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11-P-1238 Appeals Court
COMMONWEALTH vs. MATTHEW TRAYLOR.
No. 11-P-1238.
Suffolk. October 2, 2012. - July 30, 2014.
Present: Berry, Green, & Meade, JJ.
Child Abuse. Assault and Battery. Reckless endangerment of a
child. Constitutional Law, Double jeopardy. Practice,
Criminal, Double jeopardy. Statute, Construction.
Indictments found and returned in the Superior Court
Department on September 12, 2008.
The cases were tried before Elizabeth M. Fahey, J.
A motion to stay execution of sentence was heard in this
court by Fecteau, J.
David Hirsch for the defendant.
Kevin J. Curtin, Assistant District Attorney (Elizabeth A.
Dunigan, Assistant District Attorney, with him) for the
Commonwealth.
BERRY, J. The defendant was charged under G. L. c. 265,
§ 13J(b), on two indictments for assault and battery upon a
child by having care and custody of said child and committing an
2
assault and battery, or wantonly or recklessly permitting or
allowing another to commit an assault and battery resulting in
substantial bodily injury to the child, 1 and on five indictments
for assault and battery upon a child by having care and custody
of said child and committing an assault and battery, or wantonly
or recklessly permitting or allowing another to commit an
assault and battery resulting in bodily injury to the child. 2,3
1
On these two indictments, the defendant was convicted on
special verdicts under G. L. c. 265, § 13J(b), fourth par.,
which states as follows:
"Whoever, having care and custody of a child, wantonly or
recklessly permits substantial bodily injury to such child
or wantonly or recklessly permits another to commit an
assault and battery upon such child, which assault and
battery causes substantial bodily injury, shall be punished
by imprisonment in the state prison for not more than five
years, or by imprisonment in a jail or house of correction
for not more than two and one-half years."
As noted, the two indictments also charged under G. L.
c. 265, § 13J(b), second par.; the defendant was not convicted
of commission under this paragraph, which provides:
"Whoever commits an assault and battery upon a child and by
such assault and battery causes substantial bodily injury
shall be punished . . . ."
2
On these five indictments, the defendant was convicted by
the jury, on special verdicts, under G. L. c. 265, § 13J(b),
third par., which states as follows:
"Whoever, having care and custody of a child, wantonly or
recklessly permits bodily injury to such child or wantonly
or recklessly permits another to commit an assault and
battery upon such child, which assault and battery causes
bodily injury, shall be punished by imprisonment for not
more than two and one-half years in the house of
correction."
3
At the time the child (the defendant's four month old son),
whom we shall call Rory, 4 sustained his injuries, he was living
with his eighteen month old sister, his mother, his aunt, and
his maternal grandfather. The child's oldest injuries coincided
As noted, on these five indictments, the defendant was also
charged under G. L. c. 265, § 13J(b), first par.; he was not
convicted of commission under this paragraph, which provides:
"Whoever commits an assault and battery upon a child and by
such assault and battery causes bodily injury shall be
punished . . . ."
3
Precise definitions in G. L. c. 265, § 13J(a),
differentiate between infliction of "bodily injury" versus
"substantial bodily injury":
"(a) For the purposes of this section, the following words
shall, unless the context indicates otherwise, have the
following meanings: --
"'Bodily injury,' substantial impairment of the physical
condition including any burn, fracture of any bone,
subdural hematoma, injury to any internal organ, any injury
which occurs as the result of repeated harm to any bodily
function or organ including human skin or any physical
condition which substantially imperils a child's health or
welfare.
"'Child,' any person under fourteen years of age.
"'Person having care and custody,' a parent, guardian,
employee of a home or institution or any other person with
equivalent supervision or care of a child, whether the
supervision is temporary or permanent.
"'Substantial bodily injury,' bodily injury which creates a
permanent disfigurement, protracted loss or impairment of a
function of a body member, limb or organ, or substantial
risk of death."
4
A pseudonym.
4
closely with the first day of his mother's return to work full
time, after which time the defendant was the child's primary
caretaker, looking after the child at the child's home, although
the defendant did not reside there.
In this consolidated appeal, the defendant argues that five
of the seven convictions were duplicative; the evidence was
insufficient; and a single justice of this court erred in
denying his motion for a stay of execution. 5 We affirm.
