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17-P-900 Appeals Court

COMMONWEALTH vs. REINALDO PRADO.

No. 17-P-900.

Middlesex. May 4, 2018. - October 17, 2018.

Present: Agnes, Neyman, & Sacks, JJ.

Rape. Robbery. Practice, Criminal, Assistance of counsel. 

Words, "Unnatural sexual intercourse."

Indictments found and returned in the Superior Court 

Department on March 31, 2009.

Following review by this court, 86 Mass. App. Ct. 1103 

(2014), a motion for a new trial, filed on August 8, 2016, was 

heard by Kathe M. Tuttman, J.

Jeffrey G. Harris for the defendant.

Emily K. Walsh, Assistant District Attorney, for the 

Commonwealth.

NEYMAN, J. In this case, we are asked to determine whether 

the act of forcing a person to penetrate her own genital opening 

constitutes rape within the meaning of G. L. c. 265, § 22. We 

hold that it does, and thus affirm the order denying the 

defendant's motion for new trial.
2

Background. 1. Procedural history. Following a jury 

trial in the Superior Court, the defendant, Reinaldo Prado, was 

convicted of one count of aggravated rape, see G. L. c. 265, 

§ 22 (a), three counts of armed robbery, see G. L. c. 265, § 17, 

and three counts of witness intimidation, see G. L. c. 268, 

§ 13B. Represented by the same attorney he had at trial, the 

defendant appealed. A panel of this court affirmed the 

judgments in a decision issued pursuant to our rule 1:28. See 

Commonwealth v. Prado, 86 Mass. App. Ct. 1103 (2014).

More than two years later, the defendant, represented by 

new counsel, filed a motion for new trial, claiming that his

trial counsel was ineffective for (a) failing to argue that 

G. L. c. 265, § 22, does not contemplate rape by compelled selfpenetration; and (b) failing to challenge the sufficiency of the 

evidence of armed robbery where the Commonwealth proved only 

that the defendant used a BB gun and not a firearm as alleged in 

the indictment. Following a hearing, the judge1 issued a written 

memorandum of decision and order denying the motion for new 

trial. The defendant now appeals therefrom.

2. Facts from trial. The charges against the defendant 

arose from two robberies and sexual attacks that occurred in 

Burlington and Tewksbury on January 24 and 25, 2009. In both 

 

1 The motion judge also was the trial judge.
3

instances, the defendant responded to advertisements for adult 

services on the Internet Web site "Craigslist," arranged to meet 

the victims at a hotel, robbed them at gunpoint, and threatened 

to find or to kill them if they contacted the police.2 With 

respect to the January 24 incident, the defendant was convicted 

of aggravated rape for forcing the victim to put her fingers

into her vagina. Specifically, during the robbery he pulled out 

a black gun, backed the victim into a computer chair in the 

hotel room, touched her breast, and emptied the contents of her 

purse onto the bed. After the victim grabbed her engagement

ring from among those items, the defendant directed her at 

gunpoint to insert her fingers into her vagina. The victim did 

so, against her will.3

 

2 With respect to the January 25, 2009, attack, the 

defendant bound the victims' hands together with zip ties; stole 

from them $340 cash, two passports, two cellular telephones, 

bank cards, drivers' licenses, and two computers; ordered one 

victim to perform oral sex on the other; and warned them that he 

had their identification and would kill them if they contacted

the police. As to this incident, the jury convicted the 

defendant of armed robbery and intimidation of a witness, and 

acquitted him of aggravated rape and indecent assault and 

battery.

3 The defendant was also charged with and prosecuted for 

another count of rape predicated on evidence that he forced his 

finger into the victim's vagina. As reflected by the specific 

verdict slips, the jury acquitted the defendant on that count, 

but convicted him of rape for forcing the victim to penetrate 

her vagina with her own fingers.
4

The evidence at trial was corroborated through, among other 

things, (a) a surveillance video recording; (b) the defendant's 

statements to the police; (c) the retrieval of several items 

from the defendant and from his truck, including a BB gun, a box 

of commercial grade electrical zip ties consistent with those 

used to restrain two of the victims, a cellular telephone (cell 

phone) belonging to one of the victims, handwritten telephone 

numbers for other Craigslist advertisements offering adult 

services, and papers bearing the telephone number of one of the 

victims and the Burlington hotel address; and (d) the retrieval 

of another cell phone, laptop computers, laptop computer 

carrying cases, and passports, all belonging to the victims of 

the two incidents, located during a search of the defendant's 

apartment pursuant to a search warrant.

