A jury found the defendant, Jeanne Chapman, guilty of wantonly or recklessly permitting substantial bodily injury to her ten month old infant, Taraea. See G. L. c. 265, § 13J.
We answer the first question in the negative, concluding that “substantial bodily injury” does not include death, but add that death may be evidence of a substantial bodily injury as that term is defined by the statute. We answer the second question in the negative as well. We find no еrror on the defendant’s additional claims and affirm her conviction.
1. Facts. The facts necessary to resolve the issues before us are largely undisputed. The defendant was giving her baby a bath at home at about 3:45 p.m. and stepped away from the bathroom for approximately three minutes to answer the telephone.
2. Reported Questions.
(a) Substantial bodily injury. The Commonwealth proceеded on the theory that the defendant’s acts and omissions constituted a single episode in which, having the care and custody of ten month old Taraea, she wantonly or recklessly permitted the
“Substantial bodily injury” is defined in § 13J as “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.” G. L. c. 265, § 13J (a). “Bodily injury” is in turn defined in the statute as “substantial impairment of the physical condition including any bum, fracture of any bone, subdural hematoma, injury to any internal organ, any injury which оccurs as a 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). The latter defines the bodily injuries the Legislature intended to be punishable under the statute, i.e., bums, fractures, injuries to internal organs, and perilous physical conditions, while the former lays the foundation for greater sanctions based on the gravity and consequences of the bodily injury sustained. Read together, and as relevant here, a substantial bodily injury includes any substantial impairment of the physical condition that causes a protracted impairment of the function of an internal organ or a substantial risk of death. As it appears in the context of the statute, death is not an injury, but one risk of injury.
The defendant аrgues that the only injuries were the small pinpoint hemorrhages on the baby’s eyelids, a symptom of oxygen deprivation. In her view, the bmises cannot themselves be considered a “substantial bodily injury” under § 13J.
The defendant misconstrues the statute. Although the petechial hemorrhages on the baby’s eyelids may have been the only visible signs of injury, they were not the baby’s only injuries within the meaning of the statute. The statutе reaches any “substantial impairment of the physical condition.” G. L. c. 265, § 13J. Asphyxiation, like malnutrition or dehydration, may cause a substantial impairment of the physical condition. As such, it is a bodily injury within the meaning of § 13J (a). Where it creates a protracted impairment of heart, lung, or brain
The defendant also argues that her conviction was improper as mattеr of law because the definition of “substantial bodily injury” does not include death. She relies on two opinions in which we concluded and one in which the Appeals Court concluded that the Legislature does not generally intend the term “injury” to include injuries that result in death. See Kromhout v. Commonwealth,
The considerations undеrlying the proper application of a criminal statute are different. The Legislature “has great latitude to determine what conduct should be regarded as criminal and to prescribe penalties to vindicate the legitimate interests of society,” Commonwealth v. Jackson,
That the district attorney elected to seek an indictment under § 13J because the defendant permitted the infant to suffer a substantial bodily injury rather than an indictment for invоluntary manslaughter on the basis of the infant’s death, does not mean that the charge was improper. See United States v. Batchelder,
(b) Vagueness. In his second reported question, the trial judge
A statute is unconstitutionally vague as applied if it would have failed tо place a person of ordinary intelligence on notice that his or her actions or omissions are criminal under the statute, or if the statute fails to provide law enforcement officers with clear guidelines. See Commonwealth v. Bohmer,
Contrary to the defendant’s contention, she was not charged with or convicted of having caused her baby’s death: she was charged and convicted on the basis of her intentional acts and omissions that permitted her baby to be injured. Furthermore, she was not prosecuted for the innocent noncriminal act of bathing the infant but for the wanton or reckless act of leaving her in the bathtub unattended such that she was likely to drown, and wantonly or recklessly failing to seek immediate medical attеntion to help revive her. The defendant was on notice that the manner in which she conducted herself was criminal under the statute, and the statute defines the offense with sufficient specificity to prevent ad hoc or subjective enforcement. See Grayned v. Rockford,
