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SJC-11788
COMMONWEALTH vs. MATTHEW TRAYLOR.
Suffolk. February 3, 2015. - July 22, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
JJ.
Child Abuse. Assault and Battery. Reckless Endangerment of a
Child. Constitutional Law, Double jeopardy. Practice,
Criminal, Double jeopardy.
Indictments found and returned in the Superior Court
Department on September 12, 2008.
The cases were tried before Elizabeth M. Fahey, J., and a
motion to stay execution of sentence was heard in the Appeals
Court by Francis R. Fecteau, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
David Hirsch for the defendant.
Kevin J. Curtin, Assistant District Attorney (Elizabeth A.
Dunigan, Assistant District Attorney with him) for the
Commonwealth.
LENK, J. After trial by jury, the defendant was convicted
in the Superior Court of seven indictments charging offenses
2
under G. L. c. 265, § 13J (b). That statute, in relevant part,
imposes criminal penalties on a person who, "having care and
custody of a child, wantonly or recklessly permits bodily injury
[or substantial bodily injury] to such child or wantonly or
recklessly permits another to commit an assault and battery upon
such child, which assault and battery causes bodily injury [or
substantial bodily injury]." Id. The seven separate
indictments did not allege seven different instances on which
the defendant wantonly or recklessly permitted bodily injury to
a child, or seven different victims who were harmed as a result
of the defendant's conduct. Instead, the seven different
indictments were each based on a distinct injury or set of
injuries to the victim, Rory,1 the defendant's son, who was then
approximately four months old.
The defendant appealed, contending, inter alia, that the
indictments were duplicative. Commonwealth v. Traylor, 86 Mass.
App. Ct. 84, 86 (2014). The Appeals Court affirmed, id., and we
granted the defendant's application for further appellate
review. We hold that, to establish multiple violations of G. L.
c. 265, § 13J (b), the Commonwealth must prove either that the
defendant engaged in separate and discrete instances of criminal
1
A pseudonym.
3
conduct, or that multiple victims were harmed as a result of the
defendant's criminal conduct. The Commonwealth may not
establish multiple convictions solely by showing multiple
injuries to a single child. Accordingly, we reverse all but one
of the defendant's convictions.
1. Background. a. Facts at trial. Rory was born in May,
2007. For approximately the first two months of his life, Rory
lived with his mother and the defendant at the defendant's
parents' house in East Bridgewater. The mother then moved to a
house in Woburn, where she lived with Rory; his grandfather; his
aunt; and his approximately seventeen month old sister, Sara,
also the defendant's child.2 The defendant continued to live
with his parents in East Bridgewater, and sometimes stayed at a
cousin's house in Boston. He was engaged to the mother,
however, and maintained regular contact with her and the two
children.
Rory was taken to routine medical appointments on August 7,
2007, and August 15, 2007. At neither appointment did medical
providers notice bruising or any other sign of injury. Shortly
thereafter, the mother, who had been Rory's primary caregiver,
returned to work. The defendant, who was at the time
2
Another pseudonym.
4
unemployed, began to care for Rory most of the time on weekdays
while the mother was at work. He would arrive in the morning
before she left for work, and watch the child until she arrived
home again in the evening. Meanwhile, although Rory's
grandmother was separated from the grandfather and lived
elsewhere, she sometimes came to the house in Woburn to help
care for Sara.
On September 13, 2007, the mother, accompanied by Rory and
the grandmother, went to an appointment at the North Suburban
Women, Infants, and Children (WIC) program in Woburn. Both of
the WIC employees who saw Rory testified that he was crying
unusually at the appointment. The director of the WIC program
indicated that ordinary appointments involve a weight check of
the child, and such weight checks typically were performed with
the child wearing minimal clothing. Both employees testified,
however, that they did not see Rory without his clothes on.
Neither employee observed anything amiss with the child's face.
One employee testified that, when asked about the child's
crying, the mother responded by saying that something in the
office must have been bothering him, and that he was fine until
they came in.
The mother testified to two accidents involving Rory that
occurred after she returned to work. First, she indicated that
5
the defendant called her at work one afternoon to tell her that,
while he was giving Rory and Sara a bath, Rory slipped out of
his hands, and the defendant had to grab Rory by the hand. When
she returned home that evening, she looked at the baby and did
not see any injuries.
Second, on Saturday, September 15, 2007, the mother
attended a birthday party for her cousin. She testified that,
as she was doing her hair in preparation for the party, Rory,
who had been placed in his car seat on the bed, fell off the
bed; Sara may have been rocking the car seat when Rory fell out.
