Commonwealth v. William Benitez.

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-695

COMMONWEALTH

vs.

WILLIAM BENITEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the Superior Court, the

defendant was convicted of one count of rape of a child under

twelve years old, aggravated by a five-year age difference

between the defendant and the victim.1 He argues on appeal that

the Commonwealth presented insufficient evidence to sustain his

conviction, that the trial judge committed various errors during

the trial, and that his trial attorney rendered ineffective

assistance of counsel. We affirm.

1 The judge allowed motions for directed findings of not
guilty on a second indictment of rape of a child, an indictment
of indecent assault and battery, and an indictment of
dissemination of matter harmful to a minor.
Background. The defendant and the victim's mother (mother)

married in 2011.2 In the summer of 2014, the mother occasionally

left the victim in the defendant's care when she was not home.

The victim testified that when the defendant cared for her while

the victim's mother was not home, he touched her "private part"

with "[h]is hand." The victim -- aged eleven at the time of

trial and six at the time of the underlying events -- stated

that the defendant touched "the inside" of her body part that

she used "to pee."

During cross-examination, the victim struggled to recall

details and could not remember how many times the defendant

touched her. Defense counsel asked if "any part of his body

[went] inside of [her] private parts," and the victim answered,

"No." During redirect examination, the Commonwealth asked the

victim, "You just said that the defendant never went inside your

body part, correct?" The victim responded, "Yes." The

Commonwealth then asked, "Where would he go with his hand?" The

victim answered, "In my private part."

In his finding, the judge explained that the victim's

testimony was "credible, consistent and reasonably clear and

detailed as to all material elements of the sexual assault she

described." The judge provided "[s]ome allowance" for the fact

2 The victim is not the defendant's biological child.

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that the victim "is a young girl with learning disabilities that

are evident, appearing in an unfamiliar courtroom environment,

and being asked questions about events occurring five years ago

when she was just [six] years old." Therefore, the judge

explained that "[o]ne would expect a certain amount of

imprecision and failed memory on collateral details, such as

dates and the like." The judge reasoned further "that the

limitations in the child's memory actually belie the suggestions

of coaching and fabrication at the heart of the defendant's

[d]efense."

Discussion. 1. Sufficiency of the evidence. In

determining the sufficiency of the evidence at trial, we ask

"whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt"

(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,

677 (1979). See Commonwealth v. Powell, 459 Mass. 572, 578-579

(2011), cert. denied, 565 U.S. 1262 (2012). "The inferences

that support a conviction 'need only be reasonable and possible;

[they] need not be necessary or inescapable.'" Commonwealth v.

Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth

v. Woods, 466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014).

"To prove the crime of rape of a child in violation G. L.

c. 265, § 23, the Commonwealth must prove beyond a reasonable

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doubt that the defendant engaged in (1) sexual intercourse or

unnatural sexual intercourse with (2) a child under sixteen

years of age." Commonwealth v. Lawton, 82 Mass. App. Ct. 528,

533 (2012). The act underlying this case concerns "unnatural

sexual intercourse," which involves penetration of one person's

bodily orifice, such as the vagina, by means of another person's

body part other than a penis, "such as . . . a finger."3

Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 87 (2021).

"Furthermore, 'penetration' does not require actual entry into

the vagina; . . . '[t]ouching . . . of the vulva or labia . . .

is intrusion enough.'" Id., quoting Commonwealth v. Donlan, 436

Mass. 329, 336 (2002).

Viewed in the light most favorable to the Commonwealth, the

victim's trial testimony was sufficient to sustain the

defendant's conviction. The victim testified that the defendant

touched her "private part" with "[h]is hand," an act that

constitutes penetration by means other than the penis. See

Seesangrit, 99 Mass. App. Ct. at 87.4 Where the Commonwealth's

case focuses on the victim's testimony, "extrinsic, or forensic

3 Because the defendant does not contest the age of the
victim, we analyze only the sufficiency of the evidence as to
whether the defendant engaged in unnatural sexual intercourse.

4 Although the defendant argues that one of the victim's
other answers contradicted this, we agree with the judge's
reading of the testimony that there was no necessary
contradiction.

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evidence, or expert or third-party witness testimony, is [not]

required to support a conviction of rape or sexual assault."

Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021).

