Commonwealth v. Garcia

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16-P-892 Appeals Court
COMMONWEALTH vs. ELVIS GARCIA.
No. 16-P-892.
Bristol. April 9, 2018. - September 24, 2018.
Present: Meade, Hanlon, & Blake, JJ.
Child Abuse. Assault and Battery by Means of a Dangerous
Weapon. Reckless Endangerment of a Child. Practice,
Criminal, Instructions to jury, Argument by prosecutor,
Duplicative convictions.
Indictments found and returned in the Superior Court
Department on April 1, 2011.
The cases were tried before E. Susan Garsh, J.
John J. Connors for the defendant.
Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.
HANLON, J. After a jury trial, the defendant, Elvis
Garcia, was convicted of assault and battery on a child with
substantial bodily injury, G. L. c. 265, § 13J (b); assault and
battery by means of a dangerous weapon, G. L. c. 265, § 15A (b);
2
and reckless endangerment of a child, G. L. c. 265, § 13L.1 He
now appeals, challenging the sufficiency of the evidence,
various aspects of the judge's instructions to the jury, and the
prosecutor's closing argument. We affirm, and address the
defendant's claims in turn.
1. Background. The jury heard the following evidence.2 On
January 29, 2011, James,3 the four year old victim, was admitted
to Boston Children's Hospital (Children's Hospital) with a
severe anal wound as well as extensive bruising over multiple
areas of his body. James was seven years old at the time of
trial and he testified that the defendant, a friend of his
mother, inflicted the bruises as well as the anal injury by
hitting him with a belt.
James's mother4 first developed a friendship with the
defendant in the spring of 2010, shortly after the dissolution
of her relationship with James's father. James, then three
years old, lived with his mother and his older sister and
1 The defendant also was charged with one count of
intimidation of a witness. The judge allowed his motion for a
required finding of not guilty as to that offense at the close
of the Commonwealth's case; there was no objection.
2 We recite the facts in some detail, given the issues
presented.
3 A pseudonym.
4 The mother invoked her privilege under the Fifth Amendment
to the United States Constitution and did not testify at trial.
3
brother in New Bedford. For a number of years, the mother had
been addicted to "pills,"5 but, prior to June of 2010, she was
able to keep her life "in control" and maintain her job as a
hair stylist.
Prior to June of 2010, the apartment where the family lived
was clean and "nice." James attended day care full time, and
his sister attended with him in the afternoon at the end of her
school day. Prior to June of 2010, James and his brother and
sister appeared happy, clean, and normal. James would see his
maternal grandmother almost every day and, along with his
siblings, would attend family parties and holiday gatherings.
After June of 2010, James's extended family saw the mother
and James less frequently, and noticed that they attended fewer
family events and parties. James's siblings would sometimes
attend family events when the mother and James did not. Over
the course of the summer and fall, on various occasions when
family members did see James, some reported noticing bruises on
his face. The cleanliness of the family's apartment
deteriorated, and the mother was terminated from her job after
being increasingly absent and late. During that time, both the
mother and James were at the defendant's home almost every day.
5 There is nothing in the record to indicate more
specifically what kind of pills were at issue.
4
In addition, the mother frequently would leave James alone with
the defendant, sometimes for hours or even days.
During the summer of 2010, James's day care teachers
noticed that James began to change. When he returned from a
June vacation in Florida, James was distant and not like his
usual self. When he got in trouble, he would become
particularly emotional and start to cry, which had not been the
case previously. The defendant started dropping James off on
some days, and at one point told his teacher, "[I]f he doesn't
listen, just tell him that you guys can . . . call me." At the
end of July, his teacher noticed that James began to cling to
her "more than usual." Also in July, a teacher noticed an
apparent burn mark on James's inner thigh. In August, on one
occasion, she noticed scratches on his face. Later that month,
the defendant brought James in with a bruise on his cheek and
said, "I'm sure he'll be perfect for you today."
Also, that month, the mother changed the emergency contacts
and the list of individuals permitted to pick up James from day
care; she removed all of the other family members who had been
on the list, including James's grandmothers and others, leaving
only herself and the defendant on the list.6 James, who had had
very good attendance previously, began to be absent frequently
6 The mother did not revoke the access of at least some of
these family members for James's sister.
5
in July and August of 2010. In September, the day care program
discharged him because of excessive unexcused absences.
