The opinion
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
25-P-117
COMMONWEALTH
vs.
DWAYNE M. CHEATHAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2023, a grand jury indicted the defendant on three
counts of rape, pursuant to G. L. c. 265, § 22 (b). After a
jury trial, the defendant was convicted of one count of rape and
acquitted of the remaining counts. On appeal, the defendant
claims that his conviction was not supported by sufficient
evidence, and that the judge erred in denying his request for an
instruction on the lesser included offense of indecent assault
and battery on a person over age fourteen. See G. L. c. 265,
§ 13H. We affirm.
1. Sufficient evidence. The defendant claims that the
Commonwealth did not present evidence sufficient to establish
the elements of rape, and thus the judge should have granted his
motion for a required finding of not guilty. We disagree.
When analyzing whether the record evidence is sufficient to
support a conviction, an appellate court is not required to "ask
itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt." Commonwealth v.
Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting
Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).
Nor are we obligated to "reread the record from a [defendant]'s
perspective." Palmariello v. Superintendent of M.C.I. Norfolk,
873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989).
See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (2008).
Rather, the relevant "question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
When evaluating sufficiency, the evidence must be reviewed
with specific reference to the substantive elements of the
offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.
at 677-678. To sustain the defendant's conviction for rape
under G. L. c. 265, § 22 (b), the Commonwealth must prove two
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elements: (1) the defendant penetrated the victim's genital,
anal, or other opening, and (2) the penetration occurred by
force or threat of bodily harm without the victim's consent.
See Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001). In
this appeal, the defendant challenges only the first element of
penetration, and essentially argues that the evidence was
insufficient because the victim's testimony was inconsistent and
not credible.1 The defendant also claims that there was no
physical evidence supporting the victim's testimony. Neither
contention has merit.
"The sworn testimony of the victim of a sexual assault,
including rape, is [sufficient] evidence of the facts asserted."
Commonwealth v. Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021).
Here, the victim testified to facts that constituted each
element of the count of rape for which the defendant was
convicted. See Commonwealth v. Gonsalves, 23 Mass. App. Ct.
184, 185 (1986). According to the victim, the defendant "forced
[her] to turn around, and took his penis out and put it in [her]
-- while he was holding [her] hips," and that she told him, "No"
and "stop," but "he just kept going." Such testimony
1 In his brief, the defendant notes that he was only
convicted of one count of rape, and acquitted of the other two.
However, he expressly disclaims any argument related to the
verdicts being factually inconsistent.
3
constitutes sufficient evidence of each element of the offense
of rape, including penetration, and justified the denial of the
defendant's motion for a required finding of not guilty. See
Gonzalez Santos, 100 Mass. App. Ct. at 3. See also Gonsalves,
23 Mass. App. Ct. at 185.
The defendant alleges that inconsistencies in the victim's
testimony support granting the required finding of not guilty.
We disagree, as inconsistencies in the victim's testimony "go to
[her] credibility and do not affect the sufficiency of the
evidence." Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).
Furthermore, and contrary to the defendant's claim, the
Commonwealth presented physical evidence of penetration
including the male deoxyribonucleic acid found on the victim's
vaginal swab from which the defendant could not be excluded.
Also, in the sexual assault nurse examiner's testimony, she
noted marks on the victim's knees and right inner thigh which
were consistent with the victim's testimony as to how the rape
occurred. The nurse also testified that there was redness below
the vaginal opening towards the back portion of the victim's
genitals, which further corroborated her account.2
2 The defendant also argues that the conviction may have
been a result of sympathy for the victim, rather than from an
assessment of the evidence. This argument, however, ignores our
standard of review. See Latimore, 378 Mass. at 677. In fact,
were we "to indulge this argument, we would have to view the
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2. Request for lesser included instruction. The defendant
also claims that the judge erred in denying his request for an
instruction on the lesser included offense of indecent assault
and battery on a person over age fourteen because there was
evidence that the distinguishing element between the offenses,
penetration, was sufficiently in dispute. We disagree.