In this case, the particularized injuries to the child as
charged in the seven indictments were as follows:
Indictment Lacerated liver.
1 --
substantial
bodily
injury
Indictment Lacerated spleen.
2 --
substantial
bodily
injury
Indictment Fractured humerus.
3 -- bodily
injury
Indictment Fractured tibia.
4 -- bodily
injury
Indictment Fractured iliac crest.
5 -- bodily
injury
Indictment Multiple bilateral rib
6 -- bodily fractures:
injury
5
Given the result we reach, we find no merit in the
defendant's arguments concerning the ruling of the single
justice.
5
Right thorax:
two fractures to the
posterior eleventh rib,
one fracture to the posterior
tenth rib, anterolateral
fractures of the third,
fourth, fifth, sixth,
seventh, eighth, and ninth
ribs.
Left thorax:
Posterior fractures to the
ninth, tenth, eleventh, and
twelfth ribs, and fractures
to the sixth, seventh, and
eighth ribs.
Indictment Bruises on the body.
7 -- bodily
injury
1. Double jeopardy. a. Introduction. On appeal, the
defendant submits that five of the seven convictions predicated
upon the aforementioned particularized bodily injuries to the
child were duplicative, in violation of double jeopardy rights
protected by the Fifth Amendment to the United States
Constitution and Massachusetts law. In essence, in advancing
this duplicative conviction challenge (which is raised for the
first time on appeal), the defendant argues that only two of the
child's injuries were proven to have been inflicted by separate
acts or on separate occasions, and, thus, the remaining five
convictions and punishments were barred by double jeopardy. 6
6
Sentences of incarceration were imposed on indictments
nos. 1 and 3. On indictment no. 1, for causing substantial
6
In counter, the Commonwealth submits that the "unit of
prosecution" underlying G. L. c. 265, § 13J(b), rests on an
elemental predicate of the discrete and particularized bodily
injury to a child, and that, in § 13J(b), the Legislature sought
to enact the broadest protection for children vulnerably placed
in the care of a person who commits an assault and battery upon
a child 7 or recklessly or wantonly permits the infliction of
particular injuries upon a child. The Legislature, the
Commonwealth submits, has the power to enact and define criminal
offenses, by an indictable unit of prosecution, such as set
forth in § 13J(b), without treading on double jeopardy.
For the reasons which follow, we conclude as follows:
first, that G. L. c. 265, § 13J(b), reflects a clear legislative
bodily injury, the defendant was sentenced to two years to two
years and one day in State prison. On indictment no. 3, he was
sentenced to a consecutive term of two and one-half years in the
house of correction, from and after the incarcerated term for
indictment no. 1. Postrelease probationary terms were imposed
on the remaining counts. On indictment no. 2, for causing
substantial bodily injury, a term of four years' probation was
imposed from and after the sentence on indictment no. 3. On
indictments nos. 4, 5, 6, and 7, for causing bodily injury,
four-year terms of probation were imposed to run consecutive to
the four-year probation on indictment no. 2, but concurrent with
each other.
7
As we have noted, see notes 1 and 2, supra, the defendant
was convicted under the "reckless or wanton" theories under the
statute. Our discussion of the "unit of prosecution" will
nevertheless encompass both active and passive acts or omissions
under § 13J(b), as both are central to discerning legislative
intent concerning the unit of prosecution and are pertinent to
the indictments as returned in this case.
7
intent that the unit of prosecution may be predicated upon, and
indictments may be brought (as specifically categorized in the
statute), for discrete and particularized injuries to a child
occurring while the child is with a caretaker who commits or
recklessly or wantonly permits the infliction of such injuries
upon the child being cared for; and, second, that this unit of
prosecution does not violate double jeopardy, in light of "the
legislative power to define offenses," Commonwealth v. Levia,
385 Mass. 345, 347 (1982), and the legislative intent of
§ 13J(b) "to authorize imposition of multiple punishments for
concurrent violations," Commonwealth v. Crawford, 430 Mass. 683,
686 (2000), with respect to discrete and particularized injury
to the child held in a caretaking setting. Cf. Commonwealth v.
Welansky, 316 Mass. 383 (1944).
