Commonwealth v. Suero (Lawyers Weekly No. 10-090-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11185 COMMONWEALTH vs. MAXIMO SUERO. Essex. January 10, 2013. ‑ May 17, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Rape. Indecent Assault and Battery. Practice, Criminal, Lesser included offense, Duplicative convictions, Double jeopardy, Instructions to jury. Constitutional Law, Double jeopardy. Indictments found and returned in the Superior Court Department on February 22, 2006. The cases were tried before John T. Lu, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Emily Cardy, Committee for Public Counsel Services, for the defendant. Ronald DeRosa, Assistant District Attorney (Michael Patten, Assistant District Attorney, with him) for the Commonwealth. IRELAND, C.J. We granted the defendant’s application for further appellate review limited to whether the defendant’s conviction of indecent assault and battery on a child under the age of fourteen years, in violation of G. L. c. 265, § 13B, was duplicative of his conviction of rape of a child under the age of sixteen years, in violation of G. L. c. 265, § 23 (statutory rape).[1] In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court concluded that the charges were not duplicative, and affirmed the convictions. Commonwealth v. Suero, 81 Mass. App. Ct. 1108 (2012). Because we conclude that a judge must determine whether a defendant’s conduct constitutes separate acts that are sufficiently distinct to support convictions of indecent assault and battery on a child under fourteen and statutory rape, and that here, the defendant’s actions underlying the two convictions were not separate and distinct, we vacate the defendant’s conviction of indecent assault and battery on a child under fourteen and affirm his conviction of rape of a child under sixteen. Background facts. We present the essential facts the jury could have found. In 2005, the defendant moved in with his girl friend and her four children, two boys and two girls. The victim, who was nine years old, shared a bed with her sister in one bedroom. The two boys also shared a bedroom down the hall from the girls’ bedroom. On December 28, 2005, the victim watched television until 8 P.M., her usual bedtime. The defendant had just returned home. The victim, wearing shorts and a tank top, joined her sister, who was already in bed. While she slept, the […]