Commonwealth v. Traylor

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11-P-1238 Appeals Court

COMMONWEALTH vs. MATTHEW TRAYLOR.

No. 11-P-1238.

Suffolk. October 2, 2012. - July 30, 2014.

Present: Berry, Green, & Meade, JJ.

Child Abuse. Assault and Battery. Reckless endangerment of a
child. Constitutional Law, Double jeopardy. Practice,
Criminal, Double jeopardy. Statute, Construction.

Indictments found and returned in the Superior Court
Department on September 12, 2008.

The cases were tried before Elizabeth M. Fahey, J.

A motion to stay execution of sentence was heard in this
court by Fecteau, J.

David Hirsch for the defendant.
Kevin J. Curtin, Assistant District Attorney (Elizabeth A.
Dunigan, Assistant District Attorney, with him) for the
Commonwealth.

BERRY, J. The defendant was charged under G. L. c. 265,

§ 13J(b), on two indictments for assault and battery upon a

child by having care and custody of said child and committing an
2

assault and battery, or wantonly or recklessly permitting or

allowing another to commit an assault and battery resulting in

substantial bodily injury to the child, 1 and on five indictments

for assault and battery upon a child by having care and custody

of said child and committing an assault and battery, or wantonly

or recklessly permitting or allowing another to commit an

assault and battery resulting in bodily injury to the child. 2,3

1
On these two indictments, the defendant was convicted on
special verdicts under G. L. c. 265, § 13J(b), fourth par.,
which states as follows:

"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
by imprisonment in the state prison for not more than five
years, or by imprisonment in a jail or house of correction
for not more than two and one-half years."

As noted, the two indictments also charged under G. L.
c. 265, § 13J(b), second par.; the defendant was not convicted
of commission under this paragraph, which provides:

"Whoever commits an assault and battery upon a child and by
such assault and battery causes substantial bodily injury
shall be punished . . . ."
2
On these five indictments, the defendant was convicted by
the jury, on special verdicts, under G. L. c. 265, § 13J(b),
third par., which states as follows:

"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 by imprisonment for not
more than two and one-half years in the house of
correction."
3

At the time the child (the defendant's four month old son),

whom we shall call Rory, 4 sustained his injuries, he was living

with his eighteen month old sister, his mother, his aunