¶1(dissenting). The jury were charged in this case that, as to the two codefendants tried together, proof of aggravated rape under G. L. c. 265, § 22(a),
¶2Given emerging concepts in other jurisdictions concerning the law of joint venture and conspiracy, further development of our Massachusetts criminal law on such issues may be in order, particularly the sustainability of the conviction of a single defendant joint venturer in a consolidated trial, wherein all other alleged codefendant joint venturers are acquitted. However, on the existing state of the law of joint venture in Massachusetts, as set forth in Supreme Judicial Court precedent (which we are bound to follow), the defendant’s conviction should not stand.
¶3As matter of existing Massachusetts law, “if at a single trial for conspiracy [and I would add joint venture] all but one of the defendants are acquitted of the charge, a conviction of the remaining defendant must be set aside.” Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982). Accord Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 235 (1991) (“We do not have here a defendant convicted of a crime based on joint enterprise and all other defendants acquitted of similar charges in the same trial”); Commonwealth v. Wojcik, 43 Mass. App. Ct. 595, 602 (1997) (“We are not faced here with a circumstance in which a defendant was convicted of a crime based on joint enterprise and other defendants were acquitted of similar charges in the same trial”).
¶4One case, Commonwealth v. Clements, 51 Mass. App. Ct. 508 (2001), S.C., 436 Mass. 190 (2002), deviates from the precedent set out in the aforecited cases, all of which are also *583cited in the majority opinion. Clements does not, I believe, support the weight placed on it in the majority’s analysis.
¶5*584When Cerveny, supra,one of the controlling cases, was decided in 1982, courts across the country, State and Federal, “generally held that the acquittal of all persons with whom a defendant is alleged to have conspired [or, I would add, engaged in a joint venture] precludes conviction of the remaining defendant.” See Annot., Prosecution or Conviction of One Conspirator as Affected by Disposition of Case Against Coconspirators, 19 A.L.R. 4th 192, 197 (1983) (hereinafter A.L.R. Annotation). On this generally held issue of law, the Supreme Judicial Court’s Cervenycase is included in the A.L.R. Annotation. See id. at 28 (Supp. 2008).
¶6This “general rule,” I would submit, applies equally to joint venture law, in that the law governing proof of the elements of a joint venture shares commonalties with, and, in the main, is analogous to, the elements of proof of a conspiracy. These commonalities are evident in the congruent holdings in Cerveny, supra,concerning conspiracy law principles, and Coleman, supra,and Wojcik, supra,concerning joint venture law principles. That being so, if all coconspirators — except one jointly tried conspiracy defendant — and if all joint venturers — except one jointly tried joint venturer defendant — are acquitted of the *585crime of conspiracy or joint venture, a conviction of the sole remaining conspirator or joint venturer cannot stand.
¶7This exception, prevalent in old State and Federal law, was known as the “rule of consistency” exception to inconsistent verdicts. See A.L.R. Annotation, supra at 204-205. However, in recent developments, the rule of consistency among coconspirators — a rule that I believe is equally applicable to joint venture — once widely applied in Federal conspiracy cases (many of which are included in the compendium of Federal and State case law in the A.L.R. Annotation, supra), has been eroding.
¶8However, there has not been occasion, to the extent I can determine, for the Supreme Judicial Court to reconsider the rule of consistency in relation to Massachusetts criminal law concerning acquittals of all alleged coconspirators or, as most pertinent to this appeal, concerning, in a consolidated trial, the acquittal of the alleged codefendant coventurer on an indictment, for aggravated rape by joint venture, leaving just one codefendant guilty of the requisite joint venture element of proof under the *586aggravated rape statute. G. L. c. 265, § 22(a).
¶9There may be compelling reasons in this case not to follow the rule of consistency embedded in the holding in Cerveny, 387 Mass, at 285: “if at a single trial for conspiracy [and, I would add, for joint venture] all but one of the defendants are acquitted of the charge, a conviction of the remaining defendant *587must be set aside.” However, further formulation of Massachusetts criminal law on such issues — perhaps to address inconsistent verdicts in a joint venture trial for aggravated rape, and perhaps to review whether the rule of consistency should be abandoned in a consolidated trial such as this one, where only one codefendant joint venturer charged with aggravated rape by joint venture is found guilty while the alleged codefendant joint venturer is acquitted — rests with the Supreme Judicial Court.
