COMMONWEALTH vs. CLARENCE THAYER (and nine companion cases [Note 1]).

NOLAN, J. The defendants, Clarence and Isabell Thayer, husband and wife, were tried jointly on indictments charging them with forcible rape of their two children, [Note 2] both under the age of sixteen in violation of G. L. c. 265, Section 22A (1992 ed.), and with indecent assault and battery on a child under the age of fourteen in violation of G. L. c. 265, Section 13B (1992 ed.). After trial, the defendants were found guilty of statutory rape (G. L. c. 265, Section 23) and indecent assault and battery. The defendants appealed to the Appeals Court which reversed the convictions of statutory rape and affirmed the convictions of indecent assault and battery. 35 Mass. App. Ct. 599 (1993). We granted the Commonwealth's application for further appellate review. We affirm the judgments of the Superior Court.

From the evidence, the jury were warranted in finding that between December, 1985, and March, 1989, the defendants sexually abused their two children [Note 3] by digital and penile, vaginal and anal, penetration.

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The children were removed from the defendants' home by the Department of Social Services (department) in March, 1989, and in April were placed in the foster home of James and Janice Doran. They continued to see the defendants on a weekly basis under the supervision of a department social worker. After the girls disclosed to the Dorans in July and August, 1989, that Clarence had sexually abused them, the department terminated Clarence's visitation rights. In late June, 1990, the girls told the Dorans and the department that their mother had also raped them.

1. Lesser included offense. Clarence concedes that statutory rape in G. L. c. 265, Section 23, [Note 4] is a lesser included offense within the forcible rape of a child under sixteen years of age within G. L. c. 265, Section 22A. Commonwealth v. Franks, 365 Mass. 74, 78 (1974). The principal issue (and the only one raised by Clarence) in this case is whether the judge erred in giving an instruction on statutory rape which differs from forcible rape because the Commonwealth is not required to prove lack of consent, force, or threat of bodily injury.

The test is whether on any view of the evidence a verdict of guilty of the lesser included offense of statutory rape is permitted. The test has been described in terms of whether the evidence presents "a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Santo, 375 Mass. 299, 305 (1978), quoted with approval in Commonwealth v. Egerton, 396 Mass. 499, 503 (1986). Phrased still differently, if on any hypothesis of the evidence, the jury could have found the defendants guilty of statutory rape, giving an instruction to the jury on this crime is not error. See Commonwealth v.

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Walden, 380 Mass. 724, 727 (1980). [Note 5] Clarence alone argues that he wanted an "all or nothing" charge on forcible rape. It must be admitted that it would have been better practice for the prosecutor to bring the matter of such an instruction to the judge's attention at the charge conference and for the judge to give the instruction on the lesser included offense with her first general jury instructions. The prosecutor, after the judge's first instructions, apologized to the judge for not raising the issue during the charge conference but the judge at that time refused to give the requested instruction. The next morning before the jury resumed deliberations, the judge informed counsel that she was going to give an instruction on statutory rape. The defendants objected. However, the "test to determine if an instruction on a lesser included offense is required does not depend on whether there is an objection by the defendant or the Commonwealth but rather whether the evidence supports the giving of such instruction." Commonwealth v. Vasquez, 27 Mass. App. Ct. 655, 660 (1989), and cases cited.

This case is presented in a different focus from most cases involving the issue of an instruction on a lesser included offense because in most cases the defendant is arguing that the failure of the judge to give such instruction is reversible error. See, e.g., Commonwealth v. Campbell, 352 Mass. 387, 398-399 (1967) (error to refuse to instruct on involuntary manslaughter in trial of murder indictment).

If the jury disbelieved the victims' testimony about threats of slapping and spanking and getting in "trouble," they might still believe that the defendants had intercourse with the victims or abused them. This hypothesis was sufficient to justify the instruction on statutory rape. [Note 6]

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For the first time, Clarence argues that he was deprived of the opportunity of arguing to the jury the crime of statutory rape. When he objected to the instruction, it was solely because in his view there was no evidence from which the jury could find the defendants guilty of statutory rape.

The Commonwealth concedes, as it must, that there was a violation of Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979), in the judge's failure to inform counsel of her proposed instructions before final argument. However, when the judge announced her intention to give the instruction on statutory rape, the defendants made a timely objection.

Clarence was not prejudiced because he maintained throughout the case that the defendants never had sexual intercourse with the victims with or without force. This was Clarence's position throughout the entire trial. He can hardly claim to be prejudiced by an instruction concerning rape without force.

2. Fresh complaint. Isabell argues that the victims' statements to their foster parents in which they complain they were sexually abused by her, should not have been admitted as fresh complaint because of delay and coercion. These statements were uttered approximately sixteen months after the last alleged incident. There was no objection interposed at trial. There is no evidence that these statements were coerced and they were not untimely in the light of the victims' ages and circumstances. See Commonwealth v. Dockham, 405 Mass. 618, 618, 625-626 (1989). Whether statements are sufficiently "fresh" is within the sound discretion of the trial judge. Commonwealth v. Fleury, 417 Mass. 810, 813-815 (1994), and cases cited.

3. Expert testimony. There was no error in qualifying a licensed psychiatric social worker as an expert witness. Her testimony did not exceed the province of her expertise and her competency did not depend on her being a medical doctor. See Custody of a Minor (No. 2), 378 Mass. 712, 723 (1979). There was no error in admitting her testimony as to the general behavioral characteristics exhibited by sexually abused children. Commonwealth v. Dockham, supra at 630.

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4. Other issues. There was no error in denying the requested instruction on "missing witnesses" because a proper foundation had not been laid. There was no right to the instruction and the judge properly declined to provide it. Commonwealth v. Franklin, 366 Mass. 284, 292-293 (1974).

There is nothing to Isabell's argument that the indictments were duplicative. Each indictment alleged a separate incident.

Judgments affirmed.