In July of 2010, James's maternal grandmother came to visit
the mother at work. The grandmother saw the defendant waiting
outside in a car with James in his car seat. She was happy to
see James as she had not seen him for a long time, and she ran
to the car. James looked sad and was very quiet, and not like
his normal self. As the mother came out of her workplace, the
defendant told her forcefully to get into the car, ending the
encounter.
In August of 2010, the mother allowed James's paternal
grandmother to take him on a vacation to Florida. During the
trip, James complained frequently that his "bum" hurt. He would
sit sideways, and would cry when he went to the bathroom. His
grandmother looked at the area and saw a small cut.
In mid-October, after James turned four years old, he
visited with his maternal grandmother after a family apple-
picking trip; this was the first time that she had seen James
since July. Although James seemed happy, he told her that "his
butt hurt." She gave him a bath, and observed that "his butt
was red" and that he had a short, deep cut in the area.
On October 25, 2010, the mother took James to his
pediatrician. The pediatrician observed a rash on James's
scrotum, buttocks, and anal area. He prescribed an antibiotic,
6
an anti-inflammatory cream, and a medicine to protect the skin
in the area. At a follow-up appointment on November 9, the
doctor noted that there was a small ulcerative lesion around the
anus, but that the rash did not seem worse, and had cleared on
the buttocks. At a further follow-up visit three days later, he
observed that the area appeared to be improving. On December 6,
James returned to the office, and the doctor observed that the
area appeared worse and had ulcers. He referred James to
Children's Hospital the same day.
James was admitted to Children's Hospital on December 6,
2010,7 where doctors observed an irregularly shaped ulcer under
the scrotum, and another ulcer on his anal area. James
underwent various tests and examinations to rule out potential
causes of the ulceration. Doctors ruled out infection but were
ultimately unable to determine a cause for his condition. At
the time of his discharge, after a six-day hospitalization,
James's condition had "improved somewhat," although the ulcers
were still present.
In late 2010, James's maternal grandmother obtained the
assistance of James's second cousin, who is an attorney, in
filing a petition for legal guardianship of James. On January
7 Medical staff noted during James's hospital stay that he
had a faint black eye with some bruising underneath the left
eye.
7
27, 2011, the petition was allowed after a hearing at which
James's father assented to the guardianship and the mother did
not appear. James's maternal grandmother had last seen James in
the mother's car two days earlier at his sister's school. At
that point, she noted that James was able to sit without
complaining, and that he had no visible injuries.
After the cousin obtained guardianship of James on behalf
of his maternal grandmother, the cousin was unable to locate
either the mother or James until January 29, when the cousin was
notified that the mother was in police custody. The mother
refused to disclose James's specific location, but she
eventually connected the cousin with Elizabeth Quinn, who was
the girl friend of the defendant's best friend. The cousin
engaged in "several conversations several minutes at a time"
with Quinn over approximately twenty-five minutes, with male
voices in the background of the telephone calls. Quinn
eventually told the cousin to come to an intersection a couple
of houses away from the defendant's home to receive James.
Quinn directed her to report there with "no police."
Quinn then retrieved James from the defendant's apartment,
where James was sleeping on the couch. She brought him to the
agreed-upon street corner and handed him to the cousin, who was
accompanied by a State police officer. James was having a
difficult time walking. He was extremely upset and crying,
8
saying, "Make it go away," and that his "bum" hurt. He could
not sit down. The cousin and the officer brought James to St.
Luke's Hospital, where, a nurse later testified, "[h]e appeared
afraid to me, he wouldn't . . . let me touch him." She observed
"multiple bruises to his face, his eyes, a good per cent of his
body, his back, his legs, arms." She identified photographs of
the injuries she observed, including photographs of James's
rectum, penis, and scrotum. The photographs were admitted in
evidence. After several hours, hospital staff made a decision
to transfer James to Children's Hospital.
At Children's Hospital, examination confirmed that James
had extensive bruising and abrasions over multiple areas of his
body, including his forehead, cheek, arms, back, waist,
buttocks, inner and outer thighs, legs, and shins. Superimposed
on the bruising on James's thigh were three curvilinear marks
that were suggestive of having been struck by a "flexible
implement that's been doubled" onto itself. He had a cut under
his chin, and blood behind his right eardrum.
