Commonwealth v. Dwayne M. Cheatham.

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

25-P-117

COMMONWEALTH

vs.

DWAYNE M. CHEATHAM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2023, a grand jury indicted the defendant on three

counts of rape, pursuant to G. L. c. 265, § 22 (b). After a

jury trial, the defendant was convicted of one count of rape and

acquitted of the remaining counts. On appeal, the defendant

claims that his conviction was not supported by sufficient

evidence, and that the judge erred in denying his request for an

instruction on the lesser included offense of indecent assault

and battery on a person over age fourteen. See G. L. c. 265,

§ 13H. We affirm.

1. Sufficient evidence. The defendant claims that the

Commonwealth did not present evidence sufficient to establish
the elements of rape, and thus the judge should have granted his

motion for a required finding of not guilty. We disagree.

When analyzing whether the record evidence is sufficient to

support a conviction, an appellate court is not required to "ask

itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt." Commonwealth v.

Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting

Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).

Nor are we obligated to "reread the record from a [defendant]'s

perspective." Palmariello v. Superintendent of M.C.I. Norfolk,

873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989).

See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (2008).

Rather, the relevant "question is 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." Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

When evaluating sufficiency, the evidence must be reviewed

with specific reference to the substantive elements of the

offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.

at 677-678. To sustain the defendant's conviction for rape

under G. L. c. 265, § 22 (b), the Commonwealth must prove two

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elements: (1) the defendant penetrated the victim's genital,

anal, or other opening, and (2) the penetration occurred by

force or threat of bodily harm without the victim's consent.

See Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001). In

this appeal, the defendant challenges only the first element of

penetration, and essentially argues that the evidence was

insufficient because the victim's testimony was inconsistent and

not credible.1 The defendant also claims that there was no

physical evidence supporting the victim's testimony. Neither

contention has merit.

"The sworn testimony of the victim of a sexual assault,

including rape, is [sufficient] evidence of the facts asserted."

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

Here, the victim testified to facts that constituted each

element of the count of rape for which the defendant was

convicted. See Commonwealth v. Gonsalves, 23 Mass. App. Ct.

184, 185 (1986). According to the victim, the defendant "forced

[her] to turn around, and took his penis out and put it in [her]

-- while he was holding [her] hips," and that she told him, "No"

and "stop," but "he just kept going." Such testimony

1 In his brief, the defendant notes that he was only
convicted of one count of rape, and acquitted of the other two.
However, he expressly disclaims any argument related to the
verdicts being factually inconsistent.

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constitutes sufficient evidence of each element of the offense

of rape, including penetration, and justified the denial of the

defendant's motion for a required finding of not guilty. See

Gonzalez Santos, 100 Mass. App. Ct. at 3. See also Gonsalves,

23 Mass. App. Ct. at 185.

The defendant alleges that inconsistencies in the victim's

testimony support granting the required finding of not guilty.

We disagree, as inconsistencies in the victim's testimony "go to

[her] credibility and do not affect the sufficiency of the

evidence." Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).

Furthermore, and contrary to the defendant's claim, the

Commonwealth presented physical evidence of penetration

including the male deoxyribonucleic acid found on the victim's

vaginal swab from which the defendant could not be excluded.

Also, in the sexual assault nurse examiner's testimony, she

noted marks on the victim's knees and right inner thigh which

were consistent with the victim's testimony as to how the rape

occurred. The nurse also testified that there was redness below

the vaginal opening towards the back portion of the victim's

genitals, which further corroborated her account.2

2 The defendant also argues that the conviction may have
been a result of sympathy for the victim, rather than from an
assessment of the evidence. This argument, however, ignores our
standard of review. See Latimore, 378 Mass. at 677. In fact,
were we "to indulge this argument, we would have to view the

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2. Request for lesser included instruction. The defendant

also claims that the judge erred in denying his request for an

instruction on the lesser included offense of indecent assault

and battery on a person over age fourteen because there was

evidence that the distinguishing element between the offenses,

penetration, was sufficiently in dispute. We disagree.

