Commonwealth v. Roderiques, 462 Mass. 415

Defendant, age 17, lived with her infant son and Shawn Cambra in New Bedford apartment; infant sustained extensive injuries Dec. 23–24, 2003 while only defendant and Cambra were present.
Indictments charged: (1) assault and battery on a child under 14 causing substantial bodily injury; (2) wantonly and recklessly permitting an assault and battery causing substantial bodily injury;
Judge allowed a jury instruction that 13L reckless endangerment of a child could be a lesser included offense of 13J(b), fourth paragraph;
Jury acquitted on the indicted offenses but convicted on the lesser included offense;
Defendant moved to vacate the conviction arguing 13L is not a lesser included offense and that expert testimony improperly commented on ultimate issues;
Appeals Court affirmed; Supreme Judicial Court granted further appellate review and now affirms on different grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is §13L a lesser included offense of §13J(b), fourth par.?	Commonwealth contends 13L is encompassed by 13J(b), fourth par.	Roderiques argues 13L is not a lesser included offense of 13J(b), fourth par.	Yes; §13L is a lesser included offense of §13J(b), fourth par.
Was there a sufficient factual basis to instruct on the lesser included offense?	N/A in factual predicate; focus on defense claim of error.	There was no evidence supporting conviction of the lesser offense without the greater.	The instruction was erroneous but did not create a substantial risk of miscarriage of justice.
Did defense counsel’s request for a lesser included offense instruction constitute ineffective assistance?	N/A; analysis focuses on defense claim.	Counsel’s decision to request the lesser included instruction was tactical and reasonable.	No ineffective assistance; tactical decision not manifestly unreasonable.
Did the Commonwealth's expert testimony impermissibly address an ultimate issue?	N/A; issue concerns admissibility.	N/A; claim challenges expert’s ultimate-issue commentary.	Testimony admissible; expert aided jury in understanding causation of injuries without determining defendant’s guilt.

Commonwealth v. Porro, 458 Mass. 526 (Mass. 2010) (lesser included offense analysis; statutory elements comparison)
Commonwealth v. Martin, 425 Mass. 718 (Mass. 1997) (elemental comparison; lesser included offense under multiple theories)
Commonwealth v. Santos, 440 Mass. 281 (Mass. 2003) (alternative means of proving an element; juror unanimity guidance)
Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (standard for sufficiency in criminal convictions)
Commonwealth v. Donlan, 436 Mass. 329 (Mass. 2002) (tactical decisions and ineffective assistance framework)
Commonwealth v. Nardone, 406 Mass. 123 (Mass. 1989) (reversible error if lesser instruction given without rational basis)