74 Mass. App. Ct. 752 | Mass. App. Ct. | 2009
The defendant was convicted of wantonly and recklessly permitting substantial bodily injury to a child in her custody in violation of G. L. c. 265, § 13J(b), inserted by St. 1993, c. 340, § 2. On appeal, she claims that there was insufficient evidence to support her conviction, and that the judge’s instruction on wanton and reckless conduct and the prosecutor’s closing argument created a substantial risk of a miscarriage of justice. We affirm.
1. Background, a. The 911 call. On August 3, 2005, at approximately 3:00 a.m., the defendant called 911 from a pay phone to report that her thirteen year old daughter, Allison,
While the EMTs were still at her apartment, the defendant returned from having made the 911 call. The defendant told the EMTs that Allison did not have any previous medical history. She did note that Allison had been complaining of “some abdominal discomfort” for a few weeks and that she had been losing a lot of weight. When Efstathiou and Cournoyer lifted Allison off the couch to put her on a stretcher, Efstathiou realized that she “had no muscle tone at all.” Her bones were so exposed that he feared that they would injure her by lifting her.
As the EMTs brought Allison out of the apartment building, paramedic Len Shubitowski arrived. Once inside the ambulance, Shubitowski saw that Allison’s eyes were open but unfocused, she was not “interacting with the environment,” and she was making “unintelligible moans.” Her breathing was fast, nearly
b. Allison’s condition. The defendant, who accompanied Ef-stathiou in the ambulance that brought Allison to the hospital, told him that over the previous few weeks Allison had been experiencing some swelling in her belly and drainage from the area of her navel. During that same time period, Allison’s appetite had become poor and she lost a lot of weight. She eventually became so weak that she was no longer able to walk up the stairs to use the bathroom. After she had an “accident,” the defendant managed her incontinence with adult diapers and a bucket she placed next to the couch to prevent any recurrence.
Soon after Allison was admitted to the hospital, Lisa Allee, a clinical social worker, was called into the pediatric intensive care unit (ICU) to observe Allison. Allee, who had experience with malnourished children, had never seen a child as emaciated as Allison. Allison, who normally weighed 115 pounds, weighed only eighty-one pounds at the time of her admission to the hospital. Allison had decubitus ulcers, i.e., bed sores, on her lower back which Allee had never seen on an adolescent who was not paralyzed. Allison remained in critical condition for the first month of her admission, and was kept in the pediatric ICU for over a month.
After seeing Allison, Allee interviewed the defendant to find out what had happened. Although the defendant behaved defensively during the twenty-minute interview, she did reveal that two or three weeks earlier, Allison had pierced her own navel. Since that time, her belly began to swell and discharge pus. Afterwards, Allison only wanted to lie on the couch, and her appetite decreased to the point that she was “eating very little.” The defendant admitted that she had not brought her children to a doctor since they were in elementary school because “she was afraid that the doctor would do something.”
c. Medical evidence. Dr. James Borger, a pediatric surgeon, treated Allison at the Boston Medical Center. Borger observed that Allison was “obviously very malnourished” and that there was stool and pus oozing from a wound near her navel. He confirmed the existence of bed sores on her back, which Borger thought was “very, very unusual” on a thirteen year old girl.
Surgery revealed that Allison had a large amount of pus, peri-tonic fluid, and stool in her abdominal cavity. Her omentum, i.e., the fatty layer the covers the bowel, was so inflamed that it had adhered to the bowel. Borger discovered three or four perfora
For Dr. Borger, Allison was the sickest child of her age he had treated in almost thirty years who did not die. Based on her condition, he opined that the onset of her infection must have occurred weeks earlier, and that it would have taken her a similar period of time to lose thirty-four pounds. He also believed the infection would have caused “a significant amount of pain,” and that pain would have begun within hours of the infection’s onset.
Given Allison’s unresponsive state when she was brought to the hospital, Borger believed that she would have died in the next few days without medical intervention. If she had been hospitalized at the onset of the infection, Allison would have still required surgery for her perforated bowel, but her course of treatment would have been shorter and she would not have been in such an “extreme condition.”
d. The defense. The defendant’s son testified that Allison became sick in early July, and she attempted convalescence on the couch. Although her belly swelled, the swelling also subsided, which led Allison’s family to believe she was getting better. She remained alert and conversational and was eating solid food until August 2, when she became “out of it.” She did not appear to be or complain that she was in pain, and the defendant took care of her during her illness.
Allison testified to her scholastic aptitude, and that she pierced
2. Discussion, a. Sufficiency of the evidence. The defendant claims that there was insufficient evidence to support her conviction of recklessly permitting substantial bodily injury to a child in her custody. When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt” (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475 (2008). Rather, the relevant “question is 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, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, supra.
When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Commonwealth v. Latimore, supra at 677-678. To prove a violation of G. L. c. 265, § 13J(b), the Commonwealth must prove beyond a reasonable doubt that (1) the defendant had care and custody of a child, (2) the child was under fourteen years of age, (3) the child suffered substantial bodily injury, and (4) the defendant wantonly or recklessly permitted the child to suffer substantial bodily injury. “Substantial bodily injury” is defined 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).
