MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of rape of a child under the age of sixteen, G. L. c. 265, § 23.
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On appeal, the defendant claims that the judge erred when he instructed the jury that they could consider, as a lesser included offense, the crime of assault on a child with intent to rape, G. L. c. 265, § 24B. The defendant also argues that the judge erred in admitting hearsay testimony. We affirm.
Background. We summarize the facts that the jury could have found. The defendant, age eighteen, invited a group of teenaged girls to join him and his friends for a ride in the defendants car. The three girls, who were between fourteen and fifteen years old, agreed. One of the defendants friends brought a bottle of vodka.
The victim, aged fourteen, drank several “shots” of vodka. After a brief drive to a convenience store, the group returned to the defendants home where they continued to consume alcohol. While others told the victim she should stop drinking, the defendant encouraged her to continue. The defendant also told the victims friend that he wanted to “fuck” the victim that night.
At some point, when the defendant and the victim were alone together, the victim saw the defendant lower his pants. The victim next remembered that she was lying on her back with the defendant on top of her, inserting his penis in her vagina. Another witness saw the defendant “hovering over [the victim]” as she lay on her back with her legs open. When one of the girls told the victim they should leave, the defendant responded, “Wait. Let me finish.”
A sample of deoxyribonucleic acid (DNA) recovered from semen on the victims underwear matched the defendants DNA profile. The defendant did not testify at trial. Defense counsel admitted to the jury that there had been some “interaction” between the victim and the defendant. He suggested, however, that the defendant had only “masturbated over her as she lay on the floor.”
Discussion. 1. Lesser included offense instruction. When there is a timely objection to a jury instruction, “[we] review the instruction to determine whether there was error and, if so, whether it was reversible error.” Commonwealth v. Farley, 443 Mass. 740, 745 (2005). We assess “[t]he adequacy of [the] instruction[ ] ․ in light of [its] over-all impact on [a reasonable] jury” (citation omitted). Id.
Ordinarily, “[a] crime is a lesser-included offense of another crime if each of its elements is also an element of the other crime.” Commonwealth v. Roderiques, 462 Mass. 415, 421 (2012), quoting Commonwealth v. Ogden O., 448 Mass. 798, 808 (2007). See also Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Rape of a child has two elements: (1) sexual intercourse, (2) with a child under the age of sixteen. G. L. c. 265, § 23. Assault on a child with intent to rape also has two elements: (1) an assault on a child under the age of sixteen, (2) with an intent to rape. G. L. c. 265, § 24B. The defendant argues that assault on a child with intent to rape is not a lesser included offense of rape of a child because it involves the additional element of a specific intent to rape.
However, in some circumstances, “the purposes of our lesser included offense jurisprudence [may] not [be] served by a strict application” of this “elements-based approach.” Commonwealth v. Porro, 458 Mass. 526, 532-533 (2010), and cited cases. The ultimate inquiry is whether the “lesser included offense is one which is necessarily accomplished on commission of the greater crime” (citation omitted). Id. at 531. Based on this inquiry, we have said that “[t]he crime of assault with intent to rape is a lesser included offense of rape” (citation omitted). Commonwealth v. Lahens, 100 Mass. App. Ct. 310, 314 (2021). This is because “[a]ssault with intent to commit a rape on an underaged child is attempted statutory rape ․ [and a] charge of a completed crime logically includes a charge of an attempt to commit it” (citations omitted). Commonwealth v. Capone, 39 Mass. App. Ct. 606, 609 (1996). Thus, there was no error in the lesser included offense instruction.
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In any event, the defendant suffered no prejudice from the instruction because he was convicted of the greater offense of statutory rape. While a question from the jury during deliberations suggested some confusion about how to approach the lesser included offense,
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the judge properly reinstructed the jury that, if they found that the Commonwealth had proved the elements of statutory rape beyond a reasonable doubt, they did not need to consider the lesser included offense. Thereafter, the jury returned a unanimous verdict of guilty of statutory rape. Since the defendant was convicted of the greater offense, not the lesser included offense, the jury instruction on the lesser included offense could not have prejudiced him. See Commonwealth v. Dorazio, 472 Mass. 535, 543 (2015) (no prejudice where claimed error related to charge of which defendant acquitted).
2. Hearsay. The defendant claims the judge erred by admitting hearsay statements by the defendants friend that the defendant was given a condom on the night of the rape. Because the defendant objected at trial, we review the judges decision to determine if there was error and, if so, whether the error was prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. See Mass. G. Evid. § 801(c) (2021). If a statement is offered to show that the statement was made, and not to prove the facts asserted in it, it is not hearsay. See Commonwealth v. Kozubal, 488 Mass. 575, 584 (2021), cert. denied, 142 S. Ct. 2723 (2022).
Here, following an objection and sidebar conference, the judge permitted the following exchange:
Prosecutor: Do you recall a conversation between Tyler and -- excuse me, between Evan and [the defendant] where Evan asked him about a condom?
Witness: Yes.
Prosecutor: Okay. Please describe that conversation.
Witness: Evan was telling [the defendant] how he let [the defendant] use a condom out of his wallet so he could have sex with [the victim], and they were making sure that [the defendant] had thrown it away upstairs in the trash.
Prosecutor: And what happened next?
Witness: [The defendant] went upstairs and checked, and then I think that was just about it for that part.
Prosecutor: Okay. And what happened next.
Witness: They were talking about how they really didnt believe that they had sex, and then there was a joke made where [the defendant] sniffed his finger and said, “Yes, I definitely had sex with her.”
The Commonwealth explained to the judge that the statement was not being offered to prove the truth of the assertion -- that the defendant had been given a condom -- but rather to demonstrate that the statement caused the defendant to go upstairs to see if the condom had been thrown in the trash. Such an out-of-court statement offered to show its effect on the defendant is not hearsay. See Mass. G. Evid. § 801 note, at 285-286 (2021). See also Commonwealth v. Sullivan, 410 Mass. 521, 526 (1991) (statement not hearsay when offered to demonstrate consciousness of guilt).
For the first time on appeal, the defendant argues that a second statement by the witness -- “[t]hey were talking about how [the defendant] had had sex with [the victim]” -- was inadmissible hearsay. Because there was no objection at trial, we review the admission of this statement for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The content of the statement was not clear. If the testimony referred to the defendants own statements, they were admissible as statements of a party-opponent. See Mass. G. Evid. § 801(d) (2) (A) (2021). Even if the testimony referred to an out-of-court statement by the defendants friend Evan, we see no substantial risk of a miscarriage of justice, because the hearsay statement was cumulative of the defendants admission that he had sex with the victim, which was already properly before the jury.
Judgment affirmed.
FOOTNOTES
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. Indictments were returned charging the defendant with rape of a child under sixteen, G. L. c. 265, § 23, and rape of a child with force. G. L. c. 265, § 22A. The Commonwealth nol prossed the latter charge and proceeded only on the indictment alleging rape of a child.
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. There was a factual basis for the lesser included offense instruction because, based on the evidence and arguments presented, the jury could have concluded that the defendant assaulted the victim with the intent to have sexual intercourse with her, but did not penetrate her.
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. The jury presented the following question:“We all agree that the assault charge applies, but were hung on the rape charge. Do we have that option, to leave it that way, or does it mean that the charge automatically defaults to assault? Because we do agree on that, but not all who vote for rape want to lower the charge.”