When the mother rushed to pick him up from the floor, he was
crying, and she noticed a red spot on his head. She was able to
soothe him, and continued on to the party. At the party,
various people saw and held Rory. Aside from a bruise on his
head, no one who attended the party saw anything amiss with
Rory.
The mother testified that she did not begin to fear that
something was wrong with the baby until a day or so later. She
noticed that Rory was crying, and that, although he usually had
a big appetite, he did not want his bottle. On Monday morning,
September 17, 2007, the mother and the defendant took Rory to a
local hospital. The receiving nurse observed "a slight red[]
spot on the side of the [child's] forehead, like a little rub
6
mark." The mother told the nurse that he had fallen off a bed.
An X-ray taken at the hospital revealed numerous fractures.
Some fractures were "acute," meaning that they had occurred
within the last seven days. Other fractures showed "callus," a
material that forms as new bone is laid down around the line of
the fracture. Because callus typically does not appear in
infants until at least seven days after an injury, a radiologist
concluded that the injuries were "of differing ages," with some
happening "very close to the time of the [X-ray] film," while
others were "more remote."
Based on the results of the X-ray, Rory was transferred
that day to a hospital in Boston. There, a pediatrician, a
social worker with the then Department of Social Services (DSS)
(now the Department of Children and Families, see St. 2008,
c. 176), and police officers all observed numerous bruises on
the child. Rory had two bruises on his face, above his eye, and
bruising on the chest and abdomen, including one very large
bruise that reached almost around to his back. One bruise
"almost looked like a hand print."
Two DSS social workers spoke with the defendant and the
mother for approximately forty-five minutes while they were at
the Boston hospital. During that interview, the defendant
indicated that he had noticed a few days earlier that Rory was
7
not moving his shoulder very much, and had observed swelling to
the baby's shoulder earlier that morning, when Rory woke up
crying. Based on the nature of the injuries, the social workers
decided to take custody of Rory and Sara. Sara was examined
later at the local hospital where Rory had first been taken;
doctors observed no injuries or signs of abuse.
While they were at the Boston hospital, the mother and the
defendant were approached by officers of the Woburn police
department. During that encounter, the defendant appeared upset
and agitated. Asked for an interview, he responded that "he had
told his story fifty times and that it must be written down
somewhere," and stated that he wanted to leave.
Later that day, however, the defendant appeared at the
Woburn police station and spoke with one of the officers. At
that interview, which was recorded and played for the jury, the
defendant indicated that he had been watching Rory during the
day for the past three or four weeks, since the mother returned
to work. He related both his account of the baby's fall in the
tub, which he said had happened on Monday or Tuesday of the
preceding week, and the mother's account of Rory's fall off the
bed that Saturday. He also admitted that he had seen bruises on
Rory before, indicating that he had mentioned to the child's
pediatrician that Rory seemed to bruise easily. He denied ever
8
having lost his temper with the child, and insisted that the
bruises the officers had observed were not present when he, the
mother, and Rory first arrived at the hospital.
A pediatrician who had reviewed Rory's medical records
testified as an expert witness for the Commonwealth. The expert
detailed various injuries from which Rory suffered, and
indicated that none of the injuries could have resulted from an
accident or clumsy handling. Rory had ten rib fractures on the
right side of his chest, seven of which were sufficiently old
that callus had begun to form, and seven rib fractures on the
left side of his chest, three of which showed callus. Such
injuries, the expert indicated, would have resulted from
"violent squeezing or crushing injuries, such as stepping on an
infant or sitting on an infant." Rory had a fracture of the
tibia, the lower bone in the leg. That injury similarly would
have required a "violent twisting of that leg and bending it
forcefully up." He had a fracture to the iliac crest, the
pelvis bone. That injury was a "very unusual fracture," and
would have required a "tremendous amount of violence and force,"
akin to a motor vehicle accident. Rory had an injury to his
humerus near his right shoulder, in which the bone and the
cartilage had been separated. That injury would have required
"a jerking force, or swinging the child by the arm." He also
9
had lacerations to his spleen and liver. Those injuries too
could not have resulted from "household falls" or "clumsy
handling." Finally, the expert testified that the extensive
bruising on Rory's body was unusual for an infant of three
months, because "[a]n infant who's not rolling, or walking, or
running around, does not have occasion to get bruised."
The expert stated that Rory had no weakness in his bones,
and no blood problem that would cause him to bruise easily. The
expert indicated that Rory could have gotten "maybe two bruises
and two broken bones at the most" from the bathtub fall that the
defendant and the mother described, but that such a fall could
not have caused the lacerations of the spleen and liver.
Similarly, the fall from the car seat could have caused the
fracture to the tibia, but could not have caused the shoulder
injury, and would be unlikely as the cause of the rib injury.