Therefore, "the victim's testimony, as credited by the [judge]

and evidenced by [his finding], suffices to support the

defendant's conviction[]" because "[t]he sworn testimony of the

victim of a sexual assault, including rape, is evidence of the

facts asserted." Id.

The defendant's sufficiency argument relies on an attack on

the victim's credibility. However, in reviewing the sufficiency

of the evidence, we "do not weigh the credibility of the

witnesses," because "[w]e consider the evidence most favorable

to the Commonwealth." Commonwealth v. Johnson, 53 Mass. App.

Ct. 732, 733-734 (2002). Further, we cannot "substitute our

judgment for that of the judge on credibility questions."

Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012).

Therefore, we conclude that the evidence presented at trial was

sufficient to sustain the defendant's conviction.

2. Competency. The defendant contends that the trial

judge failed to "adequately vet" the victim for competency

before her testimony. Because the defendant did not challenge

the victim's competency at trial, we review for a substantial

risk of a miscarriage of justice. See Commonwealth v. McGann,

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484 Mass. 312, 322 (2020). We are not persuaded that such risk

is posed here.

"Any person of sufficient understanding, although a party,

may testify in any proceeding, civil or criminal." G. L.

c. 233, § 20. Witness competency is governed by a two-prong

test:

"(1) whether the witness has the general ability or
capacity to 'observe, remember, and give expression to that
which she ha[s] seen, heard, or experienced'; and (2)
whether she has 'understanding sufficient to comprehend the
difference between truth and falsehood, the wickedness of
the latter and the obligation and duty to tell the truth,
and, in a general way, belief that failure to perform the
obligation will result in punishment'" (citation omitted).

Commonwealth v. Thibeault, 77 Mass. App Ct. 419, 423-424 (2010).

In reviewing a trial judge's determination of the competency of

a child witness, "[i]t is seldom that the discretion of the

trial judge can be revised," because the printed record cannot

reproduce the child's appearance and manner, which are

characteristics central to the competency inquiry (citation

omitted). Id. at 424. "The determination of competency is

peculiarly in the province of the judge." Commonwealth v.

Brusgulis, 398 Mass. 325, 329 (1986), quoting Commonwealth v.

Widrick, 392 Mass. 884, 888 (1984).

Here, the defendant seizes on the fact that the victim

raised the wrong hand while taking the oath, arguing that the

victim's supposed failure to follow a basic instruction

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undermines her competency. However, the record suggests that

the clerk was speaking quickly as the victim asked the clerk to

repeat her instruction, and the judge asked the clerk to speak

slower. The defense also raises other inconsistencies in the

victim's testimony, discussed supra, but those inconsistencies

are not relevant to the competency inquiry where the judge found

the victim's testimony "compelling and entirely believable" and

"not impeached in any meaningful way."5

3. Testimony about the victim's learning disability. The

defendant contends that the mother's testimony about the

victim's "unidentified" learning disability was error. We

disagree.

"A defendant cannot challenge the admission of such

testimony on appeal when he was the one to elicit it at trial."

5 In his reply brief, the defendant asserts that
Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213, 217 (1997),
imposes an independent duty on the trial judge to conduct a
competency hearing, sua sponte, when testimonial inconsistencies
raise doubts about the competency of a given witness. "We need
not pass on grounds for reversal raised for the first time in a
reply brief." Commonwealth v. McGowan, 400 Mass. 385, 390 n.4
(1987). Nevertheless, the defendant's assertion misrepresents
the language of Lamontagne, supra, which merely permits rather
than requires a judge to conduct a competency inquiry sua
sponte. See id. ("Although as matter of law a trial judge is
not mandated to conduct a voir dire on competency in the absence
of an objection, there is nothing to prevent him from doing so
sua sponte as matter of discretion where doubt as to competency
exists upon seeing and hearing the witness testify").

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Commonwealth v. Aspen, 53 Mass. App. Ct. 259, 265 (2001). Once

the defendant elicits a certain inference on cross-examination,

"the Commonwealth [is] entitled to rebut the inference . . . by

briefly eliciting other details" about it on recross-

examination. Id. at 266.

Here, on cross-examination, the defendant asked the mother

about the victim's "difficulties" in school, eliciting testimony

from the mother that the victim had repeated the first grade.