The issues presented in this appeal involve the third prong
of double jeopardy, that is, whether multiple punishments are
being imposed. "The double jeopardy clause of the Fifth
Amendment to the United States Constitution protects against
three distinct abuses: a second prosecution for the same
offense after acquittal; a second prosecution for the same
offense after conviction; and multiple punishments for the same
offense" (emphasis added). Mahoney v. Commonwealth, 415 Mass.
278, 283 (1993). It is this last multiple punishment issue
which is presented in this appeal.
8
We address first the question whether (as the Commonwealth
submits) the Legislature, in enacting G. L. c. 265, § 13J(b),
intended to authorize as the indictable unit of prosecution --
for which there may be imposed multiple punishments -- discrete
and particularized "bodily injury" and/or discrete and
particularized "substantial bodily injury."
We then consider whether -- given a legislative intent to
define the offense prosecution unit based on specific
particularized bodily injuries to the child -- such a defined
offense prosecution unit in G. L. c. 265, § 13J(b), violates
double jeopardy, as giving rise to multiple punishments for the
same offense.
b. The unit of prosecution under G. L. c. 265, § 13J(b).
We turn to the first step in our double jeopardy analysis
directed to what unit of prosecution was intended by the
Legislature as the punishable act in G. L. c. 265, § 13J(b).
"The inquiry requires us to look to the language and purpose of
the statutes, to see whether they speak directly to the issue of
the appropriate unit of prosecution, and if they do not, to
ascertain that unit . . . ." Commonwealth v. Rabb, 431 Mass.
123, 128 (2000). See generally Bell v. United States, 349 U.S.
81, 83 (1955).
Here, there are a number of persuasive points which we
discuss herein, supporting our conclusion that the intended unit
9
of prosecution under G. L. c. 265, § 13J(b), is the discrete and
particularized bodily injury inflicted upon a child. At the
outset, it is clear that, on its face and by its plain terms,
there is no question but that G. L. c. 265, § 13J(b), is of that
class of criminal laws wherein the "purpose of the statute" is
to prevent violence perpetrated upon children who are ever so
vulnerable in a caretaking setting. The act inserting § 13J
into G. L. c. 265 was titled, "An Act Prohibiting Certain Acts
Against Children." 8 See St. 1993, c. 340. To the end of
protecting the very vulnerable child placed in a caretaker's
hands, in G. L. c. 265, § 13J(b), the Legislature covered a
child with a wide protective blanket in a caretaking setting.
We believe that enveloping protection for victim-children, and
8
With respect to the legislative history, Justice Dreben
wrote in Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 419-420
(1999), as follows:
"Commonwealth v. Raposo, 413 Mass. 182 (1992), held that a
parent who failed to take reasonable steps to prevent
sexual attacks on her minor daughter by a third person
could not be found guilty of being an accessory before the
fact. More than an omission to act was required. In a
concurrence, Justice Abrams, noting that 'a majority of
State Legislatures have enacted criminal child abuse
statutes which proscribe acts of omission as well as the
affirmative infliction of harm,' id. at 189-190, and noting
also that 'compelling arguments can be made for and against
criminalizing' acts of omission, stated: 'It is for the
Legislature to determine whether expanding that duty by
criminalizing acts of omission would better protect the
Commonwealth's children.' Id. at 191-192. In response,
the Legislature enacted G. L. c. 265, § 13J . . . ."
10
the core prosecution unit of § 13J(b), is codified within the
specific and discrete enumerated bodily injuries precisely
defined in § 13J(a) for "bodily harm" and "serious bodily harm."
These key definitional terms are central to understanding the
expanse of protection the statute affords, and the unit of
prosecution envisioned by the Legislature. For ease of
reference, we repeat the material definitional terms here:
"[b]odily injury" encompasses: "substantial impairment of the
[child's] physical condition including any burn, fracture of any
bone, subdural hematoma, injury to any internal organ, any
injury which occurs as the result of repeated harm to any bodily
function or organ including human skin or any physical condition
which substantially imperils a child's health or welfare."
G. L. c. 265, § 13J(a). "Substantial bodily injury" includes "a
permanent disfigurement [of the child], protracted loss or
impairment of a function of a body member, limb or organ, or
substantial risk of death." Ibid. (The full definitions are
set forth in note 3, supra.)
