An appellate panel heard arguments Monday in Commonwealth v. James Gagne over whether evidence was sufficient to support convictions for indecent assault and battery and whether the trial judge erred by not giving an accident instruction.

Laura Mannion, counsel for appellant James Gagne, told the court the touching the victim described was brief and unwelcome but that the record lacked any direct or circumstantial evidence permitting a reasonable inference that the defendant intended the contact. "We are not arguing consent," Mannion said, adding that "1 to 2 seconds is 1 to 2 seconds too many" when describing the duration of the contact. She urged the court to reverse, saying the absence of an accident instruction and the lack of intent evidence were dispositive.

The Commonwealth, represented by Stacy Gauthier, asked the court to affirm the convictions. Gauthier said the evidence—viewed in the light most favorable to the Commonwealth under the relevant standard—supported a finding of intent and that the accident instruction was not "fairly raised." She also defended the judge's decision to admit both an immediate exclamation at the bar and a subsequent prompt complaint: the victim's outcry—"Did you just effing touch me?"—was characterized as an excited utterance and was, Gauthier argued, properly admitted for its different evidentiary purpose.

Counsel and the panel debated whether typical "plus factors"—repeated interaction, suggestive comments or other corroborating conduct—were present in the record. Mannion maintained those factors were absent here, while Gauthier pointed to testimony about the defendant's behavior in the bar and to jury instructions on intent given for the charged and lesser-included offenses.

The bench also questioned the parties about sentencing materials that the judge reviewed, including expired restraining-order affidavits the judge described as ex parte; Gauthier said the defense had an opportunity to review those affidavits during sentencing and that the judge's consideration of character and court filings was permissible. After additional questioning, both parties rested and the matter was submitted to the court.

The appeals court did not announce a decision at argument and took the case under advisement.