3. Legal standards. A motion for new trial may be granted 

only if it appears that justice may not have been done. Mass.

R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). Such 

motions are committed to the sound discretion of the judge, 

Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are 

granted only in extraordinary circumstances," Commonwealth v. 

Comita, 441 Mass. 86, 93 (2004). "Reversal for abuse of 

discretion is particularly rare where the judge acting on the 

motion was also the trial judge." Commonwealth v. Schand, 420 

Mass. 783, 787 (1995).
5

Where, as here, a motion for a new trial is based on 

ineffective assistance of counsel, the defendant must show that 

the behavior of counsel fell measurably below that of an 

ordinary, fallible lawyer and that such failing "likely deprived 

the defendant of an otherwise available, substantial ground of 

defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 

See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (second 

prong of ineffective assistance test met if there is substantial 

risk of miscarriage of justice arising from counsel's failure).

Discussion. 1. Aggravated rape. The defendant claims 

that G. L. c. 265, § 22, does not criminalize compelled selfpenetration. He contends that because there was no physical 

contact between the defendant and the victim, the evidence 

failed to satisfy the plain language of the statute requiring 

"unnatural sexual intercourse." He further argues that there is 

no Massachusetts precedent allowing a conviction of rape upon 

evidence of compelled self-penetration, that § 22 is ambiguous 

and thus must be construed against the Commonwealth under the 

rule of lenity, and that § 22 is unconstitutionally vague.

The Commonwealth responds that the defendant's arguments 

ignore established case law broadly interpreting nonconsensual 

unnatural sexual intercourse to include myriad sexual acts 

forced on unwilling victims. See Commonwealth v. Gallant, 373 

Mass. 577, 590 (1977). We conclude that Massachusetts law 
6

establishes that unnatural sexual intercourse is broad enough to 

include compelled penetration of a victim's genital opening.

Our analysis begins with the plain language of the statute 

and, in particular, the words "unnatural sexual intercourse." 

"We interpret statutory language to give 'effect consistent with 

its plain meaning and in light of the aim of the Legislature'

unless to do so would achieve an 'absurd' or 'illogical'

result." Commonwealth v. Scott, 464 Mass. 355, 358 (2013), 

quoting Sullivan v. Brookline, 435 Mass. 353, 360 (2001). 

"Words and phrases shall be construed according to the common 

and approved usage of the language." Scott, supra, quoting 

Opinion of the Justices, 313 Mass. 779, 781-782 (1943). 

"However, the construction of a word or phrase may vary from its 

plain meaning when such a meaning would 'involve a construction 

inconsistent with the manifest intent of the law-making body or 

repugnant to the context of the same statute'" (citation 

omitted). Scott, supra.

Prior to 1974, G. L. c. 265, § 22, provided: "Whoever 

ravishes and carnally knows a female by force and against her 

will shall be punished." By St. 1974, c. 474, § 1 (1974 

amendment), entitled "An Act redefining the elements 

constituting the crime of rape and related offenses," the 

Legislature amended § 22. The new language provided, in 

relevant part, "Whoever has . . . unnatural sexual intercourse 
7

with a person, and compels such person to submit by force and 

against his will," shall be guilty of rape.4

In Gallant, 373 Mass. at 583-584, the Supreme Judicial 

Court analyzed the meaning and the impact of the 1974 amendment, 

and held that it extended the protections of the Massachusetts

rape statutes. The 1974 amendment effected a significant change 

in the law beyond abolishing artificial distinctions based on 

gender and replacing the archaic terminology of "ravishing" and 

"carnal knowledge" with the more contemporary "sexual 

intercourse." Id. at 584. Indeed, the 1974 amendment

"necessarily rework[ed] the common law definition of rape," and 

"must be viewed as part of a comprehensive attempt to redefine 

the legal elements of rape." Id. at 583, 584. Under the 

amended law, "the definition of 'unnatural sexual intercourse' 

must be taken to include oral and anal intercourse, including 

fellatio, cunnilingus, and other intrusions of a part of a 

person's body or other object into the genital or anal opening 

of another person's body." Id. at 584. Moreover, the court 

 