In the light most favorable to the Commonwealth, the jury were entitled to conclude the following. Allison became sick in early July, 2005, and her condition became progressively worse until her hospitalization. Her appetite bordered on the nonexistent, and she was extremely dehydrated. Even though she was already thin, her weight plummeted thirty-four pounds during her illness. Medical personnel believed this would have taken weeks to occur. Allison’s muscle tissue was so seriously deteriorated that a social worker, who had experience with malnourished children, characterized Allison as the most emaciated child she had ever seen.
In addition to her severe weight loss, which alone would have alerted a reasonable person that Allison was in need of medical care, see Commonwealth v. Chapman, 433 Mass. 481, 484 (2001) (malnutrition or dehydration may cause a “substantial impairment of the physical condition” for purposes of § 13J), she also exhibited extraordinary medical problems, not the least of which included the foul stench of the pus and stool that were oozing from the hole in her swollen abdomen below her navel. This obvious, if not flagrant, abnormality was coupled with the fact that Allison was so weak that she could no longer negotiate the stairs to the bathroom to carry out normal excretory hygiene. In fact, her incapacity was so complete that she had developed bed sores on her back, which also indicated that she had not moved for weeks. Rather than seeking immediate medical assistance for Allison in light of these startling circumstances, the defendant gave her a bucket and then diapers to prevent her from soiling the couch.
The defendant also claims that the evidence failed to establish that her conduct caused Allison’s injuries. We disagree. Wanton or reckless conduct may occur by act or omission where there is a duty to act and the failure to so act provides a “high degree of likelihood that substantial harm will result to another.” Commonwealth v. Welansky, supra. See Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 419-420 (1999) (§ 13J criminalizes omissions that result in child abuse). Allison was in the defendant’s care and custody, and thus the defendant unquestionably had a duty to provide for her daughter’s well-being. See Commonwealth v. Torres, 442 Mass. 554, 568 (2004); Commonwealth v. Pana-gopoulos, 60 Mass. App. Ct. 327, 329 (2004). Moreover, the fourth element of § 13J(b) is phrased in terms of inaction, i.e., permitting a child to suffer serious bodily injury. G. L. c. 265, § 13J(6).
Here, there was more than ample evidence that Allison’s unattended infection resulted in holes in her intestines, her cecum and her duodenum, which required five surgeries to correct. In Dr. Borger’s nearly thirty years of experience, Allison was the sickest child he had ever treated who did not die, but a few more days of inaction would have relieved her of that distinction. While earlier medical intervention would not have prevented all the harm that befell Allison, it would have shortened the course of her illness, prevented her from becoming so extremely sick, and diminished the pain she experienced. The evidence, when viewed as a whole, was more than sufficient to permit a rational trier of fact to conclude that the defendant’s wanton or reckless delay in seeking medical care permitted Allison to suffer a substantial bodily injury.
b. Jury instructions. The defendant also claims that the judge
The interest of a parent in the care, custody, and control of his or her child is a well recognized fundamental liberty interest. Stanley v. Illinois, 405 U.S. 645, 651 (1972). Troxel v. Gran-ville, 530 U.S. 57, 66 (2000). See Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”). Put differently, there is a “private realm of family life which the state cannot enter.” Custody of a Minor, 375 Mass. 733, 737 (1978), quoting from Prince v. Massachusetts, 321 U.S. 158, 166 (1944). However, “family autonomy is not absolute, and may be limited where, as here, ‘it appears that parental decisions will jeopardize the health or safety of [a] child.’ ” Custody of a Minor, supra, quoting from Wisconsin v. Yoder, supra at 234. In fact, “[wjhere
In the present case, the defendant did not dispute at trial that Allison’s perforated intestines and her infection posed a high likelihood of substantial bodily injury.
There was no evidence offered, nor argument made, which suggested that the reason for the defendant’s inaction was based on her right to refuse medical treatment for her daughter. Even if there had been, given the near-death nature of Allison’s condition and her urgent need for medical attention to protect her
There is similarly no merit to the defendant’s claim that the judge’s wanton and reckless conduct instruction was infirm because it failed to take into account that Allison was qualified to, and did herself, decide to forgo medical care. Here, again, the defendant did not request an instruction to this effect, and the evidence would not have supported it if she had.
Whether Allison was qualified to make a life-or-death decision depended upon, among other things, her maturity and whether she was properly informed of the consequences of forgoing medical care. See Matter of Rena, 46 Mass. App. Ct. 335, 337 (1999). The record does not permit us to conclude that Allison was mature or informed. In certain contexts, as the defendant properly maintains, a mature minor may be entitled to make informed medical decisions. See Baird v. Attorney Gen., 371 Mass. 741, 754-755 (1977). But the defendant has failed to bring to our attention any authority to support the notion that a thirteen year old child may legally be deemed “mature.” Contrast 110 Code Mass. Regs. § 2.00 (2008) (Department of Children and Families regulations state that “[a] child who is 14 years old or older is presumed to be a mature child”).