James also had a very deep anal wound: a widely split
laceration extending from just behind his scrotum to his
tailbone. His anus was completely detached from the skin around
it and was "floating way up inside the buttocks." The wound had
accumulated filth and fecal debris, and it appeared to be at
least a couple of days old but was not infected. There was no
9
abscess and no evidence of ulceration that could explain the
injury. James ultimately required surgery to reconstruct the
area.
Dr. Steven Fishman, James's surgeon, opined that James's
anal wound was induced externally by blunt force trauma, and
that no natural disease process or hygiene issues could have
created it. Dr. Fishman testified that, in over twenty years of
experience as a pediatric surgeon, he had previously only seen a
completely "floating" anus as a result of surgery. Dr. Fishman
noted that, because of the tensile strength in the tissues in
the area, if there is impact, there is a particular
susceptibility to tearing in that spot. Without successful
surgery to reconstruct his anus and perineum, Dr. Fishman
testified that James risked having no control over defecation,
or being unable to defecate.
On January 31, 2011, police officers went to the
defendant's apartment to search the premises. They knocked on
the door, loudly said "Police," and waited. No one came to the
door. They knocked and announced themselves several additional
times and, receiving no answer, kicked the door in and entered
the apartment. The defendant was in the living room of the
apartment at the time they entered.
Officers recovered a number of items from the defendant's
apartment, including a black belt with a red-brown stain on the
10
buckle found in a white plastic trash bag in one of the
apartment's bedrooms. Deoxyribonucleic acid analysis of the
stain revealed a mixture of at least two individuals, with the
profile of the major contributor to the sample matching James.
The defendant and the mother were excluded as contributors to
the mixture.
James testified that he had lived with the defendant along
with his mother, who was "sometimes" there. James testified
that he did not like spending time with the defendant because
the defendant used to put "salt" in James's "butt," put James in
an attic closet, and stuck James's head in the toilet. James
testified that the defendant did each of these things more than
once. As to the salt, James testified that it "looked like salt
and it was white," and it "stinged a little bit" when the
defendant used it. The defendant would bend him over, hold him
down, and swirl the salt in a glass cup.8 James said distinctly
that the defendant put the "salt in my butt," rather than on it.
The defendant also would hit James "like everywhere" with a
black belt. When he was shown images of the bruises on his
body, James testified that the defendant had caused them with
8 James indicated that the salt was not wet or mixed with
water.
11
the belt.9 Shown an image of his anal wound, James testified
that the defendant had caused that wound with the belt as well.
2. Discussion. a. Sufficiency of the evidence. The
defendant argues that there was insufficient evidence for a
reasonable jury to find him guilty of assault and battery on a
child causing substantial bodily injury based on the theory that
the defendant caused the injury by striking James with a belt on
the buttocks.10 In particular, the defendant argues that the
Commonwealth's medical evidence was insufficient to demonstrate
that such a blow -- on the buttocks, as opposed to on the anus
or scrotum -- could have caused the injury.11 He also points to
his own expert's testimony in support of his argument.
In the light most favorable to the Commonwealth, there was
ample evidence for the jury to draw the conclusion that a strike
from the belt caused the injury; the judge limited the jury's
9 When presented with one image of his bruised hip area,
James reported that the defendant caused the injuries "[w]ith
the salt and the belt." For all of the other images, James
testified that the defendant caused them with just a belt.
10 The verdict slip for this charge offered the jury options
to find the defendant guilty based on one or both of two
theories: "[t]ouching [James] in the area of his anus, scrotum,
or buttocks with a belt," and "[s]preading [James's] buttocks
cheeks." The jury selected the former option and not the
latter.
11Although the defendant frames his argument as a flaw in
the judge's instructions offering the theory to the jury, we
view the challenge essentially as based in the sufficiency of
the evidence.
12
consideration, saying, "[F]or this particular charge, you must
be satisfied that the Commonwealth has proved beyond a
reasonable doubt that the defendant touched [James] in the area
of his anus, scrotum or buttocks with a belt and/or by spreading
his buttock cheeks. No other alleged touching is within the
scope of this indictment." James testified at trial that the
defendant caused the anal wound by hitting him with a belt. In
addition to other circumstantial evidence, James's testimony was
corroborated both by that of Dr. Fishman, who opined that blunt
force trauma caused the wound, and by evidence of James's blood
on a belt found in the defendant's home in a plastic bag.
