

to a particular incident. Accordingly, we are unable to

determine what facts the jury used to support the conviction of

assault with intent to rape. Based on the other evidence

presented, the jury could have convicted the defendant of

assault with intent to rape (albeit as a lesser included

offense) based on either the incident in the van on the way to

school (finger in child's anal opening) or conduct at the

defendant's apartment (tongue in child's anal opening). As that

conduct was the subject of other indictments (for which the

defendant was ultimately convicted), a separate and distinct act

instruction should have been given to eliminate the risk of

duplicative convictions. Without such an instruction we cannot

say that there is no significant possibility that the conviction

on indictment one was duplicative of the convictions on the

greater offenses. See Kelly, 470 Mass. at 700. 14

3. Jury instructions. a. Collective memory. The

defendant contends that the judge erred by including certain

language in an instruction concerning the jury's fact-finding

function. The judge instructed:

14There is no significant possibility that the conviction
of indecent assault and battery on a child under the age of
fourteen was duplicative of the remaining convictions. The
verdict slip for that offense specified "hand on child's vaginal
area." The verdict slips for the other remaining convictions
specified either "tongue in child's anal opening" or "finger in
child's anal opening."
19

"Now, I'd like to call your attention to the fact that
there may be evidence that you do not remember collectively
as a jury. You are free to ignore that evidence if it is
something that not all of you are comfortable [sic] because
not all of you remember. It is your memory as a collective
jury about what the testimony was, and that recollection is
what should control your deliberations."

The defendant did not object to this instruction, so we review

to determine whether, if error, it created a substantial risk of

a miscarriage of justice. See Commonwealth v. Santos, 95 Mass.

App. Ct. 791, 795 n.7 (2019). The judge's choice of words is

unfortunate; jurors should not be instructed under any

circumstances to ignore evidence. The judge's use of the word

"ignore," taken out of context, is troubling. However, when

viewed in its entirety we think the instruction would have been

understood by the jury as a direction to consider all the

evidence, and to rely on their "collective memory." 15

Compare Commonwealth v. Miller, 457 Mass. 69, 78 (2010)

(instruction that "jurors' collective memory should control"

mitigated prosecutor's error in closing argument); Commonwealth

v. Colon, 449 Mass. 207, 225 n.18, cert. denied, 552 U.S. 1079

(2007) (same). Importantly, the judge in this case repeatedly

told the jury that their verdict must be unanimous, and that

they should not take a vote until each juror's point of view was

discussed and considered.

15Nothing we say in this opinion should be read as an
endorsement of the use of such an instruction.
20

We are satisfied that, even if this particular expression

of the collective memory instruction was erroneous, any error

did not create a substantial risk of a miscarriage of justice.

To the extent that the instruction is viewed as ambiguous or at

least opaque, we are reassured by the fact that the judge

instructed the jury to "give a full and fair consideration to

all of the evidence in the case" and for each juror to "fully

and fairly express your opinion about the particular question

you're discussing."

b. Specific unanimity. The defendant also argues that the

judge's instruction on specific unanimity was defective. 16 As

the instruction was not objected to, we review to determine if

error, whether it created a substantial risk of a miscarriage of

16 In part, the judge instructed:

"You heard evidence -- some of it you may believe and some
of it you may not -- it's up to you -- that certain events
took place in the car, certain events took place in the
house, certain events may have taken place in another
house. There are a number of elements for each of those
offenses. You must unanimously agree that all of the
elements of the offense have been proved to find Mr. Rios
guilty of some offense in a car or some offense in a house
or some offense in a different house. In other words, you
can't part of you agree that some things happened some
places and some other things happened other places. That
won't be enough to establish guilt beyond a reasonable
doubt. You must unanimously agree that all the elements of
the offense took place in one place or another or both.
And, so, that is the Commonwealth's obligation."
21