The expert stated that a child of approximately Sara's age would
not have had the strength or hand size to cause the injuries.
The expert testified that the injuries would have caused
Rory distress that would have been obvious to anyone caring for
him. The fractures to the ribs, tibia, and iliac crest would
have been very painful, and he would have cried and fussed
whenever he was held or changed. The laceration to the liver
would have been similarly painful, and would have resulted in
10
"some distension of the[] abdomen" and "irritability and very
likely poor feeding and vomiting."
Nonetheless, none of the individuals who lived in the house
in Woburn with Rory testified that he displayed any such
behavior until the weekend before he was taken to the hospital.
The aunt, who was the mother's sister and was twenty-three years
old at the time, testified that she saw Rory at the party that
Saturday night, and, although she saw a bruise on his forehead,
the child was laughing when she interacted with him. The
grandfather similarly testified that Rory looked "okay" at the
party and was not crying, that he had never seen bruising on
Rory, and that he could not believe it when the social workers
described the injuries Rory had suffered because the baby
"didn't cry like something like that had happened to him." The
grandmother testified that she never saw bruises on Rory and
never saw anyone hurt him.
Finally, the mother, who testified pursuant to a grant of
immunity and whose relationship with the defendant had ended by
the time of her testimony, indicated that she had never seen
bruises on Rory's stomach before he was taken to the hospital in
Boston. She stated that the defendant "was a great father in
[her] eyes." She said, "[W]hen I found out this happened to my
child, . . . I was just wondering how I could have missed it,
11
how I had no idea, you know, all these things happened to my
child." She asserted that she believed that her child had "a
bone disease problem," even though he had not suffered any
additional fractures after September, 2007.
b. Proceedings. The defendant was indicted in September,
2008, on seven different charges of violating G. L. c. 265,
§ 13J. That statute provides, in relevant part:
"Whoever commits an assault and battery upon a child
and by such assault and battery causes substantial bodily
injury shall be punished by imprisonment in the state
prison for not more than five years or imprisonment in the
house of correction for not more than two and one-half
years.
". . .
"Whoever, having care and custody of a child, wantonly
or recklessly permits bodily injury to such child or
wantonly or recklessly permits another to commit an assault
and battery upon such child, which assault and battery
causes bodily injury, shall be punished by imprisonment for
not more than two and one-half years in the house of
correction.
"Whoever, having care and custody of a child, wantonly
or recklessly permits substantial body injury to such child
or wantonly or recklessly permits another to commit an
assault and battery upon such child, which assault and
battery causes substantial bodily injury, shall be punished
by imprisonment in the state prison for not more than five
years, or by imprisonment in a jail or house of correction
for not more than two and one-half years."
G. L. c. 265, § 13J (b).
The first and third indictments charged violations of the
statute resulting in substantial bodily injury. These
12
indictments were based on the lacerated liver and the lacerated
spleen. The remaining five indictments charged violations of
the statute resulting in bodily injury. These were based on the
fractured humerus, the fractured tibia, the fracture to the
iliac crest, the seventeen fractures of the ribs, and the
bruises on much of Rory's body. At no point during the
proceedings in the Superior Court did defense counsel object to
this method of charging the defendant.
The jury returned verdicts of guilty on all seven
indictments. For each indictment, the jury answered special
verdict questions in which they chose between three possible
theories for each count. The first theory was that the
defendant committed an assault and battery, resulting in bodily
injury or substantial bodily injury; the second was that the
defendant, having care and custody of the child, wantonly or
recklessly permitted bodily injury or substantial bodily injury;
the third was that the defendant, having care and custody of the
child, wantonly or recklessly permitted another to commit an
assault and battery upon a child, resulting in bodily injury or
substantial bodily injury. For each indictment, the jury found
the defendant guilty on the final two theories, and not on the
first theory.
As to the first and third indictments, based on the
13
substantial bodily injury involved in the lacerated liver and
the bodily injury involved in the fractured humerus, the judge
sentenced the defendant to consecutive terms of imprisonment of
from two years to two years and one day for the first
indictment, and two and one-half years for the third indictment.
As to the remaining indictments, the judge sentenced the
defendant to five four-year concurrent terms of probation.
The defendant appealed. He argued, for the first time on
appeal, that his multiple convictions based on distinct injuries
or sets of injuries violated the double jeopardy clause of the
Fifth Amendment to the United States Constitution, and that the
evidence was insufficient to support a conviction on any of the
charges. The Appeals Court affirmed the convictions. See
Commonwealth v. Traylor, 86 Mass. App. Ct. 84, 86 (2014). As to
the double jeopardy challenge, the Appeals Court held "that
G. L. c. 265, § 13J (b), reflects a clear legislative intent
that the unit of prosecution may be predicated upon, and
indictments may be brought . . . , for discrete and
particularized injuries to a child occurring while the child is
with a caretaker who commits or recklessly and wantonly permits
the infliction of such injuries upon the child being cared for."
