Heard: May 6, 2019.
Indictment found and returned in the Superior Court
Department on January 22, 2015. The case was tried before
Raymond P. Veary, Jr., J. The Supreme Judicial Court on its
own initiative transferred the case from the Appeals Court.
Alan Curhan for the defendant.
L. Gauthier, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
case, we must determine whether the defendant's
conviction of indecent assault and battery on a child under
the age of fourteen, G. L. c. 265, § 13B, was aggravated
by his status as an alleged mandated reporter at the time of
the offense. See G. L. c. 265, § 13B 1/2 (b). Because
there was no evidence that the defendant was acting in his
professional capacity when he committed the offense, we must
conclude that the judge erred in denying the defendant's
motion for a required finding of not guilty as to G. L. c.
265, § 13B 1/2 (b). We also conclude, however, that
there was sufficient evidence to convict the defendant of the
lesser included offense. G. L. c. 265, § 13B.
recite the facts the jury could have found, in the light most
favorable to the Commonwealth. See Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979).
victim, Jane,  lived in New Bedford with her mother
and her grandmother. Her adult cousin lived in a nearby
apartment. The defendant met and began dating Jane's
mother when Jane was approximately eighteen months old. The
two dated "on and off" for approximately ten years.
Throughout that period, the defendant was a police officer in
a K-9 unit. He was trained as a mandated reporter. The
defendant often visited the mother's house. Frequently,
he, the mother, and Jane watched television together, or Jane
and the defendant watched television while the mother was
occasion when Jane was approximately eight years old, she,
the mother, and the defendant went to Jane's cousin's
apartment so that the defendant could repair a broken
television stand. The defendant was in plain clothes. Upon
arriving at the apartment, he went upstairs to inspect the
television stand. Jane remained downstairs, where she sat on
a couch and watched television.
defendant later came downstairs, and sat on the couch near
Jane. He tickled her. She then "ended up on his
lap," such that she was "facing out," away
from the defendant. The defendant clasped Jane's waist
with his hands and repeatedly pushed her downward while
thrusting his "private area" upward into Jane's
"butt." The defendant then told Jane "not to
tell anybody because he'd get into trouble."
said that, although the defendant's conduct made her
"uncomfortable," she thought that his actions were
normal. Later, when Jane was approximately ten years old, she
told one of her friends about the defendant's conduct.
Several days later, the friend informed her mother about what
Jane had said. The friend's mother then contacted
Jane's mother, who apparently filed a police report. By
that time, Jane had come to regard the ...