¶10Based on the present state of Massachusetts law and existing precedent, I respectfully dissent from the affirmance of the defendant’s conviction of aggravated rape.
¶11Aggravated rape under G. L. c. 265, § 22(a), is defined, in pertinent part, as follows:
“Whoever has sexual intercourse or unnatural sexual intercourse with *582a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or [which] is committed by a joint enterprise, or is committed during the commission or attempted commission of [a specially designated] offense . . . shall be punished by imprisonment in the state prison for life or for any term of years” (emphasis added).
¶12The majority opinion appears to recognize the legal force of the Cerveny, Wojcik, and Colemancases. Yet, notwithstanding this line of cases, the majority ultimately turns to the Appeals Court’s Clements decision as support for the proposition that a defendant may be convicted as a joint venturer, with a solitary conviction of that particular defendant standing alone, and with all other jointly tried codefendants acquitted as participants in the joint venture. However, as the majority notes, on further appellate review of the Clements case, the Supreme Judicial Court expressly limited the issue to be considered as follows: “whether inconsistent, recanted extrajudicial statements of identification that were the sole evidence of guilt are sufficient to convict.” Commonwealth v. Clements, 436 Mass. 190, 191 (2002). The Supreme Judicial Court did not address the joint venture question, and whether the sole conviction of one charged joint venturer, and the acquittal in the same trial of all other charged joint venturers, is an inconsistent verdict invalid as matter of law. The majority states that the Supreme Judicial Court in Clements “left undisturbed the holding of this court with respect to the inconsistency of the verdicts,” see ante at note 4, and, from there, seems to suggest that by not engaging in further appellate review, and by not disturbing the analysis of the Appeals Court on joint venture, the Supreme Judicial Court somehow .endorsed the Appeals Court’s Clements holding on that issue. I do not so read the Supreme Judicial Court’s action in limiting further appellate review to a different issue. Simply because the joint venture/inconsistent verdict question was not the subject of further appellate review does not mean that the joint venture/inconsistent verdict analysis in the Appeals Court’s Clements decision can be deemed to have somehow overruled, or in some way to have changed or altered, the joint venture/inconsistent verdict precedent established in Massachusetts law by our highest court in Cerveny, supra,and followed by the Appeals Court in Wojcik, supra,and Coleman, supra.See note 3, infra.
¶13To be clear, I note that there is a difference between factually inconsistent verdicts and legally inconsistent verdicts. Factually inconsistent verdicts do not warrant reversal of the offenses on which guilty verdicts enter. Legally inconsistent verdicts compel reversal of the offenses on which guilty verdicts enter. “Our rule is well settled that, in cases tried before a jury, mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury. The rule recognizes the power, possibly salutary, of juries to compromise and to act out of leniency.” Commonwealth v. Gonzalez, 452 Mass. 142, 150-151 (2008) (citations, quotations, and footnote omitted). In Gonzalez, the court extended this well-settled rule to inconsistent factual verdicts by a judge in a bench trial. The Supreme Judicial Court, however, emphasized in Gonzalezthat legally inconsistent verdicts are different.
“A factually inconsistent verdict is distinct from the legally inconsistent verdict that arises when there exists no set of facts that the government could have proved in the particular case that would have resulted in the verdict at issue. See Commonwealth v. Walker, 442 Mass. 185, 203*584(2004), quoting Commonwealth v. Elliffe, [47 Mass. App. Ct. 580, 584 (1999)] (‘A defendant is entitled to relief “only where verdicts are legally inconsistent — i.e., where, removed from the factual context of the particular case, the government could not possibly have proved the elements of both crimes with respect to the defendant” ’); Commonwealth v. Nascimento, 421 Mass. 677, 683 (1996) (inconsistent in law for defendant to be convicted both of stealing property and of receiving same property). Such legally inconsistent verdicts cannot be sustained, even when they are rendered by a jury.”
¶14Id.at 151 n.8.1 believe that what is at issue in this case is a legally inconsistent verdict arising out of a joint trial, which yielded a jury verdict of not guilty with respect to the only other charged joint venturer, leaving the defendant — with no other person similarly found guilty — convicted by a jury verdict of guilty of the statutorily defined crime of aggravated rape by joint venture. It is an important distinction that joint venture is an element of proof of a violation of G. L. c. 265, § 22(a). We are not dealing with a theory of proof. If an element of a crime is not proved, there may be legally inconsistent verdicts. Joint venture is an element of this crime. See note 7, infra. Furthermore, a “legally inconsistent verdict[] cannot be sustained, even when rendered by a jury.” Gonzalez, supra.Accordingly, I reject the majority’s analysis, ante at note 3.
