COMMONWEALTH v. TARRAY GIBBS (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1128
23-P-1129

COMMONWEALTH

vs.

TARRAY GIBBS
(and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendants,

Tarray Gibbs and Noelle Mayes, were found guilty of multiple

counts of reckless endangerment of a child in violation of G. L.

c. 265, § 13L. Mayes was also convicted of intimidating a

witness in violation of G. L. c. 268, § 13B. On appeal, the

defendants argue that their motions to dismiss for lack of

probable cause and their motions for required findings of not

guilty were improperly denied, that video surveillance evidence

was erroneously admitted, and that the prosecutor made improper

statements in closing argument. Mayes also argues that her

1 Commonwealth vs. Noelle Mayes.
motion to suppress evidence should have been allowed. We

affirm.

Discussion. 1. Motion to suppress. Defendant Mayes

challenges the denial of her motion to suppress evidence of her

identity. She argues that State Police Trooper Matthew Stone's

reaching into the car to retrieve her driver's license from the

dashboard was a warrantless search performed in violation of the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights. Mayes argues that

Stone "had no probable cause [to believe] that a crime was being

committed [in the car] nor was there any weapons or contraband

in [sight]." In denying her motion, the motion judge determined

that Stone's repeated requests for Mayes's license "were within

the scope of the community caretaking function, and when she

failed to produce it, [his] briefly reaching into the car and

retrieving the driver's license from the dashboard was minimally

intrusive and did not result in an unlawful seizure." We agree.

The Fourth Amendment and art. 14 "protect individuals from

unreasonable, governmental searches and seizures." Commonwealth

v. Delgado-Rivera, 487 Mass. 551, 554 (2021). A warrantless

search is per se unreasonable unless it "falls within a narrow

class of permissible exceptions to the warrant requirement"

(quotations and citation omitted). Commonwealth v. Perkins, 465

Mass. 600, 603 (2013). The community caretaking doctrine

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provides one such exception when a "circumstance exists apart

from the investigation of criminal activity that supports police

intervention to protect an individual or the public."

Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 51 (2014).

Stone's actions fell squarely within this exception.

Stone arrived on scene to find four unattended children

sitting inside an automobile, parked in a high crime area, in

approximately ninety-degree weather. Coupled with the fact that

two of children were seated in the driver's seat and the engine

was running, the circumstances called for police intervention to

protect the children. See Commonwealth v. Sargsyan, 99 Mass.

App. Ct. 114, 116 (2021). For the same reason, when the

defendants arrived, Stone was justified in asking Mayes for her

driver's license to confirm her identity and ensure the children

were safely released into their parents' custody.2 "Such a

request is a minimal intrusion on the defendant's rights and

does not involve an improper seizure." Commonwealth v. Mateo-

German, 453 Mass. 838, 843 (2009).

Upon Mayes's repeated refusal to provide identification,

Stone's decision to reach into the vehicle and retrieve her

driver's license from the dashboard was permissible. In

carrying out community caretaking functions, "officer[s] may

2 Gibbs complied with Stone's request for identification,
but he was not licensed to operate a motor vehicle.

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take steps that are reasonable and consistent with the purpose

of [their] inquiry, even if those steps include actions that

might otherwise be constitutionally intrusive" (citation

omitted). Commonwealth v. Knowles, 451 Mass. 91, 95 (2008). As

Mayes states in her brief, Stone did not search "in

compartments, the trunk, coolers, or under the seat." Thus,

Stone's actions never ventured beyond the limitations imposed by

the community caretaking doctrine. See New York v. Class, 475

U.S. 106, 118 (1986) ("The search was focused in its objective

and no more intrusive than necessary to fulfill that

objective"). Mayes's motion to suppress was properly denied.

2. Sufficiency of the evidence. Both defendants claim

that the evidence was insufficient to sustain their convictions,

and that their required motions for not guilty should have been

allowed. When considering a motion for a required finding of

not guilty, a judge must determine "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." Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979). "Proof of the essential

elements of the crime may be based on reasonable inferences

drawn from the evidence . . . , and the inferences a jury may

draw 'need only be reasonable and possible and need not be

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necessary or inescapable.'" Commonwealth v. West, 487 Mass.