Expert testimony proffered by the defendant, to the effect that
a blow to the buttocks would not have caused the wound because
the buttocks would have protected the perineal area, did not
cause the Commonwealth's case to deteriorate, as the jurors were
entitled to discredit that testimony. See Commonwealth v. Bush,
71 Mass. App. Ct. 130, 137 (2008). We are satisfied that the
judge's instructions fairly explained the charge to the jury; if
there was any error in including a reference to the buttocks in
the charge or on the verdict slip, the defendant did not object
and we see no risk of a miscarriage of justice.
The defendant also argues that there was insufficient
evidence for the jury to find him guilty on the charge of
reckless endangerment of a child, because the Commonwealth did
13
not provide evidence that "the injuries the Commonwealth
included as conduct under this theory created the risk of
additional injury." The defendant's argument appears to be
premised on the mistaken belief that G. L. c. 265, § 13L,
requires that the defendant's actions in creating the risk of
injury not result in actual injury. This is not an element of
the offense. A risk of injury may "come to fruition in the form
of an actual injury." Commonwealth v. Roderiques, 462 Mass.
415, 423 (2012) (defendant properly convicted of reckless
endangerment of child where infant had fractures of arm, legs,
ribs, spine, and clavicle). Although actual injury is not
required to satisfy the statute, it is not necessary that injury
be absent. Here, the jury could have properly found that the
defendant's conduct in causing James's injuries created
substantial risk of serious bodily injury. There was no error.
b. Jury instructions. The defendant argues that it was
improper for the judge to define bodily injury in the course of
his instruction on the offense of assault and battery on a child
causing substantial bodily injury.12,13 The defendant did not
12Specifically, he contends, "When instructing the jury on
the assault and battery on a child causing substantial bodily
injury charge, the judge gave the statutory definitions of both
substantial bodily injury and bodily injury and included the
possibility that a blow with a belt to the buttocks caused the
perineal injury. The definition of bodily injury was not
pertinent to the charge and there was no evidence that a belt to
14
the buttocks could have caused the perineal injury. These
errors combined to lower the Commonwealth's standard of proof
and undercut a central theory of the defense."
13 General Laws c. 265, § 13J, provides as follows:
"(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 burn, 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 physical
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 . . . .
"Whoever commits an assault and battery upon a child and by
such assault and battery causes substantial bodily injury
shall be punished . . . .
"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
battery upon such child, which assault and battery causes
bodily injury, shall be punished . . . .
15
object to the instruction at trial and, for that reason, "the
claims he now raises on appeal are not preserved. See
Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). We therefore review
to determine whether an error occurred and, if so, whether that
error created a substantial risk of a miscarriage of justice."
Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013).
"A trial judge is obligated to instruct the jury on all
aspects of pertinent law applicable to issues raised in the case
so that the [jurors] understand[] the basis for their verdicts."
Commonwealth v. Allen, 54 Mass. App. Ct. 719, 724 (2002). It is
proper for a judge to define technical terms in jury
instructions. Cf. Commonwealth v. Fuller, 421 Mass. 400, 411
(1995) (judge has discretion to define "mental disease or
defect"). As noted, the statute, G. L. c. 265, § 13J (a),
defines a substantial bodily injury as a "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." As "bodily injury" is a part of the definition
of substantial bodily injury in the statute, the judge here
"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 causes substantial bodily injury, shall be punished
. . . ."
(Emphasis supplied.)
16
acted properly in defining it. Her definition closely tracked
the definition recited in the statute, and the defendant does
not contest its accuracy. There was no error.14
c. Closing argument. The defendant claims that the
prosecutor's closing argument was improper in several respects.
While the Commonwealth concedes some errors in the prosecutor's
summation, it argues that any misstatements were minor, and
therefore do not warrant reversal. As the defendant did not
object at trial, we review the nine alleged errors individually
to determine whether they were error and, if so, whether they
created a substantial risk of a miscarriage of justice.
Commonwealth v. Jones, 471 Mass. 138, 148 (2015). "Remarks made
during closing arguments are considered in context of the whole
argument, the evidence admitted at trial, and the judge's
instructions to the jury." Commonwealth v. Andrade, 468 Mass.