The defendant’s counterargument is that Allison was an excellent student, who did exceptionally well on her Massachusetts Comprehensive Assessment System exam, and should therefore be permitted to make such an important decision. But maturity is more than intelligence, and a proper evaluation of maturity
With that said, we need not decide whether Allison was “mature” because even if she were, there was no evidence that she made an informed decision to decline medical care with full knowledge of the consequences. To the contrary, the evidence showed that she had no medical information related to, or appreciation for, the critical nature of her condition. In fact, she admitted that if something were seriously wrong “inside [her] body” she would need to see a doctor. In light of the evidence of the dire nature of Allison’s condition, and the obvious symptoms of something catastrophic occurring in her body, we cannot conclude that Allison made an informed choice about refusing medical treatment. Without a basis in the record for the instructions the defendant suggests, we cannot say the judge committed an error, let alone created a substantial risk of a miscarriage of justice, by not providing them to the jury sua sponte. See Commonwealth v. Monico, 373 Mass. 298, 299 (1977) (“a defendant is not entitled to a charge on a hypothesis which is not supported by the evidence”).
c. Closing argument. Finally, the defendant claims, for the first time on appeal, that the prosecutor’s closing argument overstated the defendant’s duty to seek medical care for Allison. Because there was no objection, our review is limited to whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Bonds, 445 Mass. 821, 836 (2006); Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 158 (2008). Specifically, the defendant claims the prosecutor’s argument misstated the law by asserting the defendant had a duty to seek medical care for Allison based on the various factors that would have indicated to a reasonable person that she was dangerously ill. The portions of the argument sounding the challenged theme are as follows:
“We all know that teenagers will lie on the couch for a*764 long time watching television; but when you are ordinarily a healthy, active, 13-year-old, essentially confined to the couch for a period of at least two or three weeks, that is the time to call the doctor. It is required, it’s not optional.”
“[W]hen your ordinarily healthy, active, 13-year-old child has swelling, maybe twice, [over] a period of several weeks in her belly, a call to the doctor is not optional. A hospital visit [is] not at your discretion. It is mandatory.”
“You heard Dr. Borger tell you, ladies and gentlemen, that that degree of weight loss can’t happen in hours or days, it happens over a period of weeks. When you are watching that happen to your own daughter a call to the doctor is not optional, it’s not a choice that you make, it’s required. A hospital visit is a necessary step.”
“[A]t some point pus began oozing . . . from a perfectly circular, roughly one-centimeter hole beneath her belly button. When that begins to happen, when you have a brown, foul[] smelling ooze, that you now know from Dr. Borger was a combination of bodily fluid and feces, a call to the doctor is not optional. The law does not permit a parent to simply say: Well, maybe she’s getting better because the pus is oozing out through a hole beneath her belly button, so I think it’s okay.”
“At the point at which one is diapering a 13-year-old child who doesn’t have a preexisting medical condition that would require diapers ... a call to the doctor is not an option, it is not a choice, it is required.”
When the challenged remarks are read in context of the entire argument, the evidence adduced at trial, and the judge’s instruc
Judgment affirmed.
A pseudonym.
According to the defendant, Allison normally ate three meals a day as well as cookies and snacks. She knew Allison was losing weight, but the defendant said Allison was neither suffering from anorexia nervosa nor taking medication. The defendant and her son were properly nourished.
Prior to the incident, Allison had been a good student, especially in reading and writing, and achieved the second highest score in her entire school on the literacy section of the Massachusetts Comprehensive Assessment System test. A teacher testified that Allison had always been thin but was also healthy and active.
Bed sores are caused by staying or lying in the same position for an extended period of time, which causes pressure to be exerted in the location of the sore. Bed sores take weeks to develop.
Although Allison’s appendix had a small hole in it, it was not inflamed, which would occur if she had appendicitis. Rather, because the inflammation was secondary, Dr. Borger believed that it was probably caused by the same infection that eroded her bowel in other areas.
Wanton or reckless conduct is conduct involving a grave risk of harm, undertaken by a person with indifference to or disregard of the consequences of such conduct. Commonwealth v. Welansky, 316 Mass. at 399. “[E]ven if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct ... if an ordinary normal man under the same circumstances would have realized the gravity of the danger.” Id. at 398-399. Thus, under Welansky, “[c]onduct which a reasonable person, in similar circumstances, would recognize as reckless will suffice.” Commonwealth v. Catalina, 407 Mass. 779, 789 (1990).
The defendant did suggest in her closing argument that Allison’s condition was not caused by the botched piercing but instead was the result of appendicitis.
See note 6, supra.
The defendant’s reliance on Belchertown State School v. Saikewicz, 373 Mass. 728 (1977), is misplaced. Saikewicz was a profoundly mentally disabled man who was unable to comprehend the benefit of chemotherapy treatment (that would not cure him), but who would experience the pain and fear attendant to it. Id. at 731-732, 754. Here, there is no basis in the record to conclude that Allison did not understand that medical treatment would, and did, save her life.
Given the absence of error in the prosecutor’s closing argument, we reject the defendant’s assertion that it compounded the error in the jury instructions, which we similarly found not to exist.