Commonwealth v. Robinson

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21-P-23 Appeals Court

COMMONWEALTH vs. JAHEEL ROBINSON.

No. 21-P-23.

Norfolk. July 11, 2023. - September 15, 2023.

Present: Green, C.J., Ditkoff, & Hodgens, JJ.

Assault and Battery. Evidence, Expert opinion, Intent.
Witness, Expert. Intent. Practice, Criminal, Motion for a
required finding. Words, "Bodily injury."

Indictments found and returned in the Superior Court
Department on February 14, 2013.

The cases were heard by Thomas A. Connors, J.

Jennifer Petersen for the defendant.
Laura A. McLaughlin, Assistant District Attorney (Lisa
Beatty, Assistant District Attorney, also present) for the
Commonwealth.

DITKOFF, J. The defendant, Jaheel Robinson, appeals from

his convictions after a Superior Court jury-waived trial of

assault and battery on a child causing substantial bodily

injury, G. L. c. 265, § 13J (b), and assault and battery on a

child causing bodily injury, G. L. c. 265, § 13J (b). The child
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first suffered extensive bruising to his ear. Approximately two

weeks later, the child suffered a serious brain injury. Based

on the particular manner in which the Legislature has defined

"bodily injury" in G. L. c. 265, § 13J (a), we conclude there

was insufficient evidence that the ear injury constituted a

bodily injury under the statute in the absence of evidence that

the ear bruising substantially impaired the child's wellbeing.

Accordingly, we vacate the conviction of assault and battery on

a child causing bodily injury, and remand for entry of a

conviction on the lesser included offense of assault and

battery, G. L. c. 265, § 13A. Further concluding that there was

sufficient evidence that the defendant intentionally inflicted

the more serious injuries to the child, we affirm the conviction

of assault and battery on a child causing substantial bodily

injury.

1. Background. a. Injuries. On June 17, 2012, the

victim, a male child, was born without any complications or

medical issues. In early September 2012, the child's mother

returned to work and resumed night classes two evenings per

week, and the defendant, the child's father, became the primary

caregiver. Shortly thereafter, the relationship between the

parents began to deteriorate.

In mid-September 2012, the mother told the defendant that

she wanted to move out and that their relationship "[was]n't
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going to work." Later that same month, while the mother was at

work, the defendant sent her a text message with a photograph

depicting several scratch marks on the child's back. The mother

immediately called the defendant to discuss how the child

sustained the scratch marks, and the defendant claimed that the

child suffered the scratches while the defendant was bathing

him. On another occasion, the defendant sent the mother a text

message with a video recording depicting his moving the child's

legs "in some odd motion." The mother called the defendant and

told him "not to do it again."

On October 9, 2012, the defendant and the mother engaged in

an argument through text messages concerning the child. The

defendant sent a text message to the mother that the child

preferred to be around her and, "it's heartbreaking . . . .

[The child] looks like he's never seen me before . . . . Yeah,

he hates me." The next morning, the mother was at work when she

received a text message from the defendant that said, "fuck!!!"

The defendant explained that he was taking a picture of the

child when his cell phone fell and bruised the child's ear "a

little bit." The defendant told the mother that the child's ear

"looks bad" and that, when she saw it in person, she would "see

[his] concern." The defendant sent a text message to the mother

with a photograph, which depicted considerable bruising to the

inner and outer portions of the child's left ear. Several days
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later, the mother punched the defendant during an argument over

his care of the child.

On the evening of October 23, 2012, the defendant was

holding the child in the kitchen while the mother went upstairs

to the bedroom. Approximately ten minutes later, the mother

came back downstairs where she discovered the defendant holding

the child at the bottom of the basement stairs. Although the

mother found this unusual, the defendant stated that they would

"be up in a minute." After a few minutes had passed, the mother

returned to check on them. This time, however, she encountered

the defendant holding the child and pacing at the bottom of the

basement stairs. The mother immediately noticed "a look of fear

in [the defendant's] face" and asked him what had happened. The

defendant quickly blurted out that he fell.

As the defendant ascended the basement stairs, the mother

noticed that the child appeared injured. The child's eyes were

glazed over and partially closed, he was struggling to breathe,

and he was not moving. The mother immediately called 911. When

the police arrived, the defendant stated that he "fell down the

stairs and dropped the baby." Shortly thereafter, the child was

transported to the hospital.

The child sustained numerous injuries as a result of the

incident, including multiple acute, noncontact subdural

hemorrhages, significant brain swelling, loss of brain tissue,
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torn bridging veins, retinal hemorrhages in all four quadrants,

and retinoschisis. At the time of trial, the child's retinas

had detached resulting in permanent blindness. He also had

limited verbal communication skills and mobility issues.

b. Trial evidence. At trial, both parties presented

experts regarding how the child's injuries occurred.1 The

Commonwealth presented expert medical testimony that the child's

brain injuries were consistent with acceleration and

deceleration forces. One expert opined that the eye injuries

were caused by a "to-and-fro motion" and that the brain injuries

were "indicative of a severe traumatic event . . . beyond what

you would expect from the regular handling and care of a baby."

