December 10, 2018
N.E.3d 343] INDICTMENTS found and returned in the Superior
Court Department on August 16, 2012. The case was tried
before Frances A. McIntyre, J.
J. Hickson, Springfield, for the defendant.
E. Lee, Assistant District Attorney, for the Commonwealth.
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 [120 N.E.3d 344] 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.
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 raping her.
all, 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 ...