Commonwealth v. Traylor, 472 Mass. 260

Background

Infant Rory (≈4 months) was brought to hospital with multiple injuries: rib fractures of differing ages, fractured tibia, fractured humerus, fractured iliac crest, lacerated liver and spleen, and extensive bruising. Medical experts testified many injuries required violent force and were of differing ages.
Defendant was Rory’s father/caretaker; mother testified pursuant to immunity. No other household witness reported seeing distress until days before hospitalization.
Seven indictments under G. L. c. 265, § 13J(b) charged the defendant for permitted or allowed assault/battery causing either bodily injury (five counts) or substantial bodily injury (two counts), each count keyed to a distinct injury or set of injuries to Rory.
Jury convicted on all seven counts, finding guilt on theories of omission (wantonly or recklessly permitting injury or permitting another to assault) but not on direct assault. Sentences: two significant terms for two counts; probation for the others. Defense did not object to the charging schema or jury instructions at trial.
On appeal, defendant raised (for the first time) that multiple convictions were duplicative and violated double jeopardy; Appeals Court affirmed. Supreme Judicial Court granted further review limited to double jeopardy.

Issues

Issue	Commonwealth's Argument	Traylor's Argument	Held
Whether multiple convictions under G. L. c. 265, § 13J(b) may be predicated on multiple distinct injuries to a single child arising from a single course of conduct	The statute’s injury-focused language ("bodily injury" / "substantial bodily injury") and definitions show Legislature intended each discrete injury to be a unit of prosecution, so multiple injuries can support multiple counts	Multiple convictions require proof of separate and discrete instances of the proscribed conduct (separate acts of "permitting") or multiple victims; multiple injuries to a single victim from a single instance of omission cannot alone support multiple convictions	Reversed: multiple convictions cannot rest solely on multiple injuries to one child; the Commonwealth must prove separate discrete instances of the prohibited omission/permit or multiple victims. Only one conviction may stand.
Whether jury instructions and verdict form were sufficient to permit multiple convictions	N/A (Commonwealth defended convictions on sufficiency and number of incidents)	Jury was not instructed that separate and distinct acts of "permitting" were required; thus there is a significant possibility convictions rested on same act	Because instructions allowed conviction based merely on separate injuries rather than discrete acts of "permitting," there was a significant possibility the jury based multiple convictions on the same act; vacate all but one conviction.
Remedy when appellate court finds duplicative convictions where jury may have relied on same act	Commonwealth urged upholding multiple counts where evidence could support multiple instances	Only a single conviction should remain; duplicative convictions must be reversed even if some evidence might support multiple incidents	Under double jeopardy principles (and Burks), where duplicative convictions may rest on the same act and jury not properly instructed, the proper remedy is reversal of duplicative convictions and affirmance of one valid conviction.
Proper interpretation of unit of prosecution for § 13J(b) (statutory construction)	The statute’s structure and definitions demonstrate an injury-focused unit of prosecution	§ 13J(b) targets proscribed conduct (omission or permitting); unit of prosecution is discrete acts of conduct or separate victims, not each injury	Statute construed in favor of lenity: unit of prosecution is separate and discrete acts of permitting (or separate victims), not each discrete injury to the same child.

Key Cases Cited

Burks v. United States, 437 U.S. 1 (1978) (when evidence is legally insufficient, double jeopardy bars retrial and judgment of acquittal is the remedy)
Commonwealth v. Kelly, 470 Mass. 682 (2015) (vacating duplicative convictions where jury could have based multiple verdicts on the same act because jury was not instructed to find separate acts)
Commonwealth v. Vick, 454 Mass. 418 (2009) (multiple convictions require distinct criminal acts unless Legislature plainly authorized cumulative punishment)
Commonwealth v. Donovan, 395 Mass. 20 (1985) (distinguishing unit-of-prosecution analysis when a single statute is involved and instructing courts to construe criminal statutes to determine intended unit)
Commonwealth v. Constantino, 443 Mass. 521 (2005) (holding statute focused on defendant’s conduct, not multiple victims, limits unit of prosecution)
Commonwealth v. Levia, 385 Mass. 345 (1982) (permitting multiple convictions when a single criminal transaction causes harm to several victims)
Commonwealth v. Porro, 458 Mass. 526 (2010) (discussing reckless assault/battery as conduct-focused offense)
Commonwealth v. Crawford, 430 Mass. 683 (2000) (permitting multiple homicide-related convictions where single act harmed multiple victims)