Id. at 88. We granted the defendant's petition for further
appellate review, limited to the double jeopardy claim.
14
2. Discussion. a. Standard of review. "Our case law
provides that unpreserved claims of error" are to "be reviewed
to determine if a substantial risk of a miscarriage of justice
occurred." Commonwealth v. LaChance, 469 Mass. 854, 857 (2014).
See Commonwealth v. Gouse, 461 Mass. 787, 799 (2012). Even if
the issue was unpreserved, we will reverse a duplicative
conviction. See Commonwealth v. Kelly, 470 Mass. 682, 700
(2015); Commonwealth v. Sanchez, 405 Mass. 369, 382 (1989).
Accordingly, we proceed to the merits of the defendant's double
jeopardy claim.
b. Double jeopardy. The Fifth Amendment provides that no
person "shall . . . be subject for the same offense to be twice
put in jeopardy of life or limb." The double jeopardy clause
"protects against three distinct abuses: a second prosecution
for the same offense after acquittal; a second prosecution for
the same offense after conviction; and multiple punishments for
the same offense." Commonwealth v. Crawford, 430 Mass. 683, 699
(2000), quoting Mahoney v. Commonwealth, 415 Mass. 270, 283
(1993). This case implicates the third category of protection.
In evaluating claims of double jeopardy violations, we also
distinguish between two situations. Where a claimed double
jeopardy violation arises from multiple "prosecutions for
different crimes, under different statutes, arising out of the
15
same criminal episode[,] . . . we are required to determine
whether either crime charged is a lesser-included offense of the
other." Commonwealth v. Donovan, 395 Mass. 20, 28 (1985)
(citations and quotation omitted). A different set of issues
arises where, as here, "a single statute is involved and the
issue is whether two [or more] discrete offenses were proved
under that statute rather than a single continuing offense"
(quotation and citation omitted). Id. Then our inquiry
requires statutory interpretation. We ask "what 'unit of
prosecution' was intended by the Legislature as the punishable
act." Commonwealth v. Botev, 79 Mass. App. Ct. 281, 286 (2011),
quoting Commonwealth v. Antonmarchi, 70 Mass. App. Ct. 463, 466
(2007). To determine the appropriate "unit of prosecution," we
"look to the language and purpose of the statute[], to see
whether [it] speak[s] directly to the issue of the appropriate
unit of prosecution." Id., quoting Commonwealth v. Antonmarchi,
supra.
In ascertaining the unit of prosecution, our case law
distinguishes between two broad categories of statutes. On the
one hand, certain criminal statutes are "focused upon the
prevention of violence or physical injury to others." Id. With
respect to that category of offenses, we have held that,
"[w]henever a single criminal transaction gives rise to crimes
16
of violence which are committed against several victims, then
multiple indictments (and punishments)" for the crime against
each victim "are appropriate." Commonwealth v. Donovan, 395
Mass. at 31. See Commonwealth v. Crawford, 430 Mass. at 685-688
(upholding multiple convictions of involuntary manslaughter
based on firing single shot that killed both defendant's girl
friend and her unborn fetus); Commonwealth v. Levia, 385 Mass.
345, 346, 350-351 (1982) (upholding multiple convictions of
masked armed robbery where defendant robbed convenience store at
gunpoint and took money from two different employees);
Commonwealth v. Welansky, 316 Mass. 383, 401 (1944) (upholding
multiple convictions of manslaughter for deaths resulting from
fire at night club owned by defendant); Commonwealth v. Meehan,
14 Mass. App. Ct. 1028, 1028-1029 (1982) (upholding multiple
convictions based on two deaths resulting from vehicular
homicide, because offense "falls within the general category of
homicide offenses" and "[t]hose offenses traditionally have
permitted punishment for each death caused by a defendant's
criminal conduct").
Another broad category of statutes is directed at
"punishing the defendant for conduct offensive to society, as
distinct from punishing the defendant for the effect of that
conduct on particular victims." Commonwealth v. Botev, 79 Mass.
17
App. Ct. at 287. With respect to that category of offenses, a
single instance of unlawful conduct can support only a single
conviction, even if it affected several victims. Id. at 289.