794, 800 (2021), quoting Commonwealth v. Casale, 381 Mass. 167,

173 (1980).

"To prove reckless endangerment of a child, the

Commonwealth must demonstrate that the defendant wantonly or

recklessly engaged in conduct that created a substantial risk of

serious bodily injury or sexual abuse to a child under age

eighteen,"3 or that the defendant "failed to take reasonable

steps to alleviate that risk where a duty to act existed."

Commonwealth v. Rezac, 494 Mass. 368, 376 (2024). The evidence

must show that the defendant was aware of, and consciously

disregarded, a substantial and unjustifiable risk. See

Commonwealth v. Hendricks, 452 Mass. 97, 103-104 (2008);

Commonwealth v. Costa, 97 Mass. App. Ct. 447, 449-450 (2020).

In cases involving inadequate supervision of a child, "the

inquiry is necessarily fact-specific, requiring consideration of

the totality of the circumstances." Commonwealth v. Santos, 94

Mass. App. Ct. 558, 561 (2018). Relevant circumstances include

the following:

"the gravity and character of the possible risks of harm;
the degree of accessibility of the [defendant]; the length
of time of the abandonment; the age and maturity of the
children; the protective measures, if any, taken by the
[defendant]; and any other circumstance that would inform

3 The four children were thirteen years old, six years old,
two years old, and eight months old at the time of the incident.

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the factfinder on the question whether the defendant's
conduct was [wanton or reckless]."

Id., quoting Barnes v. Commonwealth, 47 Va. App. 105, 113

(2005).

The defendants left the children unsupervised in a car in a

casino parking garage -- with a thirteen year old child in the

driver's seat and the engine running. The parking garage was

well known by law enforcement for incidents of disorderly

conduct, narcotics sales, assault, prostitution, possession of

firearms, and shootings. When Stone, the first responding

officer, arrived, the temperature in the garage was at least

ninety degrees. A half-empty water bottle was the children's

only apparent source of hydration, the eight month old infant

appeared sweaty, and necessary items for the care of an infant

were absent. The children were left unattended in this

environment on three separate occasions over the span of almost

five hours, twice for more than one hour. Under the totality of

the circumstances, a rational jury could conclude, beyond a

reasonable doubt, that the defendants intentionally left the

children alone in circumstances creating a substantial and

unjustifiable risk to the children's safety. See Santos, 94

Mass. App. Ct. at 561. Contrast Costa, 97 Mass. App. Ct. at 451

(no probable cause for reckless endangerment where defendant was

in close proximity to car and there was no evidence that motor

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was running); Hannon v. Commonwealth, 68 Va. App. 87, 95 (2017)

(no reckless endangerment where children were left unattended in

parking lot with no evidence of "dangerous" temperature or "that

the parking lot was in a high crime area").

In addition, the jury could infer the defendants'

consciousness of guilt from the fact that they lied to police

about how long the children were left unattended. See

Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014) ("Evidence of

. . . false statements to police . . . generally is admissible

as some evidence of consciousness of guilt"). The jury could

likewise infer consciousness of guilt from Mayes's threat to

accuse Stone of touching her son's genitalia if charges were

brought. See Commonwealth v. Miles, 420 Mass. 67, 75 (1995)

("Evidence regarding threats of intimidation of key witnesses

for the prosecution is admissible to demonstrate consciousness

of guilt").

The defendants' principal argument regarding the

sufficiency of the evidence is that the jury mistakenly credited

inconsistent and contradictory testimony of the police officers

who were involved with the case. Assuming for the sake of

argument that the testimony was inconsistent and contradictory,

the defendants' claims are unavailing because it is the province

of a jury to "believe all, some, or none of the testimony of a

witness." Commonwealth v. Gonzalez, 67 Mass. App. Ct. 877, 877

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(2006). In assessing the sufficiency of the evidence, we

consider what the jurors could rationally believe, taking the

evidence in the light most favorable to the Commonwealth. See

Latimore, 378 Mass. at 677. "To hold otherwise would allow a

trial judge to invade the province of the jury as the sole

finder of fact." Commonwealth v. Walker, 68 Mass. App. Ct. 194,

198 (2007).

