43 Mass. App. Ct. 733 | Mass. App. Ct. | 1997
Lead Opinion
The Commonwealth appeals from a postverdict order allowing the defendant’s motion for a required finding of not guilty on a charge of assault and battery with a dangerous weapon. Review of the order is governed by the sufficiency of the evidence standard set out in Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), see Commonwealth v. Doucette, 408 Mass. 454, 456 (1990); Commonwealth v. Torres, 24 Mass. App. Ct. 317, 323-325 (1987), in contrast to review of an order allowing a motion for a new trial under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), where the judge’s assessment of the weight of the evidence is irrelevant. See Smith, Criminal Practice & Procedure §§ 1921 & 1921.5 (Supp. 1997).
The victim was a seventeen month old child, the son of the
The defendant was charged with mayhem (this was dismissed by the judge at the close of the Commonwealth’s evidence); assault and battery with a dangerous weapon; and simple assault and battery (based on bruise marks, not on the burns). The Commonwealth’s theory was that the bums could not have been caused by the shower and must have been caused instead by the defendant’s application of some unknown scalding agent —■ probably heated water or a chemical. After the jury returned verdicts against the defendant on both charges, the judge ruled that the Commonwealth’s evidence on the charge relative to the burns was too tenuous and ordered that charge dismissed. Sentencing on the simple assault and battery conviction was delayed pending this appeal.
The jury had an evidentiary basis for rejecting the defendant’s story that the child was scalded by the shower. (His testimony was that he left the child in the shower for a couple of minutes and that the water temperature must have risen suddenly — a phenomenon that the defendant and his brother testified had occurred to them on occasion during showers.) The bum specialist who treated the child’s burns in the hospital testified that the incidence of distinct bums in three separate locations (“pattern bums”) was inconsistent with the more generalized burn that would be caused by water from a shower. It could be caused by
The case thus 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. See, e.g., 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 defendant on morning when she suffered multiple fractures of bones and other severe injuries). Here the mother testified that the child had no bum when she left him to take her bath. As in the Woods case, the defendant was punishing the child shortly before and at the time of the bums, which, it could be inferred, coincided with the child’s screams. Bums to children caused by ordinary household accidents are not uncommon, particularly in kitchens, when they may be caused by the tipping of a cooking pot, or contact with a heating surface; but these bums occurred in a bathroom, on a different floor from the kitchen, and no testimony suggested the presence of any hot element in the bathroom other than the hot water taps. These, as we have said, the jury could exclude as the heat source that caused the bums.
Order allowing motion for required finding reversed.
Case remanded for sentencing on the jury verdicts.
Dissenting Opinion
(dissenting). I would affirm the order allowing the defendant’s motion for a required finding of not guilty on the charge of assault and battery with a dangerous weapon. I do not think the trial judge erred.
The Commonwealth must prove its case beyond a reasonable