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

21-P-1056

COMMONWEALTH

vs.

WILLIAM HURCOMBE, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of 

assault and battery on a household or family member, indecent 

assault and battery, and larceny under $250. He was acquitted 

of rape and witness intimidation. On appeal, he challenges only 

his conviction for indecent assault and battery on the basis 

that the jury were not instructed on an essential element of 

that crime. We affirm his convictions of assault and battery 

and larceny, reverse his conviction of indecent assault and 

battery, and remand the case for further proceedings.

The only issue before us on this appeal involves a conceded 

error. One of the elements of indecent assault and battery is 

lack of consent. See, e.g., G. L. c. 268, § 13H; Commonwealth

v. St. Louis, 473 Mass. 350, 360-361 (2015); Commonwealth v. 

Burke, 390 Mass. 480, 482-483 (1983). The judge, however, left 
2

this element out of his instruction on that charge. Neither 

party objected. Because the defendant did not object to the 

lack of an instruction on consent, reversal will be warranted 

only if the error created a substantial risk of a miscarriage of 

justice. See Commonwealth v. Desiderio, 491 Mass. 809, 815

(2023).

In Desiderio, decided during the pendency of this appeal, 

the Supreme Judicial Court clarified the standard for 

determining when the omission of an instruction on an element of 

an offense will create a substantial risk of a miscarriage of 

justice. It said that because "on appeal, 'our role is not to 

sit as a second jury,' . . . we must analyze the evidence 

pertaining to that element with an exacting lens." Desiderio, 

supra at 817, quoting Commonwealth v. Azar, 435 Mass. 675, 689

(2002). It continued, "We therefore clarify today that, to 

determine whether a substantial risk of a miscarriage of justice 

is created by the omission of a required element from the jury 

instructions, the question is, as we said in Azar, supra [at 

688], whether the presence of the omitted element was an 

ineluctable, or inescapable, inference from the evidence 

presented at trial. In light of the nature and significance of 

this type of error, only when the answer to that question is 

'yes,' in this context, will the error not create a substantial 

risk of a miscarriage of justice." Desiderio, supra at 820.
3

Here, the answer to that question is a straightforward 

"no." The defendant contested the victim's version of events, 

and it was not an inescapable conclusion from the evidence at 

trial that the defendant touched the victim's breast without her 

consent. The guilty verdict on the charge of indecent assault 

and battery does mean that the jury credited the victim's 

testimony that the defendant touched her breast. But on the one 

count on which the jury was instructed that lack of consent was 

an element, the jury rejected the victim's claim of digital rape 

and acquitted the defendant. We do not know why. Perhaps the 

jurors concluded that digital penetration did not take place. 

Or perhaps they concluded that it did, but that it was 

consensual, and properly instructed on the elements of rape, 

they acquitted the defendant. With no instruction that an 

indecent assault and battery must also be without the victim's 

consent, it is possible that the jury convicted the defendant 

based on a consensual touching.

The Commonwealth argues that there was no substantial risk 

of a miscarriage of justice because "[t]he element of consent 

was not a contested issue at trial" and because "the evidence on 

the omitted element of consent was overwhelming." To be sure, 

the substantial risk test "contemplates whether the evidence 

addressing the omitted or erroneously stated element was 

overwhelming or uncontested at trial." Desiderio, 491 Mass. at 
4

817-818. As to whether an issue is contested, however, our case 

law explains that the actual "question is whether the element on 

which there was no instruction 'relate[s] to an issue actively 

contested at trial' (emphasis added), Commonwealth v. Gabbidon, 

398 Mass. 1, 5 (1986), such that a defendant might have been 

acquitted by a properly instructed jury." Commonwealth v. 

Mitchell, 95 Mass. App. Ct. 406, 414 (2019). The defendant did 

contest whether there had been any kind of struggle between the 

defendant and the victim. Given this, and in light of the jury 

acquitting the defendant of the digital rape the victim claimed 

had occurred, it is possible that if properly instructed on 

consent, the jury might have acquitted him of that crime as 

well.

Similarly, as to whether the evidence was overwhelming, 

"our assessment of the strength of the Commonwealth's evidence 

must focus on the evidence addressing the [omitted] element."

Desiderio, 491 Mass. at 819. This is consistent with our 

statement in Mitchell, decided before Desiderio, that we may 

affirm a conviction in these circumstances if "the jury's 

verdicts on the other counts on which the defendant was 

convicted compel the conclusion they 'necessarily found' the 

element on which they were not instructed." Mitchell, 95 Mass. 

App. Ct. at 412, quoting Commonwealth v. McCray, 93 Mass. App. 

Ct. 835, 847 (2018). We do not think the evidence or the jury's 
5

verdict showed that the jury necessarily found that the 

defendant touched the victim's breast without consent. The jury 

obviously did not completely believe the victim's or the 

defendant's story, and there is at least a possibility they 

could have found that there was some consensual sexual contact 

prior to the events for which they convicted the defendant of 

assault and battery on a household or family member. In other 

words, "[w]hile the evidence . . . may have been sufficient for 

the jury" to find that the defendant touched the victim's breast 

without her consent, such a finding was "hardly ineluctable." 

Desiderio, 491 Mass. at 822-823.

The convictions of assault and battery on a family member 

and larceny under $250 are affirmed, the conviction on indecent 

assault and battery is reversed, and the case is remanded for 

further proceedings consistent with this memorandum and order.

So ordered.

By the Court (Green, C.J.,

Rubin & Massing, JJ.1),

Clerk

Entered: July 28, 2023.

1 The panelists are listed in order of seniority.