Opinion
13-P-1916
05-08-2015
COMMONWEALTH v. PAULA FERGUSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant Paula Ferguson appeals from her conviction, after a six-day bench trial, of wantonly or recklessly permitting bodily injury or permitting another to commit an assault and battery on a child under fourteen in her care and custody, in violation of G. L. c. 265, § 13J(b). She argues that the evidence was insufficient to prove the crime of which she was convicted. We affirm.
The defendant was tried together with her husband, each on four-count indictments involving two victims, their twin children. The judge acquitted the defendant of three counts, and on the count charging a violation of G. L. c. 265, § 13J(b), permitting "substantial bodily injury," found the defendant guilty of the lesser-included offense of permitting "bodily injury."
Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence showed that the defendant and Shawndell Watts, her husband and codefendant, had joint care and custody of the victim, their infant daughter. On August 13, 2008, the defendant took the victim, who was five months old, to the emergency room for treatment of a badly burned hand. The evidence permitted the inference that Watts had immersed the victim's hand in boiling water while the defendant slept, although the defendant persisted in the explanation that Watts had offered, that a caustic product he used to remove facial hair had caused the burn.
The victim's twin brother and the defendant's older daughter also lived with them.
Further examination of the victim revealed a serious brain injury and fractured ribs. Medical testimony at trial suggested that the subdural hematoma was caused by either traumatic force to the skull or choking, and that the fractures were caused by squeezing with substantial force by hands large enough to surround the child's entire rib case. The head injury was two to six weeks old, and the rib fractures were three to six weeks old. Both injuries would have caused the baby noticeable pain, crying, and fussing.
The defense established that the defendant had appropriately taken the victim and her twin brother to regular check-ups when they were two weeks, two months, and four months old. At the last check-up on July 14, 2008, a month before the burn incident, the pediatrician noted an unusual increase in the circumference of the victim's head. During a home visit on July 25, 2008, the family's Department of Children and Families case worker noticed that the victim's head seemed larger and tilted, and that she did not seem focused or responsive; however, the defendant's explanations were satisfactory to the case worker.
Under the familiar standard of Commonwealth v. Latimore, supra, we must review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found that the Commonwealth proved every element of the crime beyond a reasonable doubt. The only element the defendant contests on appeal is whether the evidence was sufficient to prove that she either wantonly or recklessly permitted the baby's injury or permitted another to commit an injurious assault and battery.
In the context of G. L. c. 265, § 13J(b), wanton or reckless conduct means failing to act where there is a "high degree of likelihood that substantial harm will result to another." Commonwealth v. Robinson, 74 Mass. App. Ct. 752, 759 (2009), quoting from Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). Exactly how the injuries occurred or who caused them is immaterial. Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 423 (1999); Commonwealth v. Traylor, 86 Mass. App. Ct. 84, 91 (2014).
The circumstantial evidence in this case was sufficient to show that a reasonable person, knowing what the defendant knew in the month leading up to the burn incident, "would have realized that there was a high likelihood that [the victim] would suffer a substantial bodily injury" if she took no action to protect her child. Commonwealth v. Robinson, supra at 758. The evidence showed that the victim sustained serious head injuries and rib fractures during the month between the last regular doctor's visit and the day the victim was hospitalized as a result of the burn incident. These injuries would have provoked cries of distress noticeable to the defendant, her primary caretaker. "The Commonwealth satisfied its burden by showing that the injuries inflicted on more than one occasion were such that an ordinary person having the care and custody of the child would have recognized the child was being exposed to inflicted bodily injuries." Commonwealth v. Garcia, supra.
Judgment affirmed.
By the Court (Green, Grainger & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 8, 2015.