Given the especial vulnerability of a child held in a
caretaking custody, we read G. L. c. 265, § 13J(b), as an
informed and quite purposeful enactment by the Legislature
defining the unit of prosecution predicated upon the victim-
child's injuries -- not the often unknowable inflicting actions
or omissions by a caretaker or another. See, e.g., Commonwealth
11
v. Roderiques, 462 Mass. 415, 422 (2012) ("The elements of
§ 13J[b], fourth par., are [i] a child under fourteen; [ii] in
care and custody; [iii] a substantial bodily injury; [iv] the
defendant wantonly or recklessly permitted this substantial
bodily injury, or wantonly or recklessly permitted another to
commit an assault and battery on the child causing substantial
bodily injury").
The prosecution of cases involving injuries to a child
"stands in the not particularly unfamiliar posture of a child
left in the custody of an identified adult, who suffers injuries
of a type that are inconsistent with the explanation given by
the custodian and not attributable in the circumstances to
ordinary accidental causes." Commonwealth v. Roman, 43 Mass.
App. Ct. 733, 735 (1997), S.C., 427 Mass. 1006 (1998). 9
9
The tragic litany of child injury cases described in
Commonwealth v. Roman, 43 Mass. App. Ct. at 735, illustrates the
circumstance of known child injury, but unknowable acts of
infliction by the caretaker:
"Commonwealth v. Woods, 339 Mass. 7, 8-10 (1959) (jury
could infer from severity of blow to child's head that it
had been struck by defendant during twenty minutes when he
was alone with the child in the bathroom); Commonwealth v.
Labbe, 6 Mass. App. Ct. 73, 75-76 (1978) (fifteen month old
child left in custody of defendant suffered three liver
lacerations inconsistent, according to physician, with
having been caused by ordinary falls or collisions);
Commonwealth v. Cokonougher, 32 Mass. App. Ct. 54, 55-56,
61 (1992) (child in sole care of defendant overnight found
asphyxiated); Commonwealth v. Azar, 32 Mass. App. Ct. 290,
304-308 (1992) (four month old child left in custody of
12
Measured by the core protections contained in the clear
definitional terms of G. L. c. 265, § 13J(a) -- all of which are
crafted to surround the child and insulate against any injury to
be suffered while in the custody of a caretaker, whether
inflicted deliberately or recklessly, the Commonwealth, as
prosecutorial entity, may bring indictments under G. L. c. 265,
§ 13J(b), even if the duration of, the precise manner and means
of the infliction of the injuries, and the number of blows
struck are unknowable because delivered closed from view
(meaning without witness thereto) in a private caretaking
setting. "Under c. 265, § 13J, it does not matter who committed
the batteries, and each person having the care and custody of
the child may be found guilty of the offense of permitting
anyone to commit an assault and battery." Commonwealth v.
Garcia, 47 Mass. App. Ct. 419, 424 (1999). The Commonwealth is
not required to prove precisely how the designated injuries
occurred, or how the person charged under § 13J either inflicted
or permitted the infliction of the discrete and particularized
injury upon the child. See Commonwealth v. Robinson, 74 Mass.
App. Ct. 752, 759 (2009). General Laws c. 265, § 13J(b),
reaches both active, affirmative acts of commission, as well as
defendant on morning when she suffered multiple fractures
of bones and other severe injuries)."
13
inactive, passive omissions that permit injury, or that allow
another to inflict bodily injury upon the child. See ibid.
Further reflecting the legislative intent to set the unit
of prosecution as the discrete and particularized bodily injury
suffered by the child is the staircasing of the penalties, with
enhanced criminal sentences tied to injuries to particularized
body parts. Specifically, G. L. c. 265, § 13J(b), provides
greater, harsher penalties for acts and omissions that lead to
substantial bodily injury versus less serious bodily injury.
This differential in the statute is categorized and defined by
black-letter definitions in § 13J(a) expressly linked to bodily
parts (i.e., "[b]odily injury" defines, for example, injuries by
a burn, bone fracture, subdural hematoma, damage to internal
organs, and to bodily functions; and "[s]ubstantial bodily
injury" defines, for example, permanent disfigurement, loss of a
function of a body member, limb or organ, or injury posing
substantial risk of death). See note 3, supra (full
definitions).