4 By St. 1980, c. 459, § 6, entitled "An Act providing 

graduated penalties and victim compensation for the crime of 

rape and related offenses," the Legislature further amended 

G. L. c. 265, § 22. Among other things, this amendment created 

subsections "(a)" (delineating elements and punishment for 

aggravated rape) and "(b)" (delineating elements and punishment 

for nonaggravated rape), provided that rape committed "during 

the commission" of armed robbery or other enumerated crimes 

constituted aggravated rape, and provided enhanced penalties for 

rape committed with aggravating circumstances.
8

specified that the scope of the term "unnatural sexual 

intercourse" is "broad," and that "the Legislature necessarily 

intended to treat modes of sexual connection other than common 

law rape as equally serious invasions of personal integrity." 

Id. at 584-585, 590. Consistent with the tenets of Gallant, 

subsequent case law recognized various modes and means of rape. 

See, e.g., Commonwealth v. Nuby, 32 Mass. App. Ct. 360, 362 

(1992); Commonwealth v. Guy, 24 Mass. App. Ct. 783, 786-787

(1987).

We turn to the conduct at issue in the present case. The 

defendant, while brandishing a gun during an armed robbery, 

forced the victim, against her will, to penetrate her vagina 

with her fingers. We conclude that such conduct constitutes a 

"mode[] of sexual connection" that embodies an "equally serious 

invasion[] of personal integrity" as common-law rape. Gallant, 

supra at 585. As the judge noted in her order denying the 

motion for new trial, the "gravamen of the [rape] charge, as set 

forth in the statute, is sexual penetration by force and against 

the [victim's] will or by threat of bodily injury." See

Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001) ("Sexual 

intercourse is defined as penetration of the victim, regardless 

of degree"); Commonwealth v. Sherry, 386 Mass. 682, 687 (1982) 

("The essence of the crime of rape, whether aggravated or

unaggravated, is sexual intercourse with another compelled by 
9

force and against the victim's will or compelled by threat of 

bodily injury"). That is what occurred here.

The defendant counters that the definition of unnatural 

sexual intercourse does not include the conduct at issue here, 

because "[t]here was no physical contact." We disagree. First, 

there was physical contact here -- offensive, intrusive, and 

forced physical contact -- in the form of the victim's fingers 

inserted into her vagina by command of the armed defendant, 

backed by the threat of deadly force.

Second, to the extent that the defendant contends that 

there was no physical contact "by the defendant," the argument 

is still unavailing. Pursuant to G. L. c. 265, § 22 (a), "there 

is no requirement that the sexual contact involve penetration of 

the victim by the perpetrator." Guy, 24 Mass. App. Ct. at 786. 

Rather, our precedent recognizes the myriad ways by which rape 

is perpetrated, even without physical contact by the defendant. 

See, e.g., Nuby, 32 Mass. App. Ct. at 362 (defendant guilty of 

forcible rape of child for compelling girl friend's son to 

penetrate her vagina with his tongue and fingers); Guy, supra at 

784-787 (defendants guilty of rape for forcing victim to perform 

cunnilingus on two consenting females). See also State v. 

Thomas, 619 S.W.2d 513, 513 (Tenn. 1981) (defendant guilty of 

rape where he forced victim at gunpoint to perform oral sex on 

her husband). The common thread in these cases is some form of 
10

forced penetration compelled by the defendant, and not a literal 

touching by the defendant. Cf. Commonwealth v. Davidson, 68 

Mass. App. Ct. 72, 74 (2007) ("our cases do not require that the 

defendant himself perform the touching" to be convicted of 

indecent assault and battery).

