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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 conductfocused. 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 crossexamination. 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.