For these reasons, we conclude that the seven indictments
in this case under G. L. c. 265, § 13J(b), are based on an
appropriate unit of prosecution and are consistent with the
legislative intent that the unit of prosecution may be
predicated upon, and indictments may be brought for, any
discrete and particularized injury to a child held within the
14
control of a caretaker who commits or recklessly or wantonly
permits such discrete and particularized injuries, or permits
another to commit an assault and battery resulting in such
injuries to the child being cared for. 10
c. The multiple punishment issue. Given our determination
that the unit of prosecution is the discrete and particularized
bodily injury to the child, the next level of analysis involves
whether double jeopardy is violated because multiple punishments
may flow from convictions on multiple indicted units of
prosecution -- in other words, multiple convictions on multiple
indictments for the child's discrete bodily part injuries, as in
this case. We conclude not. "[F]ew, if any, limitations are
imposed by [the double jeopardy] clause on the legislative power
to define offenses." Commonwealth v. Levia, 385 Mass. at 347.
That a unit of prosecution predicated on discrete and
particularized injuries (such as charged in the seven
indictments in the present case) does not violate double
jeopardy harkens back to the legal principles of Commonwealth v.
Welansky, 316 Mass. 383 (1944). In the Welansky case, there
were nineteen manslaughter convictions for the same predicate
10
For the reasons stated above, we reject the defendant's
argument that G. L. c. 265, § 13J(b), is ambiguous and therefore
the rule of lenity should apply. Rather, the statute, as we
discuss above, reflects a clear and plain statutory offense
structure based on discrete and particularized injuries to a
child's body.
15
wanton and reckless acts and omissions which created the
inherently dangerous conditions leading to the inferno of the
Boston Cocoanut Grove fire. In response to the defendant's
argument that the indictments should have been quashed, the
court wrote as follows. "The Commonwealth did specify the
nature of the mortal injuries suffered by the different victims
. . . and the harmful consequences to which acts or omissions of
the defendant exposed the several victims and which could have
been foreseen by the defendant." Welansky, 316 Mass. at 394.
"For constitutional purposes all that is required is that the
indictment, read with the bill of particulars, be sufficient
fully, plainly, substantially and formally to give the defendant
reasonable knowledge of the crime with which he is charged"
(quotations omitted). Id. at 396.
Indeed, of further legal pertinence to this case, where the
defendant was convicted only of wanton or reckless acts or
omissions, see notes 1 and 2, supra, is the Welansky definition
of "wanton or reckless," which is embedded in G. L. c. 265,
§ 13J(b). As Welansky held and as G. L. c. 265, § 13J(b),
tracks, "The essence of wanton or reckless conduct is
intentional conduct, by way either of commission or of omission
where there is a duty to act, which conduct involves a high
16
degree of likelihood that substantial harm will result to
another." Welansky, 316 Mass. at 399. 11
Where, as here, there were numerous injuries occurring over
a period spanning close to thirty days, it was open to the
Commonwealth to seek multiple indictments, each specifically
identifying the discrete injury suffered. Compare Commonwealth
v. Vega, 36 Mass. App. Ct. 635, 641 (1994) (no error in imposing
successive sentences for unnatural rape and rape occurring in
course of single criminal episode; "[t]he realities of the
multiple attacks on the victim warranted -- although they did
not require -- multiple indictments and consecutive
sentences"). 12 Cf. Commonwealth v. Dingle, 73 Mass. App. Ct.
11
The controlling holding in Welansky -- indeed the holding
for which the case is most "famous" -- is the common-law
criminal pronouncement that, "[i]f by wanton and reckless
conduct bodily injury is caused to another, the person guilty of
such conduct is guilty of assault . . . [and] if death results
he is guilty of manslaughter." Welansky, 316 Mass. 401.
However, in the affirmance of the multiple indictments for and
convictions of the multiple deaths, Welansky also supports that
the proper unit of prosecution was predicated upon indictments
returned for each of the victims who died as a result of the
defendant's single course of reckless and wanton conduct.