Third, and finally, we disagree with the defendant's 

argument that there was no physical contact within the meaning 

of Gallant because there was no "intrusion[] of a part of a 

person's body or other object into the genital or anal opening 

of another person's body." Gallant, 373 Mass. at 584.5 The 

facts of this case epitomize what § 22 (a) prohibits: an 

intrusion into another's (i.e., the victim's) genital opening, 

by an object -- the victim's own fingers -- committed through 

the force of the defendant. See Lopez, 433 Mass. at 726-727

("Sexual intercourse is defined as penetration of the victim, 

regardless of degree"); Commonwealth v. Cifizzari, 397 Mass. 

560, 562, 576-577 (1986) (defendant's use of mop handle to 

penetrate victim constitutes rape within meaning of statute). 

See also People v. Scott, 271 Ill. App. 3d 307, 313 (1994) 

(victim's finger is object within meaning of Illinois aggravated 

 

5 Consistent with the language in Gallant, the judge here 

instructed the jury, in relevant part, that "[u]nnatural sexual 

intercourse includes oral and anal intercourse including 

[fellatio] and cunnilingus and other intrusions of a part of a 

person's body or other object into the genital or anal opening 

of another's body."
11

criminal sexual assault statute); Kirby v. State, 625 So. 2d 51, 

55 (Fla. Dist. Ct. App. 1993) (where defendant forced victim to 

insert her fingers into her vagina, court held that finger is 

"object" within context of Florida sexual battery statute). 

That the defendant here chose to penetrate the victim with her 

fingers does not render the act a lesser crime. To the 

contrary, Gallant instructs that in view of the innumerable ways 

in which rape may be perpetrated, courts should not create 

artificial limits on the meaning of unnatural sexual 

intercourse. See id. at 590 ("[i]t is probable that the 

Legislature deemed fruitless any attempt to delineate the full 

variety of coercive sexual intrusions it wished to include in 

the overarching term 'unnatural sexual intercourse'"). See also 

Scott, supra ("If [the defendant] had grabbed [the victim's]

hand and physically placed it in her vagina, we would not 

entertain any argument that intrusion had not occurred because 

her hand was not an object. The only difference between the 

hypothetical and the evidence here is the manner in which the 

assailant intruded the object upon the victim"). We decline to 

do so here, where "[i]t is difficult to imagine conduct more 

violative of social and behavioral expectations, or more 

disruptive of psychic integrity." Gallant, supra at 589-590. 

See Commonwealth v. Chretien, 383 Mass. 123, 131 (1981), quoting 

Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 648-649 (1978)
12

(construction of statute "should advance rather than defeat the 

purpose of the statute").

We likewise reject the defendant's arguments that G. L. 

c. 265, § 22 (a), is unconstitutionally vague, and that the rule 

of lenity mandates a different result. The defendant had 

sufficient notice that his actions constituted criminal 

felonious conduct as delineated in Gallant, 373 Mass. at 584-587 

(articulating meaning of unnatural sexual intercourse and 

rejecting claim that child rape statute is unconstitutionally 

vague). See Robinson v. Berman, 594 F.2d 1, 2 (1st Cir. 1979) 

("A statute whose terms have a commonly understood meaning or 

have been clarified by judicial explanation or by application to 

particular conduct is not unconstitutionally vague"). 

Furthermore, the defendant was on notice that the act of 

compelling a person to "play with herself" constitutes indecent 

assault and battery. Commonwealth v. Portonova, 69 Mass. App. 

Ct. 905, 905 (2007). The rulings in Gallant, 373 Mass. at 584-

587, and Portonova, supra at 905-906, negate the defendant's 

claim that the rape statute is unconstitutionally vague. "The 

essence of the fair warning requirement embodied in the due 

process clause is that a person should not be punished for an 

act he could not know was criminal." Robinson, supra at 3. A 

person who commits an act while on notice that it violates one 

statute "ha[s] no cause to complain that he had no notice his 
13

conduct violated another statute," even where the maximum 

penalty under that other statute is more severe. Id., citing 

Gallant, supra at 586. Although the maximum penalty for rape 

exceeds that for indecent assault and battery, see G. L. c. 265, 

§§ 13H, 22, "an argument premised on the unconstitutionality of 

a statute for vagueness does not address the issue of differing 

potential punishments. Unless prosecutorial abuse of discretion 

in charging [a defendant] under the harsher statute is alleged 

. . . we see no due process violation." Robinson, supra. See 

Gallant, supra at 586 n.11.