She testified that "[r]etinoschisis is associated with more

traumatic, more high-energy mechanisms" and that it was

"described in a child that fell off of an 11-story building."

Another expert testified that the child sustained the equivalent

of "severe crush injuries" typically associated with "a

television set falling on a child's eye" or "abusive head

trauma." He had seen such injuries "only . . . in cases of

1 The Commonwealth presented expert testimony from three
doctors from Boston Children's Hospital -- the medical director
of the hospital's child protection program, a pediatric
ophthalmologist, and a pediatric neuroradiologist -- as well as
testimony from the chair of biomechanics in the department of
bioengineering at the University of Louisville. The defendant
presented expert testimony from a forensic pathologist and a
biomedical engineer.
6

abusive head trauma" and opined that the injuries were

inconsistent with a short fall. A third expert testified that

the "acute hemorrhage is consistent with trauma" and that the

injuries were inconsistent with a short fall. The

Commonwealth's bioengineer determined that the described fall

was "not biomechanically compatible with the constellation of

injuries, and the characteristics of injuries that were present

on the child."

As to the child's ear injury, an expert for the

Commonwealth testified that the child sustained "very extensive

bruising" to his entire ear. Similarly, the child's doctors,

who observed the bruise on the day of the injury, testified that

they were concerned because the bruise "was a deep purple" and

it looked "as if [the ear] had gotten banged." One of the

Commonwealth's experts testified that ear bruising in children

is "exquisitely unusual" because it is "one of the places where

children just do not characteristically bruise." Given the

location of the bruise, it was "highly concerning for an abusive

mechanism." The Commonwealth's bioengineer determined that

dropping a cell phone on a child's ear was "completely

incompatible" with the severity of the bruising, and another

expert testified that she "wouldn't expect that a modern-day

cell phone would cause that injury."
7

By contrast, the defendant's experts opined that the

child's brain and ear injuries were consistent with the

defendant's account of events. Concerning the child's brain

injury, the defendant's experts testified that the child fell

approximately "seven and a-half feet down about four stairs" and

that the fall, as described, "could have resulted in [the

child's] head injuries." With respect to the child's ear

injury, the defendant's experts testified that dropping a cell

phone on a child could bruise his ear and that the defendant's

explanation was consistent with the ear bruise sustained by the

child.

After an eleven-day bench trial, the judge found the

defendant guilty of assault and battery on a child causing

substantial bodily injury (brain injury) and assault and battery

on a child causing bodily injury (ear injury).2 This appeal

followed.

2. Standard of review. "When reviewing the denial of a

motion for a required finding of not guilty, 'we consider the

evidence introduced at trial in the light most favorable to the

Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

2 The defendant was also tried on an additional charge of
assault and battery on a child causing bodily injury (leg
fracture), and the judge found him not guilty.
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reasonable doubt.'" Commonwealth v. Oliver, 102 Mass. App. Ct.

609, 611 (2023), quoting Commonwealth v. Quinones, 95 Mass. App.

Ct. 156, 162 (2019). "[T]he evidence relied on to establish a

defendant's guilt may be entirely circumstantial," Commonwealth

v. Linton, 456 Mass. 534, 544 (2010), S.C., 483 Mass. 227

(2019), and "[t]he inferences that support a conviction 'need

only be reasonable and possible; [they] need not be necessary or

inescapable.'" Commonwealth v. Wheeler, 102 Mass. App. Ct. 411,

413 (2023), quoting Commonwealth v. Ross, 92 Mass. App. Ct. 377,

378 (2017). "Because the defendant moved for required findings

at the close of the Commonwealth's case and again at the close

of all the evidence, '[w]e consider the state of the evidence at

the close of the Commonwealth's case to determine whether the

defendant's motion should have been granted at that time.'"

Commonwealth v. West, 487 Mass. 794, 799 (2021), quoting

Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006). We then

"consider the state of the evidence at the close of all the

evidence, to determine whether the Commonwealth's position as to

proof deteriorated after it closed its case." Ross, supra at

379, quoting O'Laughlin, supra.

3. Evidence of the defendant's intent. Here, the

Commonwealth presented ample evidence for a reasonable trier of

fact to find that the child's injuries were intentionally

inflicted by the defendant, rather than the result of an
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accident. See Commonwealth v. Garcia, 94 Mass. App. Ct. 91, 97

(2018) (sufficient evidence of intent where medical expert

testified that "blunt force trauma caused the [victim's]

wound"). At trial, the Commonwealth's experts testified that

the child's brain injuries were "indicative of a severe

traumatic event." See Commonwealth v. Strickland, 87 Mass. App.

