Commonwealth v. Traylor

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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.