Moreover, the defendant was also on notice that the 

distinction between the crimes of rape and indecent assault and 

battery is the element of penetration. See Commonwealth v. 

Donlan, 436 Mass. 329, 335-336 (2002) ("Indecent assault and 

battery is a lesser included offense of rape of a child by 

force. . . . The difference between the two offenses is the 

element of penetration"); Commonwealth v. Walker, 426 Mass. 301, 

304 (1997) (elements of rape and indecent assault and battery 

are same "except for the aggravating factor of penetration in 

the rape charge that distinguishes the greater offense from the 

lesser offense"). Where the evidence in the present case 

involved the additional element of penetration, and where the 

defendant was on notice of the rulings in Gallant and Portonova, 

supra, he had sufficient notice that his conduct constituted 
14

rape and derives no benefit from the rule of lenity. See 

Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 787 (1989) 

(evidence of penetration necessary to prove acts of rape "in 

order to differentiate those acts from other prohibited sexual 

touchings"). In addition, a holding that an indecent assault 

and battery, aggravated by penetration, constitutes the same 

offense as a forced touching without penetration would create an 

illogical and absurd result. See Scott, 464 Mass. at 358. 

Accordingly, the statute and Massachusetts common law provide

the defendant clear warning as to proscribed activities. See 

Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 305 (1999) 

("Given that the defendant's conduct fell squarely within the 

statute, counsel lacked a cogent argument that the statute was 

unconstitutionally vague as applied to the defendant").

In sum, the defendant's act of forcibly penetrating the 

victim's vagina with her own fingers fell within the scope of 

unnatural sexual intercourse under G. L. c. 265, § 22. It 

follows, therefore, that counsel was not ineffective. See 

Saferian, 366 Mass. at 96. Accordingly, the judge correctly 

denied the motion for new trial on this basis.6

 

6 The defendant cites to cases in other jurisdictions 

holding that compelled self-penetration does not constitute 

rape. See, e.g., State v. Bryant, 670 A.2d 776, 779 (R.I.

1996). That notwithstanding, we adhere to Massachusetts case 

law interpreting the language of our rape statutes which, as 

discussed, compels a different result.
15

2. Armed robbery indictment. Citing Commonwealth v. 

Garrett, 473 Mass. 257 (2015), the defendant also contends that 

his trial counsel was ineffective for not challenging the 

purported discrepancy between the armed robbery indictment and 

the evidence, which proved only that he used a BB gun and not a 

"dangerous weapon, to wit: firearm" as alleged in the 

indictment. The argument is unavailing.

In Garrett, the defendant was indicted and convicted of 

masked armed robbery by means of a firearm. Id. at 257-258. 

The defendant was not charged with armed robbery by means of a 

dangerous weapon. Id. at 258 n.1. Rather, the relevant 

indictments alleged, among other things, that the defendant, 

armed "with a handgun," committed armed robbery while masked

(emphasis supplied). Id. at 264. The evidence at trial, 

however, showed that the defendant used a BB gun. Id. at 258. 

The Supreme Judicial Court vacated the judgment because the 

court determined that a BB gun is not a firearm for the purpose 

of the armed robbery statute and, thus, the evidence in support 

of the indictment was insufficient. Id. at 263-264. The case 

was remanded for entry of a verdict of guilty on the lesser 

included offense of unarmed robbery. See id. at 267. The court

noted that "[t]he defendant was not indicted for, and thus 

cannot be convicted of, armed robbery with a dangerous weapon." 

Id. at 267 n.12.
16

In the present case, by contrast, the evidence was 

sufficient to support the crime as charged in the indictment. 