12
As to the quoted statement in Commonwealth v. Vega,
supra, compare Commonwealth v. Tavares, 61 Mass. App. Ct. 385
(2004) (upon special verdict slips, each identifying the body
part injured, each defendant was convicted, inter alia, on six
indictments, each charging violation of G. L. c. 265, § 13J[b],
first par.; evidence showed that child was well before being
placed into defendants' care for approximately one month), with
Commonwealth v. Garcia, 47 Mass. App. Ct. at 421-422
(notwithstanding medical evidence showing twenty-six rib
fractures, a skull fracture, fractures of both clavicles, and
17
274, 277, 282-283 (2008) (no double jeopardy violation in
charging defendant on three indictments for possession with
intent to distribute child pornography where police found, inter
alia, 945 photographs, 177 videotapes, and multiple floppy
discs; because possession of a single image constitutes a
violation of the statute, "the Commonwealth could have indicted
the defendant separately for each image he possessed or
distributed").
Also consistent with our conclusion that multiple injuries
to a child, such as are predicated in G. L. c. 265, § 13J(b),
may be the subject of separate indictments and punishments
without violating the multiple punishment bar of double jeopardy
is Commonwealth v. Crawford, 430 Mass. 683 (2000). In Crawford,
as in this case, the court focused analysis on the third
multiple punishment category of double jeopardy protection, and
held that "the Legislature intended to authorize imposition of
multiple punishments for concurrent violations of the
[manslaughter] statute arising out of a single transaction"
because the appropriate unit of prosecution for such crimes is
the person killed, not the underlying criminal act. Id. at 686-
two fractures of the leg, and expert testimony identifying "at
least two and probably three different times during which the
injuries occurred," only two indictments were returned against
each defendant under G. L. c. 265, § 13J[b], and each defendant
was convicted on only one of the indictments).
18
687. 13 "There is no merit to the defendant's contention that he
may not be punished for two homicides when he fired only one
shot. The 'probable harmful consequences' of a single gunshot,
like the fire started by a single match or the car running out
of control due to a single reckless miscalculation, are not
limited to one death." Id. at 687, quoting from Commonwealth v.
Vanderpool, 367 Mass. 743, 747 (1975). Accord Commonwealth v.
Melton, 436 Mass. 291, 295 (2002) ("a single act can result in
multiple convictions if there are multiple victims"). See also
Commonwealth v. Levia, 385 Mass. at 350-351 (no error in
sentencing defendant on two convictions of armed robbery of two
individuals in the course of a single incident; no double
jeopardy violation because the statute was directed to the
assault element of robbery).
13
Where a statute governing an offense does not focus on a
discrete injury to an individual (unlike G. L. c. 265, § 13J[b])
but, rather, the conduct of the offender, the Supreme Judicial
Court has found that the correct unit of prosecution does not
take into account the number of discrete victims. See, e.g.,
Commonwealth v. Constantino, 443 Mass. 521, 524 (2005) (holding
that the unit of prosecution under G. L. c. 90,
§ 24[2][a 1/2][2], for leaving the scene of a motor vehicle
accident, was the driver's conduct, not the number of potential
victims affected by the conduct). The Constantino court
observed that, in that case, "the fact that [the] statute is
listed as a motor vehicle offense under G. L. c. 90, rather than
a crime against a person under G. L. c. 265, further supports
the view that the act is scene related." Ibid.
19
2. Sufficiency of the evidence. Applying the standard of
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we are
persuaded that there was sufficient evidence to support the
seven convictions.
The following is a summary of the evidence from the trial
record. On September 17, 2007, four month old Rory was brought
to Winchester Hospital by his father, the defendant, and the
child's mother, Emelyn Ortolaza. The parents referred to
swelling in the child's shoulder.
Examination at this first response hospital revealed
seventeen rib fractures at different stages of healing, a
fractured humerus, a fractured tibia, and a fractured iliac
crest (a bone in the pelvis). There were bruises over the
baby's entire body including on the left buttocks, leg, head,
and right shoulder. There was a notable bruise on Rory's rib
cage which virtually "looked like a handprint." The child was
subsequently taken to Children's Hospital by ambulance. Further
review by the Children's Hospital child abuse protection team
also discovered that the baby had suffered a lacerated spleen
and a lacerated liver. According to the trial testimony of Dr.
Alice Newton, one of the treating physicians from the child
protection team at Children's Hospital, the multiple injuries
were not consistent with having been caused by any accident.
