After a joint trial in Superior Court, a jury convicted the defendant of reckless endangerment of a child in violation of G. L. c. 265, § 13L, and sentenced her to a two-year term of probation.
At trial there was no dispute that the six month old victim suffered a complex skull fracture and multiple other injuries to his head and eyes as the result of physical abuse. The charges against the defendant stem from her failure to obtain medical care for the victim (her grandson) after he was dropped on a tile floor and struck his head. We summarize the evidence at trial in the light most favorable to the Commonwealth, focusing on evidence relevant to the defendant’s attack on the sufficiency of the Commonwealth’s case and reserving certain details for our discussion.
1. Background. The victim and his twin brother were bom on August 28, 2007, to the defendant’s daughter, Mary.
When the twins were born, the defendant named one child Thad, and the codefendant named the other David.
In October, 2007, Mary returned to middle school. The defendant worked Monday through Friday from about 7:00 a.m. to 4:00 p.m., and she told Mary that Cruz, who was unemployed, would be taking care of the twins when Mary was at school. Before Mary left for school each morning, she fed, bathed, and dressed the twins, and after school she would resume caring for the children. On the weekends, Mary cared for the babies with help from the defendant and Cruz.
On Christmas Eve, 2007, Mary and the defendant got into an argument, and when it appeared that blows might be exchanged, Cruz hit Mary in the face.
Mary noticed that when Cruz interacted with the twins he “would be really rough with them — well, with [Thad] he [would] be rough”; David was his favorite. She explained that she saw him throw the babies, especially Thad, on the bed from a “high distance,” and that he would call them names like “Stupid.” Mary asked him not to call them names “because they are babies.” She also saw Cruz slap them hard on the head with his hand. The babies would cry when that happened. Mary told Cruz not to do this, and she believed this conduct, particularly with Thad, “could hurt [him].” Cruz “always” replied that he knew what he was doing.
Over the course of the next month, Thad, the victim in this case, was taken to the hospital four times, with similar symptoms on each occasion. On the first occasion, February 10, 2008, the defendant and Mary took Thad to the emergency room the day after Cruz told them that Thad had suffered a “choking episode” and turned purple while Mary was at school. At the hospital Thad was diagnosed with asthma and sent home with medication. On or about February 19, 2008, Mary called an ambulance, and she and Thad were taken to the hospital because he had a fever
Over the next ten days, Mary testified, Cruz “just kept on hitting [Thad] in the head and throwing him on the bed.” She further testified that “most of the time” when Cruz shook Thad she saw “his head was going back and forth.” Cruz would raise Thad above his head and shake him for about two to three minutes at times, because Thad would not take his bottle. Mary remembered one particular occasion when she saw Cruz shake Thad in this manner on February 25, 2008. Thad still appeared to be sick with a fever, and “wasn’t acting himself.”
On Friday, February 29, 2008, Mary was in the hallway when she saw Cruz with Thad in the defendant’s bedroom. Cruz had been feeding the baby. She saw Cruz holding Thad and shaking him from side to side. Thad was laughing at first and then began to cry. Cruz had the baby high above his head and was shaking him when he started to cry, and then suddenly Cruz dropped Thad to the tile floor. Thad’s head struck the tile, and Mary ran to pick him up. Thad “was crying a lot.” Mary knew immediately that “something was wrong with him.” She saw a redness on Thad’s head where it had hit the tile. She was afraid, because she knew “something serious could have happened.”
Within two or three minutes, the defendant emerged from the shower, and Mary told her “what she had seen happen” and urged the defendant to help her get Thad to the hospital. The defendant refused. She told Mary Thad was going to be all right, but she did not look at the infant. Rather, she immediately took Mary’s cellular telephone and told her to go to her room. The defendant threatened Mary, warning her that if she took the baby to the hospital, “I’m going to have you locked up and [the Department of Social Services (DSS)
Two days later, Thad was still behaving differently. Mary
At home, Thad seemed to be doing a little better and “acting himself again like a little bit.” On March 6, 2008, Mary went to school and left Thad in Cruz’s care. When she got home, Cruz told her that Thad was at the hospital, the fourth time in thirty days, because, according to Cruz, he had had another choking episode. Mary got a ride to the hospital from her downstairs neighbor. Approximately two hours later the defendant and Cruz joined Mary there. The defendant warned Mary, in Spanish, “not to say anything,” and she complied. At the hospital, Mary learned Thad had serious injuries, including a skull fracture.
