Opinion
11-P-1295
04-10-2012
COMMONWEALTH v. VICTOR QUADROS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions, the defendant argues error in the denial of his motion to dismiss; he claims his convictions for indecent assault and battery (two counts) and assault and battery (two counts) were erroneously based upon conduct for which he was not indicted by the grand jury in violation of art. 12 of the Massachusetts Declaration of Rights. We affirm.
The defendant was also charged with one count of assault with intent to rape for which he was acquitted.
The defendant's reliance upon Commonwealth v. Barbosa, 421 Mass. 547 (1995), is misplaced. Moreover, Barbosa is distinguished from the instant case on its facts. In Barbosa, there was evidence of two separate drug transactions occurring on the same day with different purchasers, but only one distribution indictment. Id. at 550. Here, the defendant was involved in a single criminal episode against a single victim that involved two definable segments, separated by an unsuccessful attempt by the victim to escape, each segment including easily distinguishable acts of simple and indecent battery. We discern no risk that the defendant was convicted of an offense for which he was not indicted. The fact that the evidence might have supported more indictments than were returned does not mean that he was exposed, as was the defendant in Barbosa, to conviction for conduct that might not have been the basis for indictment. Rather, in each of the two segments, the defendant touched the victim indecently on several parts of her body but all were but a part of a single course of conduct. See Commonwealth v. Keevan, 400 Mass. 557, 565-566 (1987), and Commonwealth v. Crowder, 49 Mass. App. Ct. 720, 721-722 (2000). Thus, the defendant's motion to dismiss was properly denied.
Even if the issue was properly before us, the convictions for assault and battery were not duplicative as lesser included offenses of indecent assault and battery. The judge made clear in his instructions, in accordance with the evidence, that the conduct the jury may consider were separate and apart from any form of contact that could involve indecent touching, e.g., the victim being grabbed from behind and being thrown to the floor.
Moreover, as to each indictment, the judge gave specific unanimity instructions.
--------
Judgments affirmed.
By the Court (Cypher, Smith & Fecteau, JJ.),