On redirect examination, the Commonwealth asked the mother about

the "issues" the victim had in school, eliciting testimony from

the mother that the victim had a "series of learning

disabilities" that had "never been identified." Because the

defense introduced the testimony, the Commonwealth was entitled

to elicit other details about the victim's issues in school.

See Aspen, 53 Mass. App. Ct. at 266.

4. The sexual assault nurse examiner (SANE) testimony.

The defendant contends that the prosecutor improperly elicited

opinion testimony from the SANE in violation of a pretrial

ruling precluding such testimony, which created a substantial

risk of a miscarriage of justice. This claim is unavailing.

In a jury-waived trial, "[w]e presume . . . judges will

have correctly instructed [themselves] as to the manner in which

evidence was to be considered in [their] role as factfinder"

8
(quotation and citation omitted). Commonwealth v. Garvey, 99

Mass. App. Ct. 139, 143 (2021).

Before trial, the judge allowed the defendant's motion in

limine to prohibit the SANE, who examined the victim in 2017,

from testifying to her opinion that a normal result does not

foreclose the possibility that a sexual assault occurred.

Despite the judge's ruling, the witness twice testified to her

opinion during direct examination. The defense failed to object

the first time she gave her opinion. In the second instance,

the defense objected, and the judge sustained the objection.6

Where the defendant objected, we review for prejudicial

error and inquire "whether there is a reasonable possibility

that the error might have contributed" to the judge's finding

(citation omitted). Commonwealth v. Henley, 488 Mass. 95, 127

(2021).

The defendant fails to demonstrate any prejudice from the

SANE's testimony. The judge did not refer to her testimony in

rendering his finding, where he credited the victim's testimony

and found it "compelling" and "consistent." Because nothing in

6 On cross-examination, the defendant asked the witness if
she agreed the examination revealed a normal result. Because
the defendant elicited the improper testimony, we do not
consider that instance. Commonwealth v. Elder, 389 Mass. 743,
754 (1983) ("Since the defendant elicited the statement on
cross-examination, he cannot now complain of its prejudicial
effect").

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the record shows that the judge relied on the improper

testimony, we conclude the admission of the testimony did not

prejudice the defendant. See Commonwealth v. Healey, 452 Mass.

510, 514 (2008) (no prejudice in admission of improper evidence

where trial judge assumed to correctly instruct himself on law).

5. Ineffective assistance of counsel. The defendant

contends that trial counsel was ineffective because of his

failure to challenge the victim's competency and his failure to

"object to, or seek to exploit in any way," the mother's

testimony about the victim's learning disabilities. We are not

persuaded.

To sustain a claim of ineffective assistance of counsel,

the defendant must show that "behavior of counsel falling

measurably below that which might be expected from an ordinary

fallible lawyer . . . likely deprived the defendant of an

otherwise available, substantial ground of [defense]."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[T]he

preferred method for raising a claim of ineffective assistance

of counsel is through a motion for a new trial." Commonwealth

v. Zinser, 446 Mass. 807, 810 (2006). "[A]n ineffective

assistance of counsel challenge made on the trial record alone

is the weakest form of such a challenge because it is bereft of

any explanation by trial counsel for his actions and suggestive

of strategy contrived by a defendant viewing the case with

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hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5

(2002). Therefore, a "claim of ineffective assistance may be

resolved on direct appeal of the defendant's conviction [only]

when the factual basis of the claim appears indisputably on the

trial record." Zinser, supra at 811. "A tactical decision by

trial counsel is considered ineffective assistance only if such

a decision was manifestly unreasonable when made." Commonwealth

v. Diaz, 448 Mass. 286, 288 (2007).

The defendant raises his ineffective assistance claim based

solely on the trial record and without any explanation by trial

counsel for his actions and trial strategy. Here, on the record

before us, we conclude that the defendant has failed to

establish that trial counsel's tactical decisions were

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manifestly unreasonable and that none of the claimed failures by

counsel was likely to have influenced the judge's decision.7

Judgment affirmed.

By the Court (Rubin, Neyman &
Tan, JJ.8),

Clerk

Entered: July 28, 2025.

7 We note that the judge entered directed findings on three
of the four indictments, making it "difficult to find that the
admission of the evidence caused prejudice." Commonwealth v.
Sosnowski, 43 Mass. App. Ct. 367, 372 (1997).

8 The panelists are listed in order of seniority.

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