3. Motions to dismiss. The applications for criminal

complaints included essentially the same facts that were

presented at trial, which were sufficient to prove the

defendants' guilt beyond a reasonable doubt. Because probable

cause requires "more than mere suspicion," but considerably less

than proof beyond a reasonable doubt, Commonwealth v. Cartright,

478 Mass. 273, 283 (2017), quoting Commonwealth v. Jewett, 471

Mass. 624, 629 (2015), we also reject the defendants' claim that

their motions to dismiss the complaint should have been allowed.

4. Surveillance footage. The defendants challenge the

admission in evidence of the casino parking lot surveillance

video footage. They claim the video recording contained only

footage favorable to the Commonwealth and therefore violated the

doctrine of completeness. Because the defendants did not raise

this objection at trial, our review is limited to whether there

was error creating a substantial risk of a miscarriage of

justice. See Commonwealth v. Rivera, 425 Mass. 633, 636-637

8
(1997); Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 804

(2024).4

"When a party introduces a portion of a statement or

writing in evidence the doctrine of verbal completeness allows

admission of other relevant portions of the same statement or

writing which serve to clarify the context of the admitted

portion" (quotation and citation omitted). Commonwealth v.

Carmona, 428 Mass. 268, 272 (1998). "The rule prevents a party

from presenting a fragmented and misleading version of events to

the finder of fact." Id. Assuming without deciding that the

doctrine of completeness applies in these circumstances, the

defendants would have been permitted to introduce footage that

the Commonwealth had not introduced.5 However, nothing in the

record suggests that the defendants were prevented from

introducing other parts of the surveillance footage to clarify

what they considered to be misleading. Their briefs do not

4 Because the defendants' motion in limine to exclude the
surveillance video footage was based on relevance and the
alleged withholding of exculpatory evidence, it did not preserve
the claim pressed on appeal. See Commonwealth v. Belnavis, 104
Mass. App. Ct. 798, 801 (2024).

5 The doctrine of completeness would allow the defendants to
offer "otherwise inadmissible hearsay" to prevent the
Commonwealth from presenting a misleading, fragmentary
presentation of a conversation or document. Commonwealth v.
Steeves, 490 Mass. 270, 282 (2022). It does not appear that any
footage the defendants wished to offer would have been
inadmissible hearsay.

9
explain which segments of the footage were omitted or how the

omitted segments would have been exculpatory. We discern no

error or risk of a miscarriage of justice.6

5. Closing argument. Finally, both defendants argue that

the prosecutor impermissibly stated her opinion on the

credibility of their son's testimony. A prosecutor may comment

on "a witness's demeanor, motive for testifying, and

believability, provided that such remarks are based on the

evidence, or fair inferences drawn from it, and are not based on

the prosecutor's personal beliefs." Commonwealth v. Freeman,

430 Mass. 111, 118-119 (1999). Improper vouching occurs when

"an attorney expresses a personal belief in the credibility of a

witness, or indicates that he or she has knowledge independent

of the evidence before the jury." Commonwealth v. Wilson, 427

Mass. 336, 352 (1998).

The prosecutor's statements regarding the son's credibility

were within the proper bounds of argument. In her closing, she

6 The defendants' briefs claim in passing, unsupported by
any evidence or record citation, that they "did not have access
to the video in its entirety which would have exonerated them."
The record before us does not support the defendants' apparent
claim that the prosecution withheld exculpatory portions of the
surveillance video footage. Rather, it appears from the trial
transcript that the four hours of casino surveillance footage
was admitted in its entirety, even though the Commonwealth
played only excerpts for the jury at trial. If the defendants
contend that the Commonwealth withheld footage that was material
and exculpatory, they may attempt to offer proof of this claim
in a motion for a new trial.

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told the jury that the defendants had "brought their son . . .

to lie to you." In support of this statement, she highlighted

the video surveillance evidence that contradicted the son's

testimony and his demeanor at trial when asked if he knew that

his interaction with Stone had been videorecorded. She did not

express her personal beliefs about the son's credibility or

indicate that she had knowledge outside of the evidence at trial

that would call his credibility into question.

Judgments affirmed.

By the Court (Massing,
Henry & Grant, JJ.7),

Clerk

Entered: January 21, 2025.

7 The panelists are listed in order of seniority.

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