Where the defendant objected to the judge's denial of a

request for instruction on a lesser included offense, we review

for prejudicial error. See Commonwealth v. Brown, 481 Mass. 77,

86 (2018). When a defendant requests an instruction on a lesser

included offense, the judge ordinarily must grant the request

when the evidence permits a finding on the lesser included

offense. See Commonwealth v. Woodward, 427 Mass. 659, 662-663

(1998). For evidence to permit a finding on the lesser included

offense, the evidence at trial must present "a rational basis

for acquitting the defendant of the crime charged and convicting

him of the lesser included offense" (quotation and citation

omitted). Commonwealth v. Donlan, 436 Mass. 329, 335 (2002).

However,

"even when evidence is introduced that would justify
conviction for a lesser included offense, the defendant is
not entitled to an instruction thereupon unless the proof
on the elements differentiating the two crimes is

evidence in the light least favorable to the Commonwealth,
which, of course, we cannot do." Commonwealth v. Arias, 78
Mass. App. Ct. 429, 435 (2010).

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sufficiently in dispute so that the jury may consistently
find the defendant innocent of the greater and guilty of
the lesser included offense" (quotation and citation
omitted).

Id.

The distinguishing element between rape and indecent

assault and battery of a person over age fourteen is

penetration. Donlan, 436 Mass. at 336. "[S]ome evidence that

disputes or puts into question the element of penetration. . . .

in ordinary circumstances cannot be the mere possibility that

the jury might not credit a portion of the Commonwealth's

evidence" (emphasis added). Id. at 337.

Here, the Commonwealth established the element of

penetration through the victim's testimony. She stated that the

defendant, without her consent, penetrated her vagina with his

penis on August 23, 2022. This was sufficient to establish the

element of penetration. See Gonzalez Santos, 100 Mass. App. Ct.

at 3. Importantly, the defendant did not challenge the victim's

testimony on this point. Rather, the defense's trial strategy

was to argue that no rape, battery, assault, or any other

criminal offense ever occurred, and the victim's testimony was

not to be believed.

Contrary to the defendant's claim, this case is not

materially distinguishable from Donlan, 436 Mass. at 335-337.

As in Donlan, here, the victim's testimony regarding penetration

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was not challenged on cross-examination. Id. at 336. Defense

counsel's cross-examination of the victim consisted of attacking

her credibility, including highlighting the numerous times the

victim invited the defendant to visit her apartment, and

highlighting the text and video messages between the victim and

the defendant. In addition, the defendant did not present his

own evidence to dispute the element of penetration for the rape,3

nor did defense counsel argue as such in closing.4

Rather, the defendant essentially claims that the mere

possibility that the jury may not credit a portion of the

Commonwealth's evidence, specifically the evidence relating to

the element of penetration, but credit the evidence on the other

3 The defendant claims that the judge forced him into an all
or nothing defense, while also arguing that he presented
evidence that put the specific element of penetration in
dispute. Putting aside the internally inconsistent nature of
this claim, we disagree with the suggestion that the judge
forced him into an all or nothing defense. The record reflects
that the defendant and his counsel chose this defense, evidenced
by counsel's cross-examination of the victim.

4 The defendant specifically claims that his counsel
challenged the element of penetration in his closing argument.
Upon a full review of the record, we disagree. The closing
argument clearly focused on the credibility of the victim:
"We're supposed to believe that she reached out to the guy who
raped her," "[it] [d]oesn't make any sense," "[a]pparently
that's where a violent attack happened," and "[it] doesn't fit
the narrative of somebody who came over twice and committed a
violent attack on both occasions." The closing argument did not
contain a single reference to penetration or its absence.

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elements of rape, entitles the defendant to an instruction on

the lesser included offense. The Supreme Judicial Court plainly

stated that this possibility alone is not enough to warrant such

an instruction. See Donlan, 436 Mass. at 337; Commonwealth v.

McCaffrey, 104 Mass. App. Ct. 642, 654 (2024). "If credited,

[the evidence in this case] supports only a conviction of rape,

and not of the lesser included offense of indecent assault and

battery." Donlan, supra at 336. Accordingly, the judge did not

err in declining to give the instruction.

Judgment affirmed.

By the Court (Meade,
Desmond & Wood, JJ.5),

Clerk

Entered: January 7, 2026.

5 The panelists are listed in order of seniority.

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