Commonwealth v. Gomes, 483 Mass. 123

Summary

The Massachusetts Supreme Judicial Court held that conviction under G. L. c. 265, § 13B 1/2(b), requires proof that the defendant was acting in a professional capacity as a mandated reporter when the offense occurred. Because the evidence showed that the defendant, a police officer, was not acting professionally at the time of the conduct, the enhanced conviction was vacated. The court remanded for entry of judgment on the lesser included offense of indecent assault and battery on a child under fourteen and for resentencing.

Holdings

1. The evidence was sufficient for a rational jury to find beyond a reasonable doubt that the defendant intentionally touched the child indecently.
2. To convict a defendant under G. L. c. 265, § 13B 1/2 (b), the Commonwealth must prove beyond a reasonable doubt that, at the time of the offense, the defendant was a mandated reporter acting in a professional capacity.
3. The trial judge should have allowed the defendant's motion for a required finding of not guilty because the Commonwealth presented no evidence that he was acting in his professional capacity when the offense occurred.
4. The ineffective-assistance argument was unavailing because the trial judge's erroneous ruling that a police officer was necessarily a mandated reporter foreclosed the lesser-included-offense instruction.

Questions Presented

1. Whether the evidence was sufficient to prove that the defendant's touching of the child was indecent for purposes of G. L. c. 265, § 13B.
2. Whether conviction under G. L. c. 265, § 13B 1/2 (b), requires proof beyond a reasonable doubt that the defendant was acting in a professional capacity as a mandated reporter at the time of the offense.
3. Whether the defendant was entitled to a required finding of not guilty on the mandated-reporter enhancement when the Commonwealth presented no evidence that he acted in his professional capacity.
4. Whether trial counsel was ineffective for failing to request a lesser-included-offense instruction.

Disposition

reversed_and_remanded