In Commonwealth v. Constantino, 443 Mass. 521, 524 (2005), for
instance, we held that the offense of leaving the scene of an
accident resulting in death, see G. L. c. 90, § 24, was conduct-
focused. Consequently, even where multiple victims died as a
result of a single instance of proscribed conduct, we concluded
that the defendant could be convicted only of one offense under
the statute. See id. at 524. Other statutes that we have
placed in this category are statutes criminalizing possession of
child pornography, see Commonwealth v. Rollins, 470 Mass. 66, 73
(2014); statutes criminalizing the possession of proscribed
drugs, see Commonwealth v. Rabb, 431 Mass. 123, 129-132 (2000);
and statutes criminalizing open and gross lewdness, see
Commonwealth v. Botev, supra at 281-282.
Importantly, with respect to either category, to sustain
multiple convictions of the same offense, the Commonwealth
generally must establish that the convictions are "premised on
. . . distinct criminal act[s]." Commonwealth v. Vick, 454
Mass. 418, 435 (2009). The logic underlying decisions holding
that multiple indictments and multiple punishments are
appropriate where a single criminal transaction harms multiple
18
victims, for instance, is that the single transaction gives rise
to "separate and distinct" crimes of violence as to each victim.
Commonwealth v. Levia, supra at 351. By contrast, where
"multiple convictions and sentences" are not based on distinct
criminal acts, the convictions are permissible only where "the
Legislature has explicitly authorized cumulative punishments."
Commonwealth v. Vick, supra at 435. That rule accords with the
rule of lenity, which demands that we construe criminal statutes
"strictly against the Commonwealth," and that any "ambiguity
concerning the [statute's] ambit . . . [is] resolved in favor of
lenity" (quotation and citation omitted). Commonwealth v.
Donovan, supra at 29.
With these principles in mind, we turn to the language of
the statute. We agree with the Appeals Court that the statute
falls within the general category of offenses directed against
the prevention of violence and injury to others. The statute
appears under "Crimes Against the Person" within the General
Laws, and it specifically references "assault and battery," a
classic crime of violence. Compare Commonwealth v. Meehan, 14
Mass. App. Ct. at 1029.
We see no indication in the language of the statute,
however, to suggest -- much less "explicitly authorize[],"
Commonwealth v. Vick, 454 Mass. at 435 -- cumulative convictions
19
and punishments for a single criminal act against a single
victim, simply because the act results in multiple injuries.
Like other criminal laws, the statute is directed at a
particular form of conduct. The first paragraph of the statute
addresses an act of commission ("[w]hoever commits an assault
and battery upon a child"); the next two paragraphs address acts
of omission ("wantonly or recklessly permit[ting] bodily injury
[or substantial bodily injury] to [a] child" or "wantonly or
recklessly permit[ting] another to commit an assault and battery
upon such child"). Nothing in the language of the statute
indicates a legislative intent to make the resulting injuries,
rather than distinct instances of proscribed conduct or distinct
victims, the unit of prosecution.
The Commonwealth contends that, because the proscribed act
of "permit[ting]" must cause either a "bodily injury" or a
"substantial bodily injury," the Legislature intended that the
injury itself constitute the unit of prosecution. It is not
unusual, however, for a particular form of criminal conduct to
be defined in part by reference to its results. The common-law
offense of "reckless assault and battery," for instance, "is
committed when an individual engages in reckless conduct that
results in a touching producing physical injury to another
person." Commonwealth v. Porro, 458 Mass. 526, 529 (2010). Yet
20
we are aware of no instances in which a defendant has been
charged with multiple indictments for reckless assault and
battery simply because the criminal act caused multiple injuries
to the victim. Indeed, when pressed at oral argument, the
Commonwealth was unable to identify any other crime for which
the unit of prosecution is a distinct injury to the victim,
rather than a separate and distinct criminal act.
The Appeals Court determined that the unit of prosecution
under G. L. c. 265, § 13J (b), is "codified" in the statute's
definitions of "bodily injury" and "substantial bodily injury."
Under these definitions, a "bodily injury" is a "substantial
impairment of the physical condition including any burn,
fracture of any bone, subdural hematoma, injury to any internal
organ, any injury which occurs as the result of repeated harm to
any bodily function or organ including human skin or any
physical condition which substantially imperils a child's health
or welfare." G. L. c. 265, § 13J (a). A substantial bodily
injury is a "bodily injury which creates a permanent
disfigurement, protracted loss or impairment of a function of a
body member, limb or organ, or substantial risk of death." Id.
