¶1The judgment on the aggravated rape is affirmed. For the reasons articulated by the Appeals Court, Commonwealth v. Houston, 46 Mass. App. Ct. 378, 383 (1999), the judgment on the kidnapping charge is reversed, the verdict is set aside, and the indictment is dismissed.
¶2So ordered.
¶3Separate opinions of Chief Justice Marshall, with whom Justices Abrams and Greaney join; Justice Lynch, with whom Justice Ireland joins; and Justice Cowin appear below.