Commonwealth v. Lizaida M. Reyes.

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-374

COMMONWEALTH

vs.

LIZAIDA M. REYES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial, a judge of the Lawrence

District Court found the defendant guilty of reckless

endangerment of a child in violation of G. L. c. 265, § 13L.1 On

appeal, the defendant maintains that (1) the Commonwealth

presented insufficient evidence to support the conviction, and

(2) her waiver of her right to a jury trial was not intelligent

and voluntary because the judge did not engage in a colloquy.

The Commonwealth concedes the second point, and having conducted

an independent examination of the issue, we agree. See

Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010). We vacate

1The defendant was found not guilty of operating under the
influence.
the judgment and set aside the finding of guilty due to the lack

of a colloquy but conclude that the evidence was sufficient to

support the conviction.

Background. We summarize the evidence in the light most

favorable to the Commonwealth, see Commonwealth v. Robinson, 482

Mass. 741, 744 (2019), S.C., 493 Mass. 718 (2024), reserving

certain details for later discussion. At approximately 4 A.M.

on May 24, 2021, officers of the Lawrence Police Department were

dispatched to the intersection of Broadway and Water Streets.

On arrival, the officers noticed a gray Honda Civic stopped

within its lane on Water Street with the engine running. The

officers turned on their cruiser lights and approached the

vehicle, where they saw the defendant "passed out" in the

driver's seat with her head lolled to the side and her foot on

the brake. There were two toddlers in the backseat who were

secured properly in car seats.

The officers attempted to wake the defendant by knocking

"loud[ly]" on her windows and "screaming" at her. Despite this

noise, and despite the flashing police lights, the defendant did

not rouse for several minutes. When the defendant began to

awake, she took her foot off the brake, causing her car to roll

five to ten feet toward the busy intersection. The officers

continued knocking and the defendant put her foot back on the

brake. Through the partly open window, an officer reached into

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the car and unlocked the door, and the other officer put the

transmission into park. The defendant was asked to get out of

the vehicle; when she did, officers noticed that she was

"extremely disheveled," smelled faintly of alcohol, and had her

sandals on "backwards" or "on the wrong feet." When asked twice

why she was asleep at the wheel, the defendant answered that

"she wasn't sleeping at all." The defendant was transported to

the hospital at her request.

Discussion. 1. Jury waiver. The defendant maintains that

her conviction must be vacated because the judge did not engage

in a colloquy before the defendant waived her right to a jury

trial. The Commonwealth concedes that the conviction cannot

stand because without a colloquy the waiver was not intelligent

or voluntary. See Ciummei v. Commonwealth, 378 Mass. 504, 507

(1979) ("a conviction cannot stand which follows upon a jury

waiver that is not freely and knowingly given"). We agree.

2. Sufficiency of the evidence. We address the

defendant's sufficiency claim because "[i]f the evidence at

trial was legally insufficient to sustain a verdict, a new trial

would violate the prohibition against double jeopardy and would

therefore be impermissible." Commonwealth v. Bacigalupo, 455

Mass. 485, 489 (2009). In reviewing such a claim, we consider

"the evidence presented at trial, together with reasonable

inferences therefrom, in the light most favorable to the

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Commonwealth to determine whether any rational [fact finder]

could have found each element of the offense beyond a reasonable

doubt." Robinson, 482 Mass. at 744. The inferences that

support a conviction "need only be reasonable and possible, not

necessary or inescapable" (quotation omitted). Id., quoting

Commonwealth v. Martin, 467 Mass. 291, 312 (2014).

The elements of reckless endangerment of a child under

G. L. c. 265, § 13L, are: "(1) a child under age eighteen, (2)

a substantial risk of serious bodily injury . . ., and (3) the

defendant wantonly or recklessly (i) engaged in conduct that

created the substantial risk, or (ii) failed to take reasonable

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

Commonwealth v. Hardy, 482 Mass. 416, 421 (2019), quoting

Commonwealth v. Coggeshall, 473 Mass. 665, 667-668 (2016). The

risk of injury must be "a good deal more than a possibility, and

its disregard substantially more than negligence." Commonwealth

v. Santos, 94 Mass. App. Ct. 558, 560-561 (2018), quoting

Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008). The

Commonwealth is required to prove that the defendant was

"aware of and consciously disregarded a substantial and
unjustifiable risk that [her] acts would result in serious
bodily injury to [the children], and that [her] disregard
of that risk was a gross deviation from the standard of
conduct that a reasonable person would observe in the
situation."

