Commonwealth v. James Gagne.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1049

COMMONWEALTH

vs.

JAMES GAGNE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, James Gagne, appeals from his conviction of

indecent assault and battery and from the denial of his

postconviction motion for entry of a finding of not guilty or

reduction of the verdict. See Mass. R. Crim. P. 25 (b) (2), as

amended, 420 Mass. 1502 (1995) (rule 25 [b] [2]). The defendant

contends that (1) the evidence of his intent was legally

insufficient to convict; (2) a substantial risk of a miscarriage

of justice arose from first complaint testimony that was

redundant of the victim's testimony; (3) the judge should have

instructed on accident, and the error was compounded by the

prosecutor's closing argument; (4) the judge should have reduced

the verdict for indecent assault and battery to the lesser-
included offense of assault and battery, because on the verdict

slip the jury specified that the defendant was guilty of both

crimes; and (5) in sentencing, the judge impermissibly

considered unrelated affidavits underlying G. L. c. 209A orders

against the defendant. We affirm.

Background. Based on the trial evidence, the jury could

have found as follows. At about 10:30 P.M. on Saturday, August

4, 2018, the victim met two women friends at a sports bar. The

defendant was "bothering" the women by "saying stuff" to them

and trying to put his arms around them.

The defendant sat at the bar next to the victim. The

defendant put his right hand on her left pant leg and quickly

"ran his hand from [her] knee up into [her] vagina." Feeling

violated, the victim jumped up and yelled angrily, "Keep your

hands off me. Did you just fucking touch me?" The victim told

her friends, "He just touched my vagina." A bartender ejected

the defendant from the bar.

The victim went outside the bar, where one of her friends

was smoking. The victim was very upset and looked as if she had

been crying. The victim told her friend that the defendant had

grabbed her inappropriately between her legs.

On August 7, 2018, a detective spoke with the defendant by

telephone. The defendant said he had had "a bad weekend" and

had been intoxicated at the bar.

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After trial, the jury convicted the defendant of indecent

assault and battery on a person fourteen years or older. The

defendant filed a timely notice of appeal. Almost three years

after trial, the defendant filed a rule 25 (b) (2) motion for

entry of a required finding of not guilty or reduction of the

verdict. Despite its untimeliness, the judge considered the

motion and denied it. The defendant appeals from his conviction

and from the denial of his rule 25 (b) (2) motion.

Discussion. 1. Sufficiency of evidence. The defendant

argues that the Commonwealth did not prove that he "acted with

criminal intent" when he touched the victim. We review the

record asking whether, "taking the evidence and all reasonable

inferences that may be drawn therefrom in the light most

favorable to the Commonwealth, any rational trier of fact could

find that each of the essential elements of the crime has been

proved beyond a reasonable doubt." Commonwealth v. Gonzalez

Santos, 100 Mass. App. Ct. 1, 3 (2021). See Commonwealth v.

Latimore, 378 Mass. 671, 677-678 (1979).

"Indecent assault and battery on a person age fourteen or

over is the 'intentional, unprivileged, and indecent touching of

the victim.'" Commonwealth v. Lahens, 100 Mass. App. Ct. 310,

319 (2021), quoting Commonwealth v. Melo, 95 Mass. App. Ct. 257,

261-262 (2019). See G. L. c. 265, § 13H. As the defendant

acknowledges, indecent assault and battery is a general intent

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crime. Commonwealth v. Butler, 97 Mass. App. Ct. 223, 232

(2020). The Commonwealth therefore was required to prove the

defendant "intended . . . to commit an indecent or offensive

touching of the complainant without her consent." Commonwealth

v. Marzilli, 457 Mass. 64, 67 (2010), abrogated in part on other

grounds by Commonwealth v. LaBrie, 473 Mass. 754, 763-764

(2016).

Based on the victim's testimony, there was sufficient

evidence from which the jury could infer, in the light most

favorable to the Commonwealth, that the defendant intentionally

touched the victim on an area of her body considered private.

See Lahens, 100 Mass. App. Ct. at 320. See also Commonwealth v.

Lavigne, 42 Mass. App. Ct. 313, 315 (1997) (anatomy considered

private includes genital area). Simply because the victim

testified that the defendant touched her vaginal area "very

fast" did not render the proof insufficient. Contrary to the

defendant's argument, the jury could infer his intent from the

evidence of his conduct.

2. First complaint. The defendant argues that a

substantial risk of a miscarriage of justice arose when the

Commonwealth introduced first complaint testimony of the

victim's friend that, outside the bar, the victim disclosed that

the defendant had grabbed her inappropriately between her legs.

He contends that the friend's testimony was cumulative of the

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victim's testimony that, inside the bar, she told her friend

that the defendant "just touched my vagina." He further argues

that because the Commonwealth introduced the victim's excited

utterances, it "had no need" to call the first complaint

witness. Both arguments are meritless.