20
The medical evidence concerning the time frame of the
indictments (commencing on August 21, 2007, and continuing up to
the hours just before the September 17 hospitalization) within
which the injuries were inflicted upon Rory was proximate to the
first day the defendant became the child's primary caretaker as
the mother returned to full-time work. That is, commencing on
August 21, 2007, the defendant became Rory's primary full-time
caretaker, and stayed with the baby at the mother's house during
the daytime work hours, and sometimes at night and during
weekends. Prior to the September 17 hospitalization, at the
child's last doctor visits for routine care, on August 7 and
August 15, 2007, the medical providers saw nothing amiss. The
particular time frame concerning particular injuries is
discussed infra.
a. The indictments corresponding to the particular
injuries inflicted. In addressing the defendant's challenge to
the sufficiency of the evidence, we set forth the discrete and
particularized bodily injuries to the child, and the trial
evidence relating thereto for each conviction.
(1) The lacerated liver (indictment 001; substantial bodily
injury). When Rory was brought to Children's Hospital, he had
"markedly elevated" liver enzymes, which, according to the
medical evidence, was an indication of liver damage. A
computerized tomography scan of the baby's liver showed a grade
21
"4-5" (of 6) laceration of the liver, an injury which
represented "very serious and severe damage to the liver." Dr.
Newton described the liver injury as reflective of "very violent
trauma" consistent with "some type of blow or crushing of the
area." This type of injury is not seen "in household falls" or
in "clumsy handling of infants." In a baby of the victim's age,
this type of liver injury would be like "being hit in the
abdomen or . . . either being stepped on or hit or crushed . . .
." There was "a very large area of damage to the liver," and
extensive bleeding so pronounced that the baby "could have bled
to death at the time of the injury." In Dr. Newton's medical
opinion and diagnosis, the child's liver injury had happened
recently, probably within a "few days" preceding the September
17, 2007, hospital admission.
(2) The lacerated spleen (indictment 002; substantial
bodily injury). The injury to Rory's spleen comprised "an area
of contusion or laceration that went from the front to the back
of the spleen." This kind of injury is very painful and very
dangerous. The injury to the spleen had been inflicted within
days of the September 17 hospitalization.
(3) The fractured humerus (indictment 003; bodily injury).
According to the medical evidence, the fracture of Rory's
humerus bone had occurred relatively recently in relation to the
September 17 hospital admission. This dating rested on the fact
22
that there was not present any "new . . . bone formation" such
as would be expected if the injury had existed for seven to ten
days. Further, according to the medical evidence, the baby's
humerus bone fracture was caused by a very different kind of
traumatic event than that which could have caused the laceration
of the child's liver and spleen. This fracture was in an
unusual location, where the upper arm meets the shoulder socket,
and this humerus fracture would require "a lot of force." That
degree of force would be caused by an unreasonable "jerking" of
the child or "swinging the child by the arm."
(4) The fractured tibia (indictment 004; bodily injury).
There was a "spiral" fracture to Rory's lower leg bone, which
was an "acute" or new injury. In order to have been inflicted,
the "spiral" fracture to the tibia required "some kind of
torsion or torque, almost twisting movement, in order to
develop."
(5) The fractured iliac crest (indictment 005; bodily
injury). The injury to the iliac crest, located "by the hip
bone," was, in the doctor's opinion, a "very uncommon" injury
that would be inflicted by means of "a tremendous amount of
violence and force." The infliction of this substantial bodily
injury would be the result of either a "direct blow or some type
of movement that would force [the child's] leg kind of up into
the pelvis or force it back in a forceful way to create pulling
23
or attraction or direct trauma to that bone." Such major pelvic
trauma with resulting iliac crest fracture, as the physician
testified, would be comparable to fractures suffered in car
crashes.
(6) The fractured ribs (indictment 006; bodily injury).
Seventeen of Rory's ribs were fractured. Thirteen rib fractures
showed "callus formation," which indicated that the force
causing the fracture may have occurred in the range of seven to
ten days before the September 17 hospital admission. Four of
the other fractures bore no callus formation, reflecting a more
recent infliction, within approximately seven days of September
17.
There was evidence that "different types of trauma can lead
to different locations of fractures in the rib." The four
"younger" fractures on the left side of the child's body were
inflicted by means of a "different pressure and a different
mechanism" from the manner in which the other, older, thirteen
fractures were inflicted. The older rib fractures as well as
the tibia fracture were "clearly not at the same time."
