Heard: December 10, 2018.
found and returned in the Superior Court Department on August
16, 2012. The case was tried before Frances A. Mclntyre, J.
Michael J. Hickson for the defendant.
E. Lee, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Wolohojian, & Wendlandt, JJ.
jury trial, the defendant, Cirilo Garcia, was convicted of
dissemination of matter harmful to a minor, G. L. c. 272,
§ 28; rape of a child aggravated by age difference, G.
L. c. 265, § 23A (a.); incest, G. L. c. 272, § 17;
and witness intimidation, G. L. c. 268, § 13B, all
arising from a series of assaults against his biological
daughter when she was between the ages of seven and
eleven. On appeal he contends that (1) the
conviction of dissemination of matter harmful to a minor must
be vacated, because of a statutory exception applicable to
parents and legal guardians, (2) his conviction on one
indictment for rape must be vacated, because the indictment
was improperly amended at trial, (3) the conviction of incest
must be vacated because the jury instructions prejudicially
enlarged the indictment for that charge, and (4) the evidence
of witness intimidation was insufficient to support his
conviction, because the threats supporting the conviction
occurred before any criminal investigation began. We discern
no merit in the defendant's challenges to his convictions
of incest and witness intimidation, but we conclude that we
are constrained to reverse the challenged counts of rape and
dissemination of matter harmful to a minor.
The defendant is the victim's father. The defendant moved
to the United States from Guatemala around the time of the
victim's birth in 2000. His wife, the victim's
mother, followed him to the United States in 2003, leaving
their two children with their maternal grandmother in
Guatemala. In 2006, when the victim was five or six years
old, she moved to New Bedford to live with her parents and
siblings and met the defendant for the first time.
The defendant and his wife worked different shifts, such that
the defendant was home alone with the children in the morning
and sent them off to school. However, the victim missed
"a lot" of school because her father kept her home.
When the victim was seven years old, the defendant began
from the time the victim was seven until she was eleven, the
defendant raped her forty or more times. As the defendant
raped the victim, he would talk about the victim's
aunt's recent marriage and sex life despite the
victim's protests that she was "too little to hear
about it." The defendant also showed the victim naked
men "putting their private stuff on each other" on
the Playboy television channel as he raped her. The defendant
threatened to kill the victim, her mother, and her family if
she ever told anyone about the abuse. He told the victim that
even if he went to jail and got deported he would pay someone
to kill her and her family.
8, 2012, the defendant raped the victim vaginally, orally,
and anally. This was the last time the defendant raped her;
she disclosed the abuse to her mother on that date. She
disclosed the abuse because her parents were fighting, the
children had to intervene, and the victim thought her
"dad was actually going to kill" her mother. The
victim went into her mother's bedroom, locked the door,
and hid in the closet with her mother as she described the
abuse. After the disclosure, the victim spoke to the police
and went to the hospital. A nurse there took vaginal and
anal-rectal swabs. The defendant's deoxyribonucleic acid
(DNA) matched the major profile of the sperm found on both
swabs. A supervisor in the State police forensics laboratory
testified that the defendant's DNA profile is "very
1. Dissemination of matter harmful to a minor. The
defendant contends, and the Commonwealth concedes, that his
conviction of dissemination of matter harmful to a minor
cannot stand because the statute provides a defense where
"the defendant was in a parental or guardianship
relationship with the minor." G. L. c. 272, § 28.
See Commonwealth v. Poitras, 55 Mass.App.Ct. 691,
692 n.l (2002). Our independent review of the record, see
Commonwealth v. McClary, 33 Mass.App.Ct. 678, 686
n.6 (1992), cert, denied, 510 U.S. 975 (1993), demonstrates
that the defendant was in a parental relationship with the
victim,  and he is entitled to the parental defense
provided by the statute. Accordingly, his conviction of
dissemination of matter harmful to a minor under G. L. c.
272, § 28, must be reversed.
Rape of a child aggravated by age difference. The
defendant contends that his conviction of rape of a child
aggravated by age difference on indictment no. 2012-742-1
(indictment no. 1) must be reversed because the
Commonwealth's proof, the judge's instructions, and
the verdict slip constructively amended the indictment. The
defendant argues that the judge's instructions
"enlarge[d]" the indictment, "replaced"
its allegation, and "impermissibly permit[ted] a
material change" in the grand jury's work, thereby
violating his due process rights by "adding an
additional ground of criminal liability for which the
defendant could be found guilty."
must be "proved as charged," so as to "protect
[ ] the grand jury's role in the criminal process and
ensure that the defendant has proper notice of the charges
against him." Commonwealth v. Hobbs, 385 Mass.
863, 869 (1982). See art. 12 of the Massachusetts Declaration
of Rights. "A constructive amendment to an indictment
occurs when either the government (usually during its
presentation of evidence and/or its argument), the court
(usually through its instructions to the jury), or both,
broadens the possible bases for conviction beyond those
presented by the grand jury" (citation omitted).
Commonwealth v. Bynoe, 49 Mass.App.Ct. 687, 691-692
(2000) . "[A]n amendment may not broaden the charges
against a defendant." Commonwealth v. Ruidiaz,
65 Mass.App.Ct. 462, 464 (2006). Indictments may be amended
as to form but not as to substance. See Mass. R. Crim. P. 4
(d), 378 Mass. 849 (1979). An amendment is substantive where
"an acquittal on the original charge would not bar
prosecution on the amended charge." Bynoe, 49
Mass.App.Ct. at 691.
indictment no. 1 charged the defendant with rape of a child
aggravated by age difference under G. L. c. 265, §
23A(a.) .  The text of the indictment alleged
that the defendant "did have sexual intercourse"
with the victim, a "child under sixteen years of age
when there existed more than a five-year age difference"
between them. At the commencement of trial, the Commonwealth
made clear that it intended to rely at trial on the oral or
anal rape of the victim, and the Commonwealth consistently
did so during the course of the trial. Consistent with that