Ct. 46, 48-49 (2015) (expert testified that victim's severe

brain injuries were "of the type 'ordinarily . . . associated

with high velocity motor vehicle accidents'" and that "a simple

fall down the stairs would not have the force necessary to cause

these injuries in a child"). In addition, the Commonwealth's

experts testified that ear bruising in children is "exquisitely

unusual" and "highly concerning for an abusive mechanism." See

id. at 49 (expert testified that "red bruises on the child's

body were consistent with blunt force trauma"). The

Commonwealth's experts opined that the child's brain injuries

were inconsistent with the described fall and that the severity

of the bruise was "completely incompatible" with dropping a cell

phone on a child's ear. See Commonwealth v. Epps, 474 Mass.

743, 744 (2016) ("Commonwealth's medical expert offered the

opinion that injuries of the type and severity suffered by the

child could not have been caused by the short falls described by

the defendant"). Moreover, the experts testified that the

injuries were "indicative of a severe traumatic event" akin to
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an eleven-story fall, being hit with a television set, or a

severe crush, a description utterly inconsistent with being

dropped down the stairs.

To be sure, the defendant presented conflicting expert

testimony. The contrary expert testimony, however, "did not

cause the Commonwealth's case to deteriorate, as the [trier of

fact was] entitled to discredit that testimony." Garcia, 94

Mass. App. Ct. at 97. Accord Commonwealth v. Traylor, 472 Mass.

260, 276 (2015). A trier of fact is "entitled to reject the

testimony and opinions of the defendant's witnesses and instead

credit the contrary evidence, including the opinion of the

Commonwealth's expert." Commonwealth v. Chappell, 473 Mass.

191, 208 (2015). Accordingly, the evidence was sufficient for a

reasonable judge to conclude that the defendant intended to

inflict the child's injuries. See Commonwealth v. Millien, 474

Mass. 417, 442 (2016).

4. Ear bruise as a bodily injury. Under G. L. c. 265,

§ 13J (a), the term "bodily injury" is defined as a "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." Accord Commonwealth v. LaBrie, 473 Mass. 754, 766
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(2016). "A 'substantial impairment of the physical condition'

therefore occurs where an injury considerably or significantly

compromises the usual functioning of any part of the victim's

body." Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 489-490

(2018).3

Here, there was insufficient evidence that the child's

bruised ear constituted a bodily injury under the statute.

Contrast Commonwealth v. Chapman, 433 Mass. 481, 484 (2001)

(asphyxiation constituted "bodily injury within the meaning of

§ 13J [a]"); Ryan, 93 Mass. App. Ct. at 491 (sufficient evidence

of bodily injury under nearly identical definition where "[t]he

victim's hip injury was severe enough to cause him pain and

hamper his mobility for several weeks"). Although the child's

ear sustained "very extensive bruising," there was no evidence

to suggest that the severity and location of the bruise

substantially impaired the child's wellbeing. See Commonwealth

v. Sudler, 94 Mass. App. Ct. 150, 155 (2018) (insufficient

evidence where there was no testimony "that use of the victim's

fingers was hampered for any period of time" and "no evidence of

treatment, continued medical care, or any recovery period" was

3 Ryan involved G. L. c. 265, § 13K (b). The definition of
"bodily injury" in § 13K (a) is nearly identical to the
definition in § 13J (a), except that it omits "any physical
condition which substantially imperils a child's health or
welfare" and uses "including, but not limited to."
12

introduced).4 Despite the extensive medical testimony at trial,

no doctor testified regarding the likely effects of the bruise

on the child's bodily functioning or any manner in which the

bruise imperiled the child's health or welfare. The photograph

and description of the bruise did not reveal so serious an

injury that such an effect would be evident to a lay person.

Similarly, although the Commonwealth presented evidence that the

child's ear "was a deep purple" and appeared to have been

"banged," there was no evidence to suggest that the bruise was a

result of a repeated harm to the child's ear. To the contrary,

there was no evidence of an ear injury at any other time.

Accordingly, under the particular definition of "bodily injury"

in G. L. c. 265, § 13J (a), "[w]e cannot infer substantial

impairment from such limited evidence without speculating."

Sudler, supra.5

4 Sudler involved G. L. c. 265, § 39 (b), which uses a
definition of "bodily injury" identical to that in § 13K (a).

5 The Commonwealth's citations to cases under the aggravated
rape statute, G. L. c. 265, § 22 (a), are not particularly
helpful. That statute, in which "serious bodily injury" was
added in 1980, St. 1980, c. 459, § 6, contains no definition of
"bodily injury," and predates the passage of § 13J by thirteen
years. See St. 1993, c. 340, § 2. Without a statutory
definition, it has been construed broadly. See, e.g.,
Commonwealth v. J.G., 100 Mass. App. Ct. 731, 737 (2022),
quoting Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 235
(1991) ("'swollen eye, swollen face, and facial bruises'
constituted serious bodily injury" under aggravated rape
statute).
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5. Conclusion. The judgment on the indictment charging

the defendant with assault and battery on a child causing bodily

injury is vacated, and the finding is set aside. A new judgment

of conviction shall enter on so much of the indictment as

alleges the lesser included offense of assault and battery,

G. L. c. 265, § 13A (a). The matter is remanded for

resentencing. The judgment on the indictment charging the

defendant with assault and battery on a child causing

substantial bodily injury is affirmed.

So ordered.