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Commonwealth v. Gomes

Supreme Judicial Court of Massachusetts, Bristol

September 13, 2019

COMMONWEALTH
v.
JEAN GOMES.

          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.

          Dana Alan Curhan for the defendant.

          Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

         

          GAZIANO, J.

         In this 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.

         1. Background.

         a. Facts.

         We 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).

         The victim, Jane, [1] 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 upstairs.

         On one 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.

         The 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."

         Jane 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 ...


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