Around dinner time, Mary went home to get some food and clothes. She expected to return to the hospital. The police and DSS employees were at the home. The defendant again warned Mary, in Spanish, not to say anything or she would have her locked up and DSS would take custody of the babies. A police detective at the home overheard the defendant tell Mary something in Spanish. Mary again denied having any knowledge of what had happened to Thad.
The police also interviewed Cruz. He explained that he had been the sole caretaker for Thad earlier that day when he noticed that Thad “had shortness of breath, difficulty breathing, and his eyes were rolling back to his head,” so he called 911. Cruz admitted that a similar incident had occurred the previous week, during which the child had diarrhea, difficulty breathing, and the same rolling eyes, and he was admitted for treatment at the hospital. Cruz claimed he had no idea how Thad’s skull fracture happened.
Later that night Mary learned that DSS was going to take custody of the children, and she then admitted she had seen Cruz abuse Thad and described what he had done. Mary also told the police that the defendant had threatened to have her
Dr. Stephen C. Boos, a board-certified pediatrician and the medical director of the Family Advocacy Center at Bay state Medical Center, testified as an expert witness. He specialized in child abuse assessment. He had no personal involvement in Thad’s medical care, but he had reviewed all of Thad’s medical records, including those for the emergency room visits and hospitalizations in February and March, 2008. When Thad was admitted to the hospital on March 6, 2008, he was having a seizure, which Dr. Boos testified was as an unequivocal indication that something abnormal was going on in Thad’s brain. He testified that if left untreated, a seizure may either stop by itself or continue “until the child’s brain runs out of sugar and oxygen and the child dies.” Regardless of the ultimate outcome, Dr. Boos testified that in his opinion such a seizure creates a substantial risk of death in a six month old infant. At the hospital, Thad received a series of medications until the seizure stopped.
Thad underwent a computer tomography (CT) scan of his brain, which revealed that he was suffering from multiple subdural hematomas containing both old and new blood. Dr. Boos explained that subdural hematomas always “result from some abnormal process,” most typically trauma. He estimated that the older blood was from about twenty-one days ago, and the new blood was most likely from a trauma that occurred less than seven days earlier, but in each instance Dr. Boos made clear that there was substantial “room for softness” in those numbers. Dr. Boos testified that there is a substantial risk of death from blood collecting around the brain.
In addition to the subdural hematomas, Dr. Boos testified that the CT scan revealed multiple lines of cracking that intersected in a rough H-pattem on Thad’s skull. Dr. Boos explained that this was a complex skull fracture and was more serious than a simple fracture because “it’s a sign of a more forceful impact, more significant trauma.” Dr. Boos testified that a simple fracture can occur when a child falls from a bed or changing table, but a complex fracture requires more force, such as a fall from a
Dr. Boos noted that hematomas and skull fractures can be related, but they can also be independently caused. He further testified that with respect to these type of injuries, there are often no visible signs of the injury, but it is possible to “feel a swelling over the skull fracture.” A skeletal examination of Thad did not disclose any other fracture. An examination of Thad’s eyes, however, revealed multiple retinal hemorrhages and a raw spot, or vitreous hemorrhage, both of which are associated with abusive head trauma and violent shaking of the head back and forth.
Dr. Boos concluded that Thad’s injuries were inflicted, not accidental. He further opined that a forceful impact to the head was a component of the inflicted injury, in addition to shaking the child. In his opinion, Thad’s injuries created a substantial risk of death. Death was averted by the medical care Thad received at the hospital.
Neither Cruz nor the defendant testified at trial, presenting their cases instead through cross-examination and argument. Cruz maintained that Mary caused Thad’s injuries. Based on this same theory, the defendant claimed that Mary was not credible, that no injury had occurred on February 29, and that Mary had lied to protect herself. Alternatively, the defendant argued that even if Thad was hurt, no harm or injury was readily apparent that should have prompted the defendant to help Mary obtain medical care for him at that time.
1. Sufficiency of the evidence. The defendant challenges the sufficiency of the evidence supporting her conviction of reckless endangerment of a child under G. L. c. 265, § 13L.