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Hendricks, supra at 104. Further, the Commonwealth must prove

the defendant's "subjective state of mind with respect to the

risk involved. That is, [she] must be shown to have been

actually aware of the risk." Coggeshall, supra at 670.

Here, there is no dispute that the children were toddlers;

the defendant challenges the sufficiency of the Commonwealth's

evidence on the second and third elements of reckless

endangerment. Specifically, she contends that the evidence was

insufficient to prove that she was more than negligent (even

grossly negligent) in getting behind the wheel with her toddlers

properly restrained in the back seat. We disagree. Although

the evidence at trial was not overwhelming, when viewed in the

light most favorable to the Commonwealth, it was sufficient to

support the guilty finding.

The defendant's subjective knowledge that she was too

drowsy to drive safely could reasonably be inferred from

evidence that she had taken Advil or Tylenol before getting

behind the wheel, medications that, she told medical staff,

"make[] her drowsy" and which she identified as the "reason for

[her] being drowsy and falling asleep behind the wheel." Given

the defendant's acknowledgment that this was her typical

reaction to Advil and Tylenol, it was reasonable for the judge

to infer that the defendant knew that taking this medication

before driving put her at risk of falling asleep behind the

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wheel. Further, officers testified at trial that the defendant

smelled "faint[ly]" of alcohol when they approached her, and her

medical records reflected that she "was slightly slurring her

words, [her] eyes were slightly bloodshot and [medical staff]

continued to smell alcohol on her breath." It was thus

reasonable for the judge to infer that, before driving, the

defendant also consumed alcohol, a known depressant.2 The judge

could also consider evidence that the defendant was driving home

from a friend's house at four o'clock in the morning, a time

when people are typically asleep. See Commonwealth v. Gerhardt,

477 Mass. 775, 787 (2017) (fact finder "may use their common

sense in evaluating whether the Commonwealth introduced

sufficient evidence to satisfy its burden of proof").

Additionally, the severity of the defendant's drowsiness,

including that she was so incapacitated behind the wheel that

she did not wake up to for several minutes while officers were

knocking on her window and yelling, that she got out of the car

with her sandals on "backwards" or "on the wrong feet," and that

2 Although the defendant denied drinking alcohol, her
medical records stated that she was "clinically sober," and she
was found not guilty of operating under the influence, the judge
was not prohibited from considering circumstantial evidence that
the defendant consumed alcohol. See Commonwealth v. Ross, 92
Mass. App. Ct. 377, 380 (2017) ("The fact that the jury
ultimately did not convict the defendant of OUI does not
preclude their consideration of the evidence of intoxication in
considering the negligent operation charge").

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she fell asleep at the wheel while the car was still at least

twenty feet away from the intersection, supports an inference

that the defendant was subjectively aware of the severity of her

drowsiness. Based on the evidence and reasonable inferences

therefrom, it was permissible for the judge to infer that the

defendant consciously disregarded a substantial and

unjustifiable risk by getting behind the wheel with her two

toddlers in the car. Where "the danger of driving while heavy

with drowsiness" is "extreme" and "self-evident," Carvalho v.

Oliveria, 305 Mass. 304, 305 (1940), the judge was permitted to

find that the defendant's conscious disregard of this risk

amounted to something substantially more than negligence. See

Santos, 94 Mass. App. Ct. at 560-561.

Judgment vacated.

Finding set aside.

By the Court (Green, C.J.3,
Desmond & Hershfang, JJ.4),

Clerk

Entered: September 3, 2024.

3 Chief Justice Green participated in the deliberation on
this case prior to his retirement.

4 The panelists are listed in order of seniority.

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