November 14, 2018.
N.E.3d 1060] INDICTMENTS found and returned in the Superior
Court Department on February 7, 2012. The cases were tried
before Heidi E. Brieger, J.
Michael P. Gerace, Worcester, for the defendant.
Kathleen Walsh, Assistant District Attorney, for the
Agnes, Blake, & Neyman, JJ.
Superior Court jury found the defendant, Edgardo Rios, guilty
on two indictments charging rape of a child by force, G. L.
c. 265, � 22A, two indictments charging aggravated rape of a
child, G. L. c. 265, � 23A, one indictment charging indecent
assault and battery on a child under the age of fourteen, G.
L. c. 265, � 13B, and assault with intent to rape a child, G.
L. c. 265, � 24B, as a lesser included offense of aggravated
rape of a child (indictment one). The defendant raises
numerous [135 N.E.3d 1061] claims of error. We vacate the
judgment on indictment one, and affirm the judgments on the
summarize the evidence presented at trial, reserving certain
details for the discussion of specific issues. The victim was
eleven years old at the time of trial in 2014 and between
eight and nine years old at the time described in the
indictments. The defendant and the victim’s mother met
through church in 2005, and later reconnected in 2010 or
2011. Upon reconnecting, the defendant began assisting the
mother by driving her places -- including to appointments,
stores, and church -- as
the mother did not have a car. The mother would assist the
defendant by translating things into English. Through this
relationship the defendant and the mother became friends, and
the defendant came to know the victim and the victim’s two
siblings. The defendant would sometimes be invited to the
mother’s house and other times would just arrive unannounced.
victim made her first complaint of abuse on January 7, 2012.
On that date, the mother hosted a birthday party for her
godson at her house. That morning, she called the defendant
for a ride to get a cake and other items for the party. He
agreed to do so and spent most of the day with the mother and
the victim. During the party, Jacqueline Flores, a friend of
the mother who had never met the defendant, observed the
defendant sitting alone with the victim in the living room.
She saw the defendant touch the victim "[i]n her private
part" or vaginal area while the victim was playing with
the defendant’s laptop. When the defendant left the party,
Flores, who testified as the first complaint witness,
questioned the victim about what had occurred, and the victim
admitted that she had been touched in her private part.
trial, the victim testified to several incidents of abuse.
According to the victim’s testimony, some of these incidents
occurred only once and others recurred. The victim testified
to one incident that occurred at her mother’s house while
playing on the defendant’s laptop where the defendant touched
her private part on top of her clothes. While this testimony
was similar to the conduct observed by Flores on January 7,
2012, the victim testified that this occurred on a different
victim also testified to abuse occurring in the defendant’s
van. She testified that on one occasion when the defendant
was giving her a ride to school, he touched her front private
part and inserted his index finger in her butt. She also
testified to a separate occasion in the defendant’s van where
the defendant rubbed his hand on her front private part when
taking the victim to see the Lowell Christmas tree.
victim further testified that on more than one occasion at
the defendant’s house on his bed he inserted his tongue in
her butt. Finally, the victim testified that on one occasion
at the defendant’s house the victim returned from the
bathroom to find the defendant with his pants down and
"balls" exposed. On this occasion, the victim
testified that the defendant tried to get near her by trying
to go to her front private part while her pants were down but
was unable to do so because she kicked out in his direction.
N.E.3d 1062] Discussion .
appeal, the defendant argues that (1) the trial judge
improperly refused to excuse a juror for cause; (2) two of
the convictions are duplicative of convictions on greater
offenses and should be vacated; (3) the trial judge
erroneously instructed the jury concerning (a) collective
memory and (b) specific unanimity, and (c) improperly
declined to instruct the jury on lesser included offenses.
The defendant also contends that (4) the prosecutor made
improper statements in closing argument.
Jury empanelment .
defendant contends that the judge erred by not striking a
juror for cause. The judge first arranged for the prospective
jurors to answer questions in writing and under oath that
were contained in a written "worksheet." These
questions included those that must be asked in every case,
see Mass. R. Crim. P. 20 (b), 378 Mass. 889
(1979), as well as other questions that were