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Commonwealth v. Villalta-Duarte9/12/2002
of the rule in Massachusetts, there is sufficient corroboration here. Cf. Commonwealth v. Manning, supra at 20 ("orthodox definition of 'corpus delicti' discussed in . . . Forde, [supra], does not directly advance our analysis").
All the Forde rule, as reaffirmed in subsequent cases, requires "is that there be some evidence, other than a confession, that the criminal act was committed by someone." Commonwealth v. Morgan, 422 Mass. 373, 378 (1996) (emphasis supplied). Here the evidence showed that, at the same time that the defendant was present at his apartment during the day, the preverbal victim began to cry hysterically when brought to the apartment, developed an intractable diaper rash, and had scratches on her face. These symptoms, which were initially repeated at the home of a new day care provider, disappeared after a few weeks at that provider's home. This evidence is sufficient to support an inference that something traumatic occurred in the apartment where the defendant lived. Contrast Commonwealth v. Landenburg, 41 Mass. App. Ct. at 25 (no evidence that items defendant claimed to have stolen had been stolen). Moreover, although not necessary under Massachusetts cases, the evidence, aside from the confessions, suggests that the defendant was a likely culprit. See State v. Ervin, 731 S.W.2d 70, 71-72 (Tenn. Crim. App. 1986) (enlarged vaginal opening sufficient circumstantial evidence to establish "corpus delicti" and corroborate defendant's confession that he had sexually abused his eleven year old step-daughter, even though she recanted and said that she had had sex with a boy). Compare New York v. Groff, 71 N.Y.2d 101, 103, 110 (1987) (unsworn grand jury testimony of four year old girl who said she did not know the difference between telling the truth and telling a lie was sufficiently corroborated by evidence of vaginal rash, pain on urinating, and personality change after night on which child said defendant had raped her).
Sentencing issue.
The Commonwealth agrees that we should vacate the convictions on the duplicative indictments of assault with intent to rape and indecent assault and battery, see Commonwealth v. Morin, 52 Mass. App. Ct. 780, 788 (2001), and asserts that we should remand the case for resentencing on the remaining indictments of rape. We agree that the convictions on the other indictments should be vacated, but we conclude that there is no reason to remand for resentencing. The sentences on the rape convictions (seven to ten years at Cedar Junction on one indictment and five years probation from and after that sentence on the other indictment) shall stand, and the remaining sentences should be vacated. The judgments are otherwise affirmed.
So ordered.
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