543, 552 (2014), quoting Commonwealth v. Whitman, 453 Mass. 331,
343 (2009). We also note that the judge told the jury that the
opening statements and the closing arguments of counsel were not
evidence, both before the arguments and again during her final
instructions to the jury.
14 If anything, including the statutory definition of bodily
injury helped the defendant, by making it clear that the term
has a specific meaning and forestalling any juror speculation
about what might be sufficient to constitute bodily injury.
17
First, the defendant challenges the prosecutor's statement
that the defendant and James's mother met in May of 2010. The
Commonwealth concedes that this was a misstatement. The
defendant is correct that no witness testified that the
defendant and the mother first met in May of 2010. A friend of
the defendant testified that the mother and the defendant spent
time together in late 2009, and the defendant testified that he
"knew of" the mother at the end of 2009. James's family members
testified to meeting the defendant in May of 2010, or "late
spring, early summer" of 2010. To the extent that the
prosecutor's comment that the two met in May of 2010 constituted
a misstatement, it was not a significant one. The defendant
testified that he and the mother began to develop a friendship
in May of 2010. That testimony supported with equal force the
Commonwealth's argument that the relationship between the two
coincided with a deterioration of the mother's parenting of
James and with injuries and changes of behavior in James.
Second, the defendant challenges the prosecutor's statement
that it took twenty minutes for Quinn and the defendant to
"finally give up the child" after the arrival of James's cousin
and the State trooper at the arranged meeting place; the
cousin's testimony in fact was that it took two or three minutes
after their arrival before Quinn arrived with James. The
Commonwealth concedes that this also was a misstatement. As it
18
points out, however, the cousin's testimony was that there were
about twenty-five minutes of "back and forth" telephone calls
with Quinn before arrangements were finally made to give James
to her. Those arrangements included Quinn's demand that there
be no police present at the transfer. Because there was ample
evidence of the difficulty the cousin experienced in securing
James, any prejudice arising from that misstatement was also
minimal.
Third, the defendant claims that there was no basis for the
prosecutor to argue that, on January 29, 2011, the defendant
"knew" that police would be coming to his home. Here, given
James's extensive injuries at the time the defendant
relinquished him from his custody, as well as the contentious
circumstances of the transfer of custody, the jury reasonably
could infer that the defendant would expect police contact
shortly after James's injuries were discovered. A prosecutor
may "zealously argue in favor of those inferences favorable to
his or her case." Commonwealth v. Rakes, 478 Mass. 22, 45
(2017). "The inferences for which counsel argues need not be
necessary, or inescapable; they only need be reasonable and
possible." Id. We see no error in this portion of the
prosecutor's argument.
Also, given this context, and contrary to the defendant's
argument, the judge did not err in giving a careful
19
consciousness of guilt instruction based on testimony that the
defendant "did not answer the door in response to repeated
knocking by police." Commonwealth v. Bruneau, 472 Mass. 510,
519 (2015). The judge warned the jury, "You are not required to
draw such an inference and must use great care and caution
before you draw an inference of guilt from such evidence. . . .
[Y]ou should always remember that there may be numerous reasons
why an innocent person might do such things." It was the
province of the jury to evaluate the credibility of the
defendant's alternative explanation for his delay. See
Commonwealth v. Morris, 465 Mass. 733, 738-739 (2013).
Fourth, the defendant claims that the prosecutor
mischaracterized his testimony by stating that he had claimed
that, while he cleaned or attempted to medicate James's anal
area, James was "screaming and writhing in pain," and yet he did
not see James's injury. The defendant claims further that the
prosecutor improperly stated that he testified that he put
ointment on the injured area only once.
In fact, the defendant testified that he poured a mixture
of warm water and "Epson [sic] salt" onto James's buttocks, that
it "hurt [James] a lot," and that James "cr[ied]," "yelled," and
20
"screamed."15 He testified that, afterwards, he rinsed the area
with plain water and put cream on it. He said that he cleaned
James in that manner only one time, and otherwise only used
wipes to clean the area directly. He testified that, when he
was cleaning James in this way, he only saw James's scrotum area
and not any of the anal wound, which would require spreading the
cheeks of the buttocks to observe. Because the defendant's
testimony supported the prosecutor's statements, there was no
error.
Fifth, the defendant claims that the prosecutor made
several misrepresentations about the testimony of Dr. Elizabeth
Laposata, the defendant's medical expert. First, he argues that
the prosecutor falsely stated that Dr. Celeste Wilson16 and Dr.
