Recently in an unpublished opinion the Appeals court ruled that Assault & Battery is a lesser included offense of Rape in COMMONWEALTH vs. PERDITE SCOTT MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
The court in ruling stated “The defendant, Perdite Scott, was convicted of rape (second offense), assault with intent to rape, and assault and battery. On appeal, he argues that (1) the jury instructions failed to convey the essential elements of the charges against him; (2) the trial judge failed to give a specific unanimity instruction, and the convictions on the lesser charges are potentially duplicative of the rape conviction;
Duplicative convictions. As the issue of duplicative convictions was not raised at trial, we review this issue to determine whether there has been a substantial risk of miscarriage of justice. More particularly, we evaluate the evidence, and the instructions, to determine the risk that the defendant may have been convicted of cognate offenses based on a single act. See Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 754-755 (2008). Convictions of multiple cognate offenses not based on separate and distinct acts violate double jeopardy principles. See Commonwealth v. Vick, 454 Mass. 418, 431 (2009).
Assault and battery is a lesser included offense of rape, see Commonwealth v. Richmond, 379 Mass. 557, 562 (1980); Berrios, supra at 753, but we conclude that there was ample evidence of separate acts, particularly the smacking and choking of the victim prior to the rape, and adequate argument by the Commonwealth regarding those separate acts, to avoid a substantial risk of a miscarriage of justice.
As for the assault with intent to rape, the Commonwealth argues only that it is not a lesser included offense. As we have previously held that it is, albeit without parsing the elements of the two crimes, we conclude that this conviction must be vacated. See Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 347 (1999) (‘[t]he crime of assault with intent to rape is a lesser included offense of rape’); Commonwealth v. Westbrook, 58 Mass. App. Ct. 692, 700 (2003) (‘[b]y finding the defendant guilty of the lesser included offense of assault with intent to rape, it is clear that the jury did not believe that the defendant had penetrated the victim’)”