(7) Bruises (indictment 007; bodily injury). There were
four separate bruises. The child's body was marked by separate
distinct bruises including finger-shaped bruises on his abdomen,
a singular large bruise on his abdomen, and other bruises on his
arm and the right side of his forehead.
24
b. Assessing the evidence. Given the above evidence, and
applying the Latimore standard, we find no merit in the
defendant's arguments that the circumstantial evidence was
inadequate; that the evidence was so equivocal as to result in
"conviction[s] based on conjecture"; or that the Commonwealth
failed to prove that any inaction on the part of the defendant
"resulted" in the child's injuries, or that the liver and spleen
injuries were so severe as to conform to the definition of
"substantial bodily injury" in G. L. c. 265, § 13J. Nor is
there any merit in the defendant's argument that the
Commonwealth failed to prove that the defendant's failures to
act amounted to wanton or reckless conduct. See Commonwealth v.
Welansky, 316 Mass. at 399.
The defendant not only challenges the over-all
insufficiency of the evidence which we address above but also,
in a further variation, contends that there was insufficient
evidence that the child's injuries would have been so apparent
that a reasonable person would have known that the injuries
existed and, thus, the defendant could not be deemed under the
statute to have "permitted" the injuries to have happened. This
insufficiency challenge is also unavailing.
In the special verdicts, the jury expressly found that the
defendant, under G. L. c. 265, § 13J(b), third and fourth pars.,
having care and custody of the child, wantonly or recklessly
25
permitted substantial bodily injury (indictment nos. 1 and 2) or
bodily injury (indictment nos. 3-7) to the baby or wantonly or
recklessly permitted another to inflict those injuries. For all
the reasons previously stated, and based on the analysis of the
evidence set forth therein, there was more than ample evidence
to support those verdicts. To argue, as the defendant does,
that an "ordinary normal man" would not have "sensed grave
danger" to the child from many of the patently obvious injuries
inflicted upon the baby's body and what must have been cries of
anguish is simply not a sustainable contention. 14
14
We further reject the defendant's contention that only
two of the injuries occurred on separate occasions. That
contention is belied by the great weight of the medical trial
evidence. Even were one to put aside the discrete and
particularized injuries to the child, and focus on time-dating
the violent act or acts as different "occasions" in point of
time (as the defendant would have us do), the medical evidence
in this case dated the injuries in five of the indictments as
bearing indicia of infliction at different points in time. It
was only the massive injuries in the lacerations to the liver
and spleen (indictment nos. 1 and 2), and the fractures of the
tibia and iliac crest (indictments nos. 4 and 5) that were not
susceptible to precise time-dating in the medical testimony. As
to the spleen and liver lacerations, Dr. Newton testified that
it was not possible to determine whether the injury to the
spleen might have been inflicted at the same time as the injury
to the liver, because, given the extreme trauma that would lead
to both the deep lacerations to the liver and spleen, it was
"logically" possible that the blow or blows causing the
lacerations of the two organs may have been delivered close in
time or at the same time. Similarly, it was also not possible,
given the physical characteristics of the respective bone
structures, to differentiate by time-dating when the tibia
fracture and the iliac crest fracture were inflicted and whether
these bones were broken and fractured within the same time
frame, or indeed could have happened at the same time.
26
Conclusion. We bear in mind, as referenced earlier, that
this case "stands in the not particularly unfamiliar posture of
a child left in the custody of an identified adult, who suffers
injuries of a type that are inconsistent with the explanation
given by the custodian and not attributable in the circumstances
to ordinary accidental causes." Commonwealth v. Roman, 43 Mass.
App. Ct. at 735. The host of discrete and particularized
injuries to the child's body parts -- a phrase that is wholly
inadequate to describe the horrific damages to this four month
old baby's body and the number of blows that would have been
delivered to cause the baby's physical damage and suffering --
provides the quintessential explanation for why the Legislature
enacted G. L. c. 265, § 13J(b), to define the unit of
prosecution by the discrete and particularized injury to the
child committed by or permitted to be committed by the wanton
and reckless caretaker.
Judgments affirmed.
Order of single justice
affirmed.