Laposata both had opined that the wounds on the child were
inflicted. In context, it would have been evident to the jury
that this statement was a mere slip of the tongue, and that the
15The defendant claims in various portions of his brief
that the prosecutor committed misconduct by falsely alleging
that the defendant used salt on James's wound. He claims that
the "salt" at issue was Epsom salt as explained in the
defendant's testimony, and was therefore intended to help James.
James's testimony supported the prosecutor's statements, and
neither the prosecutor nor the jury were required to accept the
defendant's explanation. See Commonwealth v. Cruz, 88 Mass.
App. Ct. 206, 210 (2015).
16Dr. Wilson, the director of the child protection program
at Children's Hospital, was called as a witness by the
Commonwealth.
21
prosecutor had intended to refer to the two medical experts
called by the Commonwealth: Dr. Wilson and Dr. Fishman. This
error did not create a substantial risk of a miscarriage of
justice. See Commonwealth v. Thomas, 400 Mass. 676, 683 (1987)
(no reversal for prosecutor's "slip of the tongue" where judge
instructed jury that closing arguments are not evidence).
Sixth, the defendant argues that the prosecutor wrongly
stated that Dr. Laposata "could not give [the jury] an
explanation at all" for the mechanism of James's injury, that
she blamed the purported escalation of James's injury over time
on moisture, and that she opined that the injury was caused by
James sitting on a "doggie pee pad." In context, the
prosecutor's claim that Dr. Laposata could not give the jury an
explanation for the injury was in effect an argument that the
doctor could offer no credible explanation for the injury. That
statement "falls into the category of 'enthusiastic rhetoric,
strong advocacy, and excusable hyperbole,' and is not grounds
for reversal." Commonwealth v. Silva, 455 Mass. 503, 515
(2009), quoting Commonwealth v. Wilson, 427 Mass. 336, 350
(1998).
Dr. Laposata did testify that moisture could contribute to
the body's failure to heal an ulcer, and that an ulcer could be
worsened by exposure to urine. The prosecutor's reference to
that testimony therefore was proper. As to the statement about
22
a dog pad, the prosecutor's remark in context is not wholly
clear, but it appears that she intended to attribute this claim
not to Dr. Laposata specifically, but to the defense more
generally. The defendant elicited evidence of such pads being
around James's mother's home, and introduced James's statement,
admitted only for impeachment, that "he sat on a doggy's pee pee
pad and his bum hurt[]." This section of the prosecutor's
argument was inartful, but it was relatively brief. To the
extent that it constituted error, we see no prejudice.
Seventh, the defendant claims that the prosecutor
introduced her personal beliefs into her closing argument,
citing two statements. He first challenges the statement, "You
honestly don't believe, I don't, that that night . . . there was
no conversation between [Quinn] and the defendant. I submit to
you, of course there was." The Commonwealth concedes that the
remark "I don't" was "inappropriate."
"A prosecutor may not express [her] personal belief in the
testimony or suggest that [she] has knowledge independent of the
evidence at trial." Commonwealth v. Sanders, 451 Mass. 290,
296-297 (2008). Although we agree that the phrase "I don't" was
inappropriate, it was immediately followed by the proper
wording, "I submit to you." "The prosecutor was entitled to
argue, as [she] was doing, that the jury should not arrive at
particular interpretations of the evidence." Commonwealth v.
23
Hogan, 375 Mass. 406, 408 (1978). In any event, the challenged
remark was brief and unobtrusive, and it related to a tangential
matter in the case. We note that such "[m]ere[] unfortunate and
unartful isolated" remarks "are generally not enough to lead the
jury to improper inferences drawn from presumed personal
knowledge of the prosecutor." Commonwealth v. Raymond, 424
Mass. 382, 391-392 (1997), quoting Commonwealth v. Thomas, 401
Mass. 109, 115 (1987). "The absence of objection from defense
counsel further convinces us that taken in the context, the
remark would not likely have misled the jury or prejudiced [the
defendant]." Raymond, supra at 392.