Mary provided eyewitness testimony that on February 29, 2008, Cruz dropped six month old Thad from above Cruz’s head to a tile floor and that Thad struck his head on the floor. The medical evidence showed that more recent subdural hematoma discovered in Thad’s skull occurred within seven days of March 6, 2008, a period that included the date Mary saw Cruz drop Thad. Additional medical evidence revealed that Thad suffered a complex skull fracture, and while the fracture and the subdural hematoma could be related, the fracture clearly established that the infant had been subjected to a significant force, such as being dropped from a five-foot height. This medical evidence was entirely consistent with Mary’s eyewitness
The defendant further argues that the evidence was insufficient to establish the third element of the offense, i.e., that the defendant wantonly or recklessly engaged in conduct that created a substantial risk or failed to take reasonable steps to alleviate such risk where she had a duty to act. First, the element requires proof of wanton or reckless conduct. Such conduct has long been understood in the criminal law as “intentional conduct . . . involving] a high degree of likelihood that substantial harm will result to another.”
Here, contrary to the defendant’s contention, there was ample evidence that she knew or should have known that there was a substantial and unjustifiable risk of harm to Thad. The testimony at trial showed that within minutes of the incident, Mary informed the defendant that Cruz had dropped Thad from a height above Cruz’s head onto the tile floor and that Thad struck his head on the floor when he landed. The testimony also permitted the
A person of common intelligence would understand that a significant blow to an infant’s head can cause serious bodily injury or even death. See, e.g., Commonwealth v. Gallison,
Despite this knowledge, the defendant did not merely refuse to take her teenage dáughter (who was too young to drive) to the hospital with Thad, but she also confiscated Mary’s cellular telephone, thus preventing her from even being able to summon an ambulance. In an effort to make sure that Thad’s fall was not discovered, the defendant sent Mary to her room and threatened to have her jailed and her children removed if she sought help. These actions permit an inference that the defendant knew that the fall might be serious and that, if discovered, it might criminally inculpate her boyfriend, Cruz. Taken as a whole, the evidence was sufficient to support a conclusion that the defendant knew of and consciously disregarded a substantial and unjustifiable risk. Cf. Commonwealth v. Levesque,
The defendant further claims that in these circumstances, she had no duty to act. The evidence was undisputed that Thad’s mother, Mary, was the defendant’s teenage daughter, for whom the defendant was responsible. That responsibility surely included helping fifteen year old Mary obtain medical care for her injured infant who resided in the defendant’s household, particularly where the defendant had taken Mary and Thad to various physician and hospital visits on other occasions. Furthermore, the defendant did not merely fail to obtain, or help Mary to obtain,
The defendant also argues that the evidence was insufficient to prove causation because no evidence was adduced that the lack or delay of medical care “caused [Thad’s] condition to become more serious.” The difficulty here is that the crime of reckless endangerment does not require proof of injury, only proof of a substantial risk of injury. See Commonwealth v. Roderiques,
2. Jury instructions. For the first time on appeal, the defendant challenges three aspects of the judge’s instructions to the jury. We review the challenges under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Freeman,
a. Duty to act. In connection with the defendant’s duty, under
“To prove [the] first element, the Commonwealth must prove that [the defendant] had a duty to act. The duty to act does not mean a duty imposed by statute or regulation. Ordinarily one who takes action owes a duty to everyone who may be affected to act reasonably.
“Our laws, both civil and criminal, impose a duty on people to act reasonably; that is, to conform to a standard of conduct. The standard of conduct is how a reasonable person under the circumstances would conduct herself or himself. . . .
“The Commonwealth must prove that [the defendant] was aware of and disregarded a substantial and just — unjustified risk that her omission, that is, her failure to get medical treatment for [Thad] on February 29 of 2008, in circumstances where she had a duty to him, was intentional and was a gross deviation from the standard of conduct that a reasonable person would have followed under the circumstances known to [the defendant].”
The instruction reversed the proper relationship between duty and the standard of behavior required of an individual after a duty is established. The judge’s instruction that “[o]ur laws, both civil and criminal, impose a duty on people to act reasonably; that is, to conform to a standard of conduct,” was incorrect. However much one might consider reasonable behavior the touchstone of a civilized society, we do not impose criminal liability for unreasonable behavior unless we have first established an underlying duty, normally emanating from specified acts or a defined relationship. In this case the judge instructed only on the defendant’s failure to act. It was therefore crucial to the Commonwealth’s case to establish that the defendant’s relationship to the victim created a legal duty, in this instance, to ensure that he receive medical attention. See generally Commonwealth v. Twitchell,
The remaining language of the instruction did not cure the problem. The phrase, “[ojrdinarily one who takes action owes a duty to everyone who may be affected to act reasonably” (emphasis added), was at best confusing and at worst, inasmuch as the charge against the defendant was for failure to act, misleading. Finally, the statement that “[t]he standard of conduct is how a reasonable person in the circumstances would conduct herself or hirpself” again invited the jury to assume the existence of a duty despite the fact that they had not been given the factual prerequisites to make such a finding.