Again, however, it is common for a criminal statute to
define such terms specifically, and to condition the severity of
the penalty on the degree of injury suffered by the victim. A
21
defendant who commits an assault and battery with a dangerous
weapon, for instance, is subject to heightened penalties where
the offense "causes serious bodily injury." G. L. c. 265,
§ 15A (c) (i). Similarly, a defendant who strangles or
suffocates a victim is subject to heightened penalties where
"such strangulation or suffocation causes serious bodily
injury." G. L. c. 265, § 15D, inserted by St. 2014, c. 260,
§ 24. Each of these statutes expressly defines "serious bodily
injury," in terms that resemble the definition of "substantial
bodily injury" in the statute at issue here. Compare G. L.
c. 265, § 13J (a), with G. L. c. 265, § 15A (d) (defining
"serious bodily injury" as "bodily injury which results in a
permanent disfigurement, loss or impairment of a bodily
function, limb or organ, or a substantial risk of death"). See
also G. L. c. 265, § 15D (a). Yet, we have never held that
multiple convictions under either statute may be based on
multiple injuries to a single victim, unless the Commonwealth
proves that each injury resulted from a distinct criminal act.
The Appeals Court's determination was based also on its
view that G. L. c. 265, § 13J (b), was intended to "prevent
violence perpetrated upon children who are ever so vulnerable in
the caretaking setting." Commonwealth v. Traylor, 86 Mass. App.
Ct. 84, 89 (2014). Plainly, the intent underlying the statute
22
is to protect children against violence and injury. The
enactment of the statute was prompted by a decision of this
court holding that a parent could not be convicted as an
accessory before the fact for failing to take reasonable steps
to prevent sexual attacks on a minor child. Commonwealth v.
Raposo, 413 Mass. 182, 188-89 (1992); Commonwealth v. Garcia, 47
Mass. App. Ct. 419, 419-420 (1999). To that end, as noted, the
statute criminalizes acts of omission in addition to acts of
commission, Commonwealth v. Garcia, supra at 422-423, and a
defendant may be convicted under the statute even in the absence
of proof regarding precisely how the injuries to the child
occurred. See Commonwealth v. Rodriques, 462 Mass. 415, 422-424
(2012). It does not follow, however, that, because the
Legislature limited the elements that the Commonwealth must
prove to establish a violation under the statute, the
Legislature also must have intended to allow the Commonwealth to
prove multiple violations without establishing more than a
single instance of criminal conduct directed at a single victim.
Indeed, because the proof offered to establish a violation of
the statute often consists merely of evidence that a child was
"left in the custody of an identified adult" and then
"suffer[ed] injuries of a type that are inconsistent with the
explanation given by the custodian and not attributable in the
23
circumstances to ordinary accidental causes," the consequences
of defining the particular injury as the unit of prosecution
would be especially severe. See Commonwealth v. Roman, 43 Mass.
App. Ct. 733, 735 (1997), S.C., 427 Mass. 1006 (1998). Because
the statute does not expressly so define the unit of
prosecution, the rule of lenity demands that we construe the
statute strictly in favor of the defendant, by requiring the
Commonwealth to establish separate and discrete acts of
"permit[ting]," or multiple victims harmed by the proscribed
conduct, in order to sustain multiple convictions under the
second and third paragraphs of G. L. c. 265, § 13J (b).
Finally, the Appeals Court determined that its
interpretation of the appropriate "unit of prosecution" was
consistent with the statute's "staircasing of . . . penalties,"
whereby "harsher penalties" were imposed "for acts and omissions
that lead to substantial bodily injury versus less serious
bodily injury." Commonwealth v. Traylor, 86 Mass. App. Ct. at
91. Again, however, linking a harsher penalty with a showing
that the proscribed conduct resulted in more severe injury is
hardly unusual, yet it has not led us previously to conclude
that the appropriate "unit of prosecution" for a crime is a
distinct injury. Additionally, the interpretation urged by the
Commonwealth, and embraced by the Appeals Court, might well
24
subvert the "staircasing of . . . penalties" articulated in the
statute. Under G. L. c. 265, § 13J (b), the maximum sentence
for conduct that results in substantial bodily injury is twice
as long as the maximum sentence for conduct that results in
bodily injury. Under the interpretation urged by the
Commonwealth, however, multiple minor bodily injuries such as
bruises could, even if they were all the result of a single
instance of proscribed conduct, result in a sentence many times
longer than the sentence for a similar criminal act that results
in "substantial bodily injury."