Eighth, the defendant also challenges the prosecutor's
sarcastic statement, "That really is a valid argument," as
improper vouching. The statement at issue was made in the
context of the prosecutor's argument that mere familial disputes
did not fully explain James's mother's removal of family members
from James's day care access list. The challenged remark was,
in fact, a criticism of a defense argument rather than any
intimation of personal knowledge. Though often better avoided,
sarcasm is permitted in closing arguments. See Commonwealth v.
Brum, 438 Mass. 103, 119 (2002). There was no error.
Finally, the defendant challenges the prosecutor's
characterization of the defendant as "a drug user" and his
friends as "all drug users." The characterization was brief,
24
not inflammatory, and based on the evidence. The defendant
testified regarding his own drug use and that of his friends.
He referred to this testimony during his own closing argument.
The statement was proper.
d. Duplicative convictions. For the first time in his
reply brief, the defendant claims that his convictions of
assault and battery on a child with substantial bodily injury
and reckless endangerment of a child are duplicative.17 "We need
not pass on grounds for reversal raised for the first time in a
reply brief." Commonwealth v. McGowan, 400 Mass. 385, 390 n.4
(1987). Nonetheless, the defendant's argument is unavailing,
because the two crimes have separate elements.
A defendant "may properly be punished for two crimes
arising out of the same course of conduct." Commonwealth v.
Torres, 468 Mass. 286, 288-289 (2014), quoting Commonwealth v.
Valliere, 437 Mass. 366, 371 (2002). "A lesser included offense
is one which is necessarily accomplished on commission of the
greater crime." Commonwealth v. D'Amour, 428 Mass. 725, 748
(1999). "As long as each offense requires proof of an
additional element that the other does not, 'neither crime is a
lesser-included offense of the other, and convictions on both
17Although the defendant did not raise this issue in his
initial brief or below, the Commonwealth's brief addressed the
issue.
25
are deemed to have been authorized by the Legislature and hence
not [duplicative].'" Commonwealth v. Vick, 454 Mass. 418, 431
(2009), quoting Commonwealth v. Jones, 382 Mass. 387, 393
(1981). In this analysis, "[t]he actual criminal acts alleged
are wholly irrelevant to the application of [the rule]; rather,
the elements of the crimes charged are considered objectively,
abstracted from the facts. . . ." Commonwealth v. Jones, 441
Mass. 73, 76 (2004), quoting Commonwealth v. Jones, 59 Mass.
App. Ct. 157, 162 (2003).
We turn now to the statutes at issue in the case at bar.
General Laws c. 265, § 13J (b), second par., in relevant part,
provides, "Whoever commits an assault and battery upon a child
and by such assault and battery causes substantial bodily injury
shall be punished." General Laws c. 265, § 13L, in relevant
part, provides, "Whoever wantonly or recklessly engages in
conduct that creates a substantial risk of serious bodily injury
or sexual abuse to a child . . . shall be punished." For
purposes of § 13L, the statute specifies that wanton or reckless
behavior occurs only where a defendant "is aware of and
consciously disregards" the risk at issue. Id. 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." Id.
26
Comparing the elements of the two offenses reveals that
each offense requires an element that the other does not.
Section 13J (b), second par., requires both a touching and an
injury, where § 13L requires only conduct that creates
substantial risk of injury. Section 13L requires proof of a
"defendant's subjective state of mind with respect to the risk
involved. That is, he must be shown to have been actually aware
of the risk" of serious bodily injury. Commonwealth v.
Coggeshall, 473 Mass. 665, 670 (2016). Section 13J (b), second
par., a general intent crime, requires only that the defendant
intended to engage in the touching. See Commonwealth v. Cabral,
46 Mass. App. Ct. 917, 918 (1999). Because each crime requires
an element that the other does not, neither crime is a lesser
included offense of the other.
In support of his argument, the defendant relies
principally on Roderiques, 462 Mass. at 424, where the court
held that G. L. c. 265, § 13L, is a lesser included offense of
G. L. c. 265, § 13J (b), fourth par. In Roderiques, however,
the court compared the elements of § 13L with those of the
fourth paragraph of § 13J (b), which criminalizes "child abuse
resulting from acts of omission" -- wantonly or recklessly
permitting substantial bodily injury to a child, or wantonly or
recklessly permitting another to commit an assault and battery
on a child, causing substantial bodily injury. Roderiques,
27
supra at 423. Because the elements compared in that case were
different from those at issue here, the defendant's reliance is
inapposite.
Judgments affirmed.