Our first complaint doctrine permits both a sexual assault

victim and a first complaint witness to testify "about the

details of the complaint," and on cross-examination the

defendant may "draw to the jury's attention any discrepancies"

between their versions. Commonwealth v. King, 445 Mass. 217,

245 (2005), cert. denied, 546 U.S. 1216 (2006). See also

Commonwealth v. Aviles, 461 Mass. 60, 68 (2011) ("Where a first

complaint witness testifies at trial regarding the complaint,

the complainant also may testify about the details of the first

complaint and the reasons why it was made at that particular

time"). We review a trial judge's ruling to admit first

complaint testimony for an abuse of discretion. Id. at 73. See

Mass. G. Evid. § 413 (2021).

The judge's admission of first complaint testimony

comported with that doctrine. Before trial, the parties filed

motions in limine on the admissibility of first complaint

testimony. After conducting voir dire examinations of the

victim and her friend, the judge ruled that the friend, and not

the victim's boyfriend, was the first complaint witness. During

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trial, just before the victim testified that she told her

friends inside the bar that the defendant had touched her

vagina, the judge gave a limiting instruction as directed by

King, 445 Mass. at 247-248. Before the first complaint witness

testified, the judge repeated the instruction. We discern no

abuse of the judge's discretion.

Nor are we persuaded by the defendant's argument that the

judge should have ruled that the Commonwealth did not "need" to

introduce first complaint testimony because the jury heard

evidence of the victim's excited utterances including, "Keep

your hands off me." The excited utterances conveyed different

information than the first complaint, and in any event the first

complaint doctrine does not "prohibit the admissibility of

evidence that, while barred by that doctrine, is otherwise

independently admissible." Aviles, 461 Mass. at 69, quoting

Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009). The judge

was not required to second-guess the Commonwealth's decision to

offer the evidence.

3. Lack of accident instruction. The defendant next

argues that the judge erred by declining to instruct the jury on

the possibility that his touching the victim was an accident,

and the supposed error was compounded by the prosecutor's

closing argument.

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"Where the evidence fairly raises the possibility of

accident, the defendant is entitled, if he requests, to have the

judge instruct the jury that the Commonwealth has the burden of

proving beyond a reasonable doubt that the [act] was not

accidental." Commonwealth v. Jewett, 442 Mass. 356, 370 (2004).

If there is "some evidence which warranted a finding that the

touching had been accidental" the judge should give an accident

instruction. Commonwealth v. Maloney, 23 Mass. App. Ct. 1016,

1016 (1987). Because the defendant objected to the absence of

an accident instruction, we review for prejudicial error.

At the charge conference, defense counsel argued that

grounds for an accident instruction arose from evidence that the

touching was brief, the defendant is "a large man," he told the

detective that his only memory of the evening was that he was

intoxicated and bought a round of drinks, and from the lack of

evidence that he said anything to the victim before touching

her. After reviewing case law, the judge ruled that the

evidence was insufficient to give rise to an accident

instruction.

We discern no prejudicial error in the judge's ruling that

the trial evidence did not fairly raise the possibility of an

accident. See Jewett, 442 Mass. at 370. As the judge pointed

out, evidence of the defendant's intoxication did not raise that

possibility. The defendant had been bothering the victim's

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friends and trying to put his arms around them. The defendant

ran his hand from the victim's knee all the way up her thigh to

her vaginal area. Contrast Maloney, supra at 1016 (evidence

that defendant squeezed ten year old victim's genitals during

wrestling match warranted instruction that touching may have

been accidental). The defendant told the detective that he had

had "a bad weekend"; he never said he touched the victim by

accident. Contrast Commonwealth v. Childs, 94 Mass. App. Ct.

67, 73 (2018) (judge instructed on accident based on defendant's

statement to police that he possibly "brushed up against [victim

and her sister] and maybe touched their breast or something as

an accident").

As for the defendant's argument that the prosecutor

exacerbated the absence of an accident instruction by "focusing

only on [the victim]'s credibility," the short answer is that

the victim's testimony alone sufficed to support the defendant's

conviction, see Gonzalez Santos, 100 Mass. App. Ct. at 3,

including by dispelling any fair possibility of accident.

4. Request for reduction of verdict. The defendant argues

that we should order reduction of the verdict to assault and

battery, because of issues including a supposed ambiguity in the

verdict slip. He cites no authority for the proposition that an

intermediate appellate court has the power to grant the relief

he requests. Contrast Commonwealth v. Woodward, 427 Mass. 659,

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666 (1998) (comparing authority of trial judge to reduce verdict

under rule 25 [b] [2] to that of Supreme Judicial Court under

G. L. c. 278, § 33E). If we did have that power, we would not

exercise it in this case.