We are sensitive to the need to protect children against
violence and injury in the caretaking setting. As noted
earlier, the statute already provides this protection in various
ways, by criminalizing acts of omission in addition to acts of
commission, by not requiring the Commonwealth to prove precisely
how the injuries occurred, and by imposing stricter penalties
where a defendant's conduct results in a substantial bodily
injury as opposed to a bodily injury. Because the double
jeopardy clause imposes "few, if any, limitations . . . on the
legislative power to define offenses," Commonwealth v. Levia,
385 Mass. 345, 347 (1982), moreover, the Legislature could, if
it wished, amend the statute expressly to define separate and
discrete injuries to a child as the appropriate unit of
25
prosecution. Absent any textual support to indicate that the
Legislature has adopted each discrete injury as the unit of
prosecution, however, and in light of the extreme novelty of
that theory and the severity of its consequences for defendants,
we reject that theory. Instead, we hold that, to sustain
multiple convictions under the statute, the Commonwealth must
establish either separate and discrete instances in which a
defendant engaged in the proscribed conduct, or that multiple
victims were harmed as a result of a defendant's conduct.
c. Consequences of the double jeopardy determination.
Having determined that the multiple indictments under G. L.
c. 265, § 13J (b), violated the defendant's rights under the
double jeopardy clause, we must ascertain the consequences of
that determination. On appeal, the defendant argues that all
but two of his convictions must be reversed. He notes that the
Commonwealth's expert testified that the injuries charged
occurred on "at least two occasions," and that it consequently
would "be speculative to assume that there were more than two
occasions" on which the defendant engaged in the proscribed
conduct. The Commonwealth, on the other hand, contends that,
even if we accept the defendant's double jeopardy argument, five
of the seven convictions should stand. The Commonwealth's
argument is essentially that the evidence supported a
26
determination of "five separate instances of abuse." The
Commonwealth acknowledges that "there was no evidence that the
injury to the liver and the injury to the spleen . . . occurred
at different times"; assumes for the sake of argument that the
fractured tibia and the fractured iliac crest "could have
happened at the same time"; and accepts that "it is conceivable
that the 'finger-like' bruises to the abdomen might have
occurred at or near the time of the more recent rib fractures on
the left side of [Rory's] body." The Commonwealth asserts,
however, that the evidence supported the conclusion that other
rib fractures and the fractured humerus resulted from distinct
acts of abuse, leading to a total of "five separate instances of
abuse."
In our view, both parties' arguments miss the mark. As an
initial matter, the conduct proscribed by G. L. c. 265, § 13J,
as relevant to this case, is the act of "wantonly or recklessly
permit[ting] bodily injury to [a] child or wantonly or
recklessly permit[ting] another to commit an assault and battery
upon a child." To sustain multiple convictions under those
provisions for injuries inflicted on a single victim, therefore,
the Commonwealth must establish multiple instances on which the
defendant engaged in the proscribed act of "permit[ting]." The
Commonwealth may not sustain multiple convictions, as its
27
argument suggests, simply by showing that the injuries were the
result of discrete acts of abuse, without showing that each of
these acts of abuse was in turn enabled by a discrete act of
"permit[ting]."
Furthermore, in discussing which of the potentially
duplicative convictions must be vacated, both parties focus on
the question whether the evidence presented to the jury was
sufficient to support a finding of a certain number of separate
and discrete instances of proscribed conduct by the defendant.
In instructing the jury on the second and the third theories,
however, the judge did not state that the jury had to find
separate and distinct instances of proscribed conduct. Instead,
the instructions suggested -- consistent with the indictments at
issue -- that the jury needed only to find separate injuries in
order to return verdicts of guilt on seven indictments. The
judge stated:
"You may find [the defendant] guilty only if you are
unanimously agreed that the Commonwealth has proven beyond
a reasonable doubt that [the defendant] committed the
offense on at least one specific occasion during the time
period alleged in the indictment. It is not necessary for
the Commonwealth to prove or for you to agree that the
offense was also committed on more than one occasion.
However, you must unanimous[ly] agree that the Commonwealth
has proven that [the defendant] committed the offense on at
least one occasion during the time period alleged in the
indictment."
We have held that, "[w]here . . . the judge does not
28
clearly instruct the jury that they must find that the defendant
committed separate and distinct criminal acts to convict on"
multiple charges, the resulting convictions "must be vacated as
duplicative, even in the absence of an objection, if there is
any significant possibility that the jury may have based [the]
convictions . . . on the same act or series of acts (emphasis
added)." Commonwealth v. Kelly, 470 Mass. 682, 700 (2015). In
Commonwealth v. Kelly, supra at 698-702, for instance, a
defendant was convicted of two counts of assault and battery.
Both charges stemmed from a series of events beginning at a
house party, during which the defendant allegedly pushed,
tackled, punched, and kicked the victim, another partygoer. Id.
at 699. Although these distinct acts could have supported
multiple convictions of assault and battery, the judge had
failed either "to instruct on separate and distinct acts[]
or . . . to make clear to the jury which alleged acts
corresponded to which charges." Id. Accordingly, even though
the defendant had not objected to the jury instructions at
trial, we reversed one of the two assault and battery
convictions, concluding that there was a significant possibility
that the convictions were based on the same criminal act. Id.
at 699, 702.