¶15See Schuler, The Lone Conspirator, Criminal Law’s Oxymoron — In Defense of the Rule of Consistency in Federal Conspiracy Cases, 2004 U. Ill. L. Rev 755. Compare Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771 (1998).
¶16In Bucuvalas, 909 F.2d at 593-594, the court held as follows:
“In this appeal, we have occasion to consider the effect of jury verdicts acquitting one alleged conspirator and convicting the sole other alleged conspirator on the same count in the same trial. Specifically, the convicted conspirator argues that the ‘rule of consistency’ — a traditionally recognized exception to the general principle proclaimed in Dunn v. United States, 284 U.S. 390 . . . (1932), that inconsistency in a criminal verdict does not require setting the verdict aside — invalidates his conviction. The defendant relies in large part on our approach in United States v. Bosch Morales, 677 F.2d 1, 3 (1st Cir. 1982), wherein we acknowledged the rule of consistency while recognizing a similar exception to the Dunnrule. In light of the reasoning of United States v. Powell, 469 U.S. 57 . . . (1984), however, we conclude that the rule of consistency embraced by Bosch Moralesis no longer viable. We therefore affirm the judgment.”
¶17In cataloguing the erosion of the rule that acquittal of all other coconspirators compels reversal of a single convicted conspirator under the rule of consistency, the court in United States v. Crayton, 357 F.3d 560, 565-566 (6th Cir.), cert, denied, 542 U.S. 910 (2004), reviews the United States Court of Appeals cases that have abandoned the rule of consistency:
“See United States v. Bucuvalas, 909 F.2d 593, 597 (1st Cir. 1990); United States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990); United States v. Zuniga-Salinas, 952 F.2d 876, 877-[8]79 (5th Cir. 1992) (en banc); United States v. Valles-Valencia, 823 F.2d 381, 381-[3]82 (9th Cir. 1987) ; United States v. Andrews, 850 F.2d 1557, 1560-[15]62 (11th Cir. 1988) (en banc). Other circuits have recognized that the rule of consistency does not survive [United States v. Powell, supra],without actually so holding. United States v. Dakins, 872 F.2d 1061, 1065 (D.C. Cir. 1989) (Powell ‘cast[s] doubt’ upon rule of consistency); United States v. Mancari, 875 F.2d 103, 104 (7th Cir. 1989) (rejection of rule of consistency ‘makes good sense in light of Powell’); Gov’t of the Virgin Islands v. Hoheb, 777 F.2d 138, 142 n.6 (3d Cir. 1985) (rule of consistency ‘may be a vestige of the past’). See also Chad W. Coulter, Comment, The Unnecessary Rule of Consistency in Conspiracy Trials, 135 U. Pa. L. Rev. 223 (1986). The only contrary circuit opinion appears to be that of the Tenth Circuit. In United States v. Suntar Roofing, Inc., 897 F.2d 469 (10th Cir. 1990), that court . . . suggested that the rule of consistency may have continuing vitality.”
¶18It is of interest to note that, while there has been a virtually unrelenting erosion of the rule of consistency in conspiracy law, which would be similarly applicable to joint venture law, in other jurisdictions, there is theoretically a potential difference when it is applied to the crime of aggravated rape by joint venture under G. L. c. 265, § 22(a). That is: the crime of aggravated rape is a substantive offense in which the joint venture is an element of proof of the substantive offense itself. That may distinguish trial on this substantive aggravated rape offense from trials in which joint venture is a theory of proof, rather than an element of proof, and may present a twist in the analysis of the rule of consistency. As was suggested in Getsy v. Mitchell, 456 F.3d 575, 588 n.4 (6th Cir. 2006), vacated en banc on other grounds, 495 F.3d 295 (6th Cir. 2007), the rule of consistency may still apply to capital cases “or to cases involving substantive crimes, such as adultery, incest, bigamy, dueling, or murder for hire, that necessarily involve at least two participants. . . . The law has excused inconsistent verdicts in run-of-the-mill conspiracy cases, but it has not excused inconsistent verdicts on a substantive offense requiring the participation of two people’’ (emphasis added).