We are not persuaded by the defendant's claim that the

verdict slip was ambiguous. The defendant was tried on a single

count of indecent assault and battery. At his request, the

judge instructed the jury on the lesser-included offense of

assault and battery. The verdict slip, to which the defendant

did not object, listed both offenses. After deliberations, the

jury returned a verdict for indecent assault and battery. On

the verdict slip, the jury had marked "guilty" for both that

offense and the lesser-included offense of assault and battery.

In open court, the jury affirmed both verdicts. The defendant

did not move to poll the jury. After the jury was discharged,

the judge stated that the lesser included assault and battery

charge "is subsumed in the decision of their guilty verdict" and

that "[he] will take no action on the lesser included [charge]."

Because the defendant did not object to the verdict slip or

seek to poll the jury, we review his claim that it was ambiguous

for a substantial risk of a miscarriage of justice. Cf.

Commonwealth v. Phuon, 486 Mass. 35, 38 (2020) (in murder in the

first degree case, reviewing similar unpreserved claim for

substantial likelihood of miscarriage of justice). We conclude

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that there was no such risk. The mere fact that on the verdict

slip the jury marked an "X" next to "GUILTY" under the heading

"LESSER INCLUDED OFFENSE: A & B" did not render ambiguous their

verdict on the offense as charged, indecent assault and battery.

See id. (verdict slip on which jury marked both murder in the

first and second degrees not ambiguous). Moreover, the jury's

verdict was what was "announced by the foreperson in open court

and affirmed unanimously by the jury." Id. at 39.

As for the defendant's argument that the judge should have

allowed his rule 25 (b) (2) motion and reduced the verdict to

assault and battery for reasons including "troubling questions"

about the verdict slip, it is unavailing. In denying the

motion, the judge ruled, "the court declines to exercise its

power to reduce the jury verdict to the lesser included offense

of assault and battery, where the weight of the evidence does

not point to the lesser offense and where the reduction of the

jury verdict would not be more consonant with justice. See

Commonwealth v. Pfeiffer, 492 Mass. 440 (2023)." Putting aside

the question whether we would have the power to reduce the

verdict, we defer to the assessment of the trial judge, who "has

the advantage of face to face evaluation of the witnesses and

the evidence at trial." Id. at 446. Contrast Commonwealth v.

Walker, 68 Mass. App. Ct. 194, 197-198 (2007) (where verdict for

assault with intent to rape was based on sufficient evidence,

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judge abused discretion by reducing verdict). We discern no

error in the trial judge's denial of the rule 25 (b) (2) motion.

5. Sentencing. Finally, the defendant requests that we

remand his case to the trial court for resentencing because, he

contends, the judge considered "outdated and unreliable evidence

of uncharged conduct" in sentencing. We disagree.

At sentencing, the defendant provided the judge with three

letters attesting to his good character, and from them his

counsel argued that this offense was "an anomaly." After

reviewing the defendant's criminal record, the judge noted that

it appeared that the defendant had "an alcohol issue" and that

two different women had obtained restraining orders against him.

The judge stated that he had "asked the clerk to pull those

affidavits," and took a recess while he reviewed them. After

providing counsel with the opportunity to review the affidavits,

the judge stated that they "paint a different picture" of the

defendant, inferring from them that, when the defendant was

drinking, "his respect for women . . . leaves a lot to be

desired." The judge stated he was "fully cognizant of the fact

that [the affidavits] were ex parte filed" and that the related

restraining orders "terminated after a short period of time."

The judge then sentenced the defendant to two years in the house

of correction, with nine months to serve and the balance

suspended for two years. That sentence was within the bounds of

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the indecent assault and battery statute, which limits a

sentence to "not more than five years." G. L. c. 265, § 13H.

"Although a trial judge is not permitted to punish someone

for uncharged conduct, such conduct may be considered as bearing

on the defendant's character and his amenability to

rehabilitation" (quotations and citation omitted). Commonwealth

v. Wallace, 76 Mass. App. Ct. 411, 419 (2010). From the judge's

comments at sentencing, we discern no "reason to think [he] may

have considered uncharged conduct for an improper purpose."

Commonwealth v. Suarez, 95 Mass. App. Ct. 562, 577 (2019). We

read the judge's comments as showing that he weighed the

affidavits in comparison to the three character references

provided by the defendant. The judge did not imply that he was

punishing the defendant based on the behavior outlined in the

affidavits. Contrast id. (judge stated that sentencing

guidelines were inadequate and that defendant should not

"benefit" because bystander intervened, creating appearance that

judge sentenced defendant on uncharged rape rather than

conviction for attempted rape). We discern no ambiguity or

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appearance of injustice arising from the judge's comments at the

defendant's sentencing.

Judgment affirmed.

Order dated June 21, 2024,
denying rule 25 (b) (2)
motion, affirmed.

By the Court (Singh, Grant &
Tan, JJ.1),

Clerk

Entered: March 19, 2026.

1 The panelists are listed in order of seniority.

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