justice. Santos, 95 Mass. App. Ct. at 795 n.7. A specific

unanimity instruction is required where an "indictment alleges

in statutory terms a criminal offense occurring during a period

of several months and, at trial, there is evidence that the

defendant committed several such offenses within that period

. . . ." Commonwealth v. Sanchez, 423 Mass. 591, 598 (1996). A

specific unanimity instruction explains that "the jury 'must be

unanimous as to which specific act constitutes the offense

charged.'" Id. at 598-599, quoting Commonwealth v. Conefrey,

420 Mass. 508, 512 (1995).

Apart from the conviction of assault with intent to rape,

which, as we explained above, we vacate on separate grounds, the

specific unanimity instruction was required for only the

indictment alleging indecent assault and battery on a child

under the age of fourteen, which specifically alleged "hand on

child's vaginal area" on diverse dates. 17 Based on the evidence

17The specific unanimity instruction was not required for
the convictions on the two indictments that specifically alleged
"finger in child's anal opening" because the victim testified
that this conduct occurred only once. (The two convictions
based on a single act -- one for aggravated rape of a child, and
one for rape of a child by force -- were not duplicative, as
each crime contains an element that the other does not. See
Morey v. Commonwealth, 108 Mass. 433, 434 [1871].) As to the
convictions on the two indictments alleging "tongue in child's
anal opening[,]" the instruction was not required despite
testimony that the conduct occurred multiple times because the
victim did not describe particular incidents and instead
testified only to a pattern of conduct. See Commonwealth v.
Medina, 64 Mass. App. Ct. 708, 717 (2005) ("a specific unanimity
22

presented at trial, we discern no error. With respect to this

indictment, the jury heard evidence of conduct that could have

supported a conviction occurring in several different locations.

The judge properly instructed, "You must unanimously agree that

the Commonwealth has proved that [the defendant] committed the

offense on at least one occasion during the time frame alleged."

The subsequent instruction -- which apparently was made at the

joint request of the parties -- focused on the need for the jury

to unanimously agree that each offense occurred at a particular

location. This was correct. The jury did need to unanimously

agree on at least one location where the offense occurred. The

instruction was consistent with the first instruction on

unanimity and did nothing to negate that instruction.

c. Lesser included offenses. A lesser included offense

instruction should be given where "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. Donlan, 436 Mass. 329, 335 (2002),

quoting Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692

(1998).

The judge did not err in declining to instruct on

statutory rape as a lesser included offense of rape of a child

instruction is not required where the victim testifies to a
pattern of repetitive and abusive conduct by the defendant").
23

by force. The element that distinguishes the two crimes is the

use of force. Commonwealth v. Thayer, 418 Mass. 130, 132 (1994)

("[S]tatutory rape . . . differs from forcible rape because the

Commonwealth is not required to prove lack of consent, force, or

threat of bodily injury"). As the Commonwealth proceeded under

a theory of constructive force, it was required to prove "the

victim was afraid or that she submitted to the defendant because

his conduct intimidated her." Commonwealth v. Newcomb, 80 Mass.

App. Ct. 519, 521 (2011). Considering the age difference

between the defendant and the victim and the history of the

relationship, and particularly that the victim stopped one

episode of abuse by pulling her pants up and kicking in the

defendant's direction, and, further, that she initially denied

that she had been abused because, she testified, she was afraid,

there was no rational view of the evidence that would allow the

jury to conclude that the defendant penetrated the victim but

did not use fear or intimidation to do so. Moreover, because

the defendant testified and denied that he had even touched the

victim, "[h]e can hardly claim to be prejudiced by [the refusal

to give the] instruction . . . ." Thayer, 418 Mass. at 134.

Similarly, the judge did not err in declining to instruct on

indecent assault and battery on a child under the age of

fourteen on the greater offenses of rape of a child by force and

aggravated rape. Such an instruction was not required because
24

there was no "evidence that dispute[d] or put[] into question

the element of penetration." Donlan, 436 Mass. at 337. We

disagree with the defendant that the instruction was required

because evidence of penetration was unclear. The victim

testified to penetration. The defendant testified to never

inappropriately touching the victim. "[I]n ordinary

circumstances, [evidence to dispute the element of penetration]

cannot be the mere possibility that the jury might not credit a

portion of the Commonwealth's evidence, which of course they are

always free to do." Id.

4. Closing argument. Last, the defendant argues that the

prosecutor misstated facts in the closing argument. Having

reviewed the specific statements the defendant complains about

in his brief, which were not objected to, we believe that they

were nearly all the product of fair inferences based on the

evidence. See Commonwealth v. Cutty, 47 Mass. App. Ct. 671, 675

(1999) (party has "every right to make a closing argument based

upon and referring to [the] testimony and all fair inferences

which [can] be drawn therefrom"). See generally Mass. G. Evid.

§ 1113(b)(2) (2019). Assuming, without deciding, that it was

improper to argue that the defendant was trying to put "his

balls" in the victim's front private part based on the victim's

testimony that the defendant tried "to go to [her] front private

part" with his "balls" exposed, we are confident that this
25

statement did not create a substantial risk of a miscarriage of

justice given the judge's instructions concerning what is

evidence and in light of the fact that we vacate, on other

grounds, the only conviction that could have arisen from this

conduct.

Conclusion. The judgment on indictment one is vacated, the

verdict is set aside, and indictment one is to be dismissed.

The remaining judgments are affirmed.

So ordered.