In order to avoid such confusion in future cases we refer to District Court Model Jury Instruction 6.540 (May, 2011), which includes a definition of the duty to act, that is to “take reasonable steps to alleviate that risk to the child” pursuant to G. L. c. 265, § 13L.
“Parents and legal guardians have a legal duty to take reasonable steps to prevent harm to a child in their care. Those who accept responsibility as caretakers also have a duty to take reasonable steps to prevent harm to a child who is in their care. Other persons may also have a duty to alleviate a risk of harm to a child. You should look to the facts of this case to determine whether the Commonwealth has proven that the defendant had this duty to act.”
The defendant not only failed to contest the caretaker role before the jury (a role which the jury, properly instructed, could have found to be the basis of her duty), but also actively asserted that she was the victim’s caretaker, and that she had safeguarded his welfare in that role.
Nor did the judge err when he further instructed the jury, in response to a question, that Mary’s custody of Thad did not absolve the defendant of criminal liability if the elements of the charged offense were proved. The answer was one of common sense. Legal custody of a child does not absolve every other caretaker of criminal liability for their own acts related to that child. See Commonwealth v. Torres,
b. Causation. The defendant argues that the jury should have been instructed that the Commonwealth needed to prove that medical care would have actually alleviated a risk. As noted above, there is no such requirement. The crime requires only proof that, in this case, delay or blocking of medical care created a risk. See Commonwealth v. Hendricks,
c. Ciampa instruction. There is no merit to the defendant’s claim that the judge, sua sponte, should have given a so-called Ciampa instruction, see Commonwealth v. Ciampa,
3. Medical records. The defendant argues error in the admission of two statements contained in Thad’s redacted medical records, which were admitted in evidence. Specifically, one notation reads that “DSS/social work was involved ... in the past,” and the second notation states “[h]istory of abuse in past 12 months.” Although the defendant sought to exclude these portions of the medical records prior to trial, she did not object at trial to the admission of these statements, and we therefore review under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Whelton,
None of the prior instances involving DSS was discussed at trial. The notations in the medical record were brief and lacking in detail. Questions posed by the jury during deliberations suggest that they were clearly focused on the elements of the charged offenses and not any prior misconduct.
4. Vagueness. The defendant also claims for the first time on appeal that G. L. c. 265, § 13L, is unconstitutionally vague as applied to the circumstances of her case, in violation of the due
Judgment affirmed.
Notes
The codefendant, Raphael Cruz, was convicted of assault and battery of a child with bodily injury, and assault and battery.
A pseudonym.
Also pseudonyms.
The defendant obtained guardianship of the twins when they were bom, but in February, 2008, legal custody returned to Mary. The record does not specify any reason for the changes in custody.
In this joint trial, the codefendant was convicted of assault and battery on Mary.
DSS became known as the Department of Children and Families after the events at issue in this case. See St. 2008, c. 176, § 25.
Mary was placed in foster care on or about March 6, 2008.
Thad was released from the hospital on March 12, 2008. He required neurosurgical follow-up appointments and would be on medication for some period of time, but “in general,” Dr. Boos testified, Thad “appeared to be in good condition.”
The relevant portion of the statute provides:
“Whoever wantonly or recklessly engages in conduct that creates asubstantial risk of serious injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished ....
“For the purposes of this section, such wanton or reckless behavior occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury or sexual abuse to a child. The risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”
G. L. c. 265, § 13L, inserted by St 2002, c. 322, § 2.
There appear to be only two reported cases in Massachusetts that have substantively considered this offense, namely, Commonwealth v. Hendricks,
“This standard of culpability is reinforced by . . . statutory language explicitly providing that ‘wanton and reckless’ behavior ‘occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts . . . would result in serious bodily injury ... to a child.’ G. L. c. 265, § 13L.” Commonwealth v. Hendricks,
The notes to the instruction provide references, especially apposite here, to the role of a caretaker (“any household member entrusted with the responsibility for a child’s health or welfare”). 110 Code Mass. Regs. § 2.00 (1996). See, e.g., Adoption of Fran,
During trial, the defendant placed the blame for the injuries on her daughter
The jury questions related to the element of duty, the definition of touching without justification, and the difference between “substantial injury” and “bodily injury.”