The armed robbery indictment alleged, among other things, that 

the defendant, "armed with a dangerous weapon, to wit: firearm 

did assault [the victim] with intent to rob her, and thereby did 

rob . . ." (emphasis supplied). The Commonwealth's evidence 

amply demonstrated that the defendant was armed with a dangerous 

weapon as that term has been defined in our case law. See 

Commonwealth v. Powell, 433 Mass. 399, 402 (2001) (replica or 

fake weapon is dangerous weapon "if the victim would, in all the 

surrounding circumstances, reasonably believe that the object 

was a real weapon").7 By drawing the indictment to allege the 

crime of armed robbery "with a dangerous weapon," rather than 

"with a handgun," the Commonwealth here avoided the concerns 

delineated in Garrett, 473 Mass. at 268 (Gants, C.J.,

concurring) ("Had the Commonwealth drawn its indictment to 

allege the crime of armed robbery with a dangerous weapon, the 

defendant would properly have been found guilty of armed robbery 

 

7 Consistent with the holding in Powell, supra at 404, the 

judge in the present case instructed, in relevant part, "A

person who uses a toy gun or other fake weapon to commit a 

robbery may be convicted of armed robbery if the victim 

reasonably took it to be a real weapon capable of inflicting 

bodily injury. The law of armed robbery does not require the 

Commonwealth to show that the instrument was actually used. It 

is sufficient if the Commonwealth proves beyond a reasonable 

doubt that the defendant was actually armed with a dangerous 

weapon."
17

because the BB gun in this case was a dangerous weapon, which 

under our case law includes a weapon that appears to be a 

firearm, even if not actually a firearm"). Where, as here, "it 

reasonably appeared, in all the circumstances, that the object 

in the defendant's possession was capable of inflicting serious 

bodily injury or death, the jury could conclude that that object 

was a dangerous weapon and that the robbery was therefore an 

armed robbery."8 Powell, supra at 404.

The defendant maintains that the problem raised in Garrett

nonetheless persists here because the indictment specified the 

dangerous weapon as, "to wit: firearm." We disagree. The "to 

wit" language in the indictment constituted a nonfatal variance 

under our precedent. See Commonwealth v. Harris, 9 Mass. App. 

Ct. 708, 710-711 (1980) (judgment predicated on armed robbery 

with gun affirmed where Commonwealth tried case on basis of

victim's testimony that underlying robbery was committed with 

gun, even though indictment specified that defendant was "armed 

with a dangerous weapon, to wit, a knife"). The defendant's 

argument ignores that he was convicted of the charges as 

submitted to the jury. The jury instruction correctly specified 

that the Commonwealth was required to prove that the defendant 

 

8 Of course, a BB gun may qualify as a dangerous weapon in 

its own right, without regard to its resemblance to some other 

form of weapon. Compare Powell, supra at 404.
18

"was armed with a dangerous weapon," and did not specify that 

the weapon must be a firearm.9 Thus, in the context of this 

case, the "to wit" language was superfluous. See Commonwealth

v. Grasso, 375 Mass. 138, 139 (1978) ("a defendant is not to be 

acquitted on the ground of variance between the allegations and 

proof if the essential elements of the crime are correctly 

stated, unless he is thereby prejudiced in his defense"); 

Commonwealth v. A Juvenile, 365 Mass. 421, 440 (1974) (language 

in indictment or complaint specifying means of death is 

superfluous and, thus, "defendant is not entitled to an

acquittal by reason of the Commonwealth's failure to prove 

unnecessary allegations in the description of a crime");

Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930 (1988) ("The 

language in the indictment specifying the particular weapon used 

is superfluous"). Finally, "[t]he particular type of weapon 

with which the armed robbery was committed was not an essential 

element of the crime" of armed robbery. Harris, supra at 712. 

Accordingly, the defendant has failed to demonstrate ineffective 

assistance of counsel and, thus, the judge correctly denied the 

motion for new trial on this basis.

Order denying motion for

new trial affirmed.

 

9 The defendant did not object to the judge's comprehensive 

instructions regarding the dangerous weapon element of armed 

robbery.
19