Where the defendant objected to the judge's denial of a
request for instruction on a lesser included offense, we review
for prejudicial error. See Commonwealth v. Brown, 481 Mass. 77,
86 (2018). When a defendant requests an instruction on a lesser
included offense, the judge ordinarily must grant the request
when the evidence permits a finding on the lesser included
offense. See Commonwealth v. Woodward, 427 Mass. 659, 662-663
(1998). For evidence to permit a finding on the lesser included
offense, the evidence at trial must present "a rational basis
for acquitting the defendant of the crime charged and convicting
him of the lesser included offense" (quotation and citation
omitted). Commonwealth v. Donlan, 436 Mass. 329, 335 (2002).
However,
"even when evidence is introduced that would justify
conviction for a lesser included offense, the defendant is
not entitled to an instruction thereupon unless the proof
on the elements differentiating the two crimes is
evidence in the light least favorable to the Commonwealth,
which, of course, we cannot do." Commonwealth v. Arias, 78
Mass. App. Ct. 429, 435 (2010).
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sufficiently in dispute so that the jury may consistently
find the defendant innocent of the greater and guilty of
the lesser included offense" (quotation and citation
omitted).
Id.
The distinguishing element between rape and indecent
assault and battery of a person over age fourteen is
penetration. Donlan, 436 Mass. at 336. "[S]ome evidence that
disputes or puts into question the element of penetration. . . .
in ordinary circumstances cannot be the mere possibility that
the jury might not credit a portion of the Commonwealth's
evidence" (emphasis added). Id. at 337.
Here, the Commonwealth established the element of
penetration through the victim's testimony. She stated that the
defendant, without her consent, penetrated her vagina with his
penis on August 23, 2022. This was sufficient to establish the
element of penetration. See Gonzalez Santos, 100 Mass. App. Ct.
at 3. Importantly, the defendant did not challenge the victim's
testimony on this point. Rather, the defense's trial strategy
was to argue that no rape, battery, assault, or any other
criminal offense ever occurred, and the victim's testimony was
not to be believed.
Contrary to the defendant's claim, this case is not
materially distinguishable from Donlan, 436 Mass. at 335-337.
As in Donlan, here, the victim's testimony regarding penetration
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was not challenged on cross-examination. Id. at 336. Defense
counsel's cross-examination of the victim consisted of attacking
her credibility, including highlighting the numerous times the
victim invited the defendant to visit her apartment, and
highlighting the text and video messages between the victim and
the defendant. In addition, the defendant did not present his
own evidence to dispute the element of penetration for the rape,3
nor did defense counsel argue as such in closing.4
Rather, the defendant essentially claims that the mere
possibility that the jury may not credit a portion of the
Commonwealth's evidence, specifically the evidence relating to
the element of penetration, but credit the evidence on the other
3 The defendant claims that the judge forced him into an all
or nothing defense, while also arguing that he presented
evidence that put the specific element of penetration in
dispute. Putting aside the internally inconsistent nature of
this claim, we disagree with the suggestion that the judge
forced him into an all or nothing defense. The record reflects
that the defendant and his counsel chose this defense, evidenced
by counsel's cross-examination of the victim.
4 The defendant specifically claims that his counsel
challenged the element of penetration in his closing argument.
Upon a full review of the record, we disagree. The closing
argument clearly focused on the credibility of the victim:
"We're supposed to believe that she reached out to the guy who
raped her," "[it] [d]oesn't make any sense," "[a]pparently
that's where a violent attack happened," and "[it] doesn't fit
the narrative of somebody who came over twice and committed a
violent attack on both occasions." The closing argument did not
contain a single reference to penetration or its absence.
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elements of rape, entitles the defendant to an instruction on
the lesser included offense. The Supreme Judicial Court plainly
stated that this possibility alone is not enough to warrant such
an instruction. See Donlan, 436 Mass. at 337; Commonwealth v.
McCaffrey, 104 Mass. App. Ct. 642, 654 (2024). "If credited,
[the evidence in this case] supports only a conviction of rape,
and not of the lesser included offense of indecent assault and
battery." Donlan, supra at 336. Accordingly, the judge did not
err in declining to give the instruction.
Judgment affirmed.
By the Court (Meade,
Desmond & Wood, JJ.5),
Clerk
Entered: January 7, 2026.
5 The panelists are listed in order of seniority.
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