3. The Defendant’s Claims of Error.
(a) Sufficiency of the evidence. The defendant contends that
When considering a claim regarding the sufficiency of the evidence, we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore,
The evidence established that the defendant intentionally left the baby unattended for approximately three minutes in water deep enough to drown, during which time the baby aspirated the bathwater. After returning to the bathroom, taking Taraea from the tub and laying her on the floor, the defendant then spent three to five additional minutes on the telephone trying to get a babysitter for her other child before dialing 911. The defendant made no attempt to revive the infant. The jury were warranted in concluding that the entire course of conduct was wanton or reckless. Contrast Commonwealth v. Michaud,
The defendant concedes that the infant died of asphyxiation, but contends that there was insufficient evidence to support a finding that the baby sustained a substantial bodily injury. She largely repeats her argument, noted in Part 2 (a), supra, that Taraea’s only injury was the petechial hemorrhaging on the eyelids — signs that small blood vessels in the eyelids ruptured as a result of asphyxiation — and that these hemorrhages do not constitute a “substantial bodily injury.” For reasons discussed above, we disagree.
(b) Jury instructions. The defendant contends that the jury instructions on wanton or reckless conduct were flawed in two respects. The defendant objected to the charge on this element “to the extent that [it] varied from the instruction . . . put forward by the [defendant.” This general objеction was insufficient to preserve her rights on appeal because it failed to inform the judge of the specific language to which she objected, and the grounds on which such objections were being made. Mass. R. Crim. P. 24 (b),
First, the defendant argues that, because the judge failed specifically to define negligence and gross negligence, the jury were prevented from finding her merely negligent, a finding that would have required an acquittal. The judge’s instruction on wanton or reckless conduct incorporated the concepts of ordinary and gross negligence to illustrate the placement of wanton or reckless conduct on a spectrum of fault. The jury can be presumed to have a sufficient understanding of negligence and gross negligence from their collective experience for purposes of this instruction. The judge made it perfectly clear that the burden on the Commonwealth was to prove beyond a reasonable doubt that the defendant’s conduct was wanton or reckless. After defining wanton or reckless conduct, the judge
Seсond, the defendant argues that the judge confused the objective and subjective aspects of wanton or reckless conduct. Jury instructions “must be construed as a whole and [consequently], isolated misstatements or omissions do not necessarily constitute reversible error.” Commonwealth v. Campbell,
The defendant challenges the following instruction: “If the grave danger was, in fact, realized by the [defendant, her subsequent voluntary conduct, be it an act or omission, which caused the harm, constitutes wanton or reckless conduct regardless of whether or not an ordinary person would have realized the gravity of the danger.” This statement, rephrased twice during the course of the instructions, was given in the context of five pages of very clear instructions on the element of wanton or recklеss conduct. Again, the main thrust of the judge’s instructions closely tracked the language approved in Commonwealth v. Welansky, supra. The portion to which the defendant objects does not misstate the law: we have repeatedly held that a defendant’s subjective awareness is sufficient but not necessary to convict. See, e.g., Commonwealth v. Catalina,
Judgment affirmed.
Notes
General Laws c. 265, § 13J, provides:
“(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 bum, 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 physiсal 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.
“(b) Whoever commits an assault and battery upon a child and by such assault and battery causes bodily injury shall be punished by imprisonment in the state prison for not more than five years or imprisonment in the house of correction for not more than two and one-half years.
“Whoever commits an assault and battery upon a child and by such assault and battery causes substantial bodily injury shall be punished by imprisonment in the state prison for not more than fifteen years or imprisonment in the house of correction for not more than two and one-half years.
“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 bаttery 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.
“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 causеs 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” (emphasis added).
There was some evidence that the defendant stepped away to make the telephone call herself.
Testimony put the water depth at anywhere between four and eleven inсhes.
See Kromhout v. Commonwealth,
Other courts have concluded that prosecution under similar statutes for substantial bodily injury was proper when the child died, but reached that result by simply stating that death is a substantial bodily injury. We agree with the results in these cases, but for different reasons. See, e.g., People v. District Court,
General Laws c. 265, § 13J, inserted by St. 1993, c. 340, § 2, was enacted to fill a perceived gap in the law noted in Commonwealth v. Raposo,