Here, likewise, the jury were not instructed properly that
29
they had to find multiple acts of "permit[ting]" to sustain
multiple convictions; instead, they were told explicitly that
they needed only to find a single act of "permit[ting]." And
while the Commonwealth offered evidence to suggest that five of
the victim's seven injuries or sets of injuries resulted from
distinct acts of abuse, the Commonwealth did not offer evidence
to show that each of these acts of abuse was enabled by a
discrete act of "permit[ting]" by the defendant.
It cannot be said, therefore, that there is no significant
possibility that the defendant's convictions rested on a single,
undivided act of proscribed "permit[ting]." True, the
Commonwealth offered some evidence that the injuries occurred on
"at least two occasions." But even that evidence was severely
limited, consisting solely of testimony from the hospital's
radiologist and the Commonwealth's expert that certain rib
fractures showed "callus," while the other fractures did not,
and that callus requires at least seven days to emerge. Defense
counsel aggressively challenged that testimony on cross-
examination. Even if the jury did believe that certain rib
fractures originated on an earlier date than the other injuries,
moreover, that does not mean that the jury also would have found
that the defendant was criminally responsible for "permit[ting]"
those earlier injuries. All of the rib fractures -- both old
30
and new -- were charged together in a single indictment. The
jury could have believed that the earlier fractures were the
result of a noncriminal accident (the fall in the bathtub that
the defendant and the mother described, for instance), while
believing that the other rib fractures and the remaining
injuries were the result of a criminal act of "permit[ting]."
The jury could have disbelieved the expert's testimony that the
earlier rib fractures would have resulted in obvious signs of
distress, and instead credited the testimony of the multiple
witnesses who testified that they did not see any sign that Rory
was in distress until a few days before he was taken to the
hospital.
Finally, while the defendant asks only that this court
reverse five (rather than six) of his seven convictions, this
request is predicated on the assumption that potentially
duplicative convictions must be reversed unless there was
sufficient evidence from which a properly instructed jury could
have convicted the defendant of multiple counts. As noted
above, however, that is not the proper framework of analysis.
Because the limitation on the relief that the defendant requests
is premised on a mistaken apprehension of the law, we do not
treat it as a waiver. Although waiver ordinarily would preclude
this court from considering issues, claims, or grounds for
31
relief that are not raised by the parties, where, as here, a
valid constitutional claim is properly before this court, the
doctrine does not compel us to replicate the parties' legal
errors in ordering an appropriate remedy.
In Burks v. United States, 437 U.S. 1, 16-17 (1978), the
United States Supreme Court held that, where an appellate court
determines that the evidence presented at a trial against a
defendant was legally insufficient, the only proper remedy is
the direction of a judgment of acquittal. The Court further
observed: "In our view it makes no difference that a defendant
has sought a new trial as one of his remedies, or even as the
sole remedy," explaining that "[i]t cannot be meaningfully said
that a person 'waives' his right to a judgment of acquittal by
moving for a new trial." Id. at 17. The Court concluded:
"Since we hold today that the Double Jeopardy Clause precludes a
second trial once the reviewing court has found the evidence
legally insufficient, the only 'just' remedy available for that
court is the direction of a judgment of acquittal." Id. at 18.
Here, similarly, it makes no difference for our analysis
that the defendant concedes that there was sufficient evidence
from which a properly instructed jury could have found two
distinct violations of G. L. c. 265, § 13J. The jury were not
properly instructed, and the test in such circumstances is not
32
whether there was sufficient evidence to support multiple
convictions, but whether there is any significant possibility
that the multiple convictions were based on the same act.
Because we hold that there was a significant possibility that
all of the defendant's convictions were based on a jury finding
of a single violation of the statute, the only just remedy is
for the court to reverse all but one conviction.
3. Conclusion. Because the verdict indicates that the
jury found at least one occasion of criminal "permit[ting]"
under the statute, and that the act of "permit[ting]" resulted
in "substantial bodily injury" as defined by the statute, one
conviction of a violation of the statute resulting in
substantial bodily injury may stand. There is a significant
possibility, however, that the remaining six convictions -- one
of a violation resulting in substantial bodily injury, and five
of violations resulting in bodily injury -- rest on the same act
of "permit[ting]." Accordingly, those convictions must be
reversed. The matter is remanded to the Superior Court for
entry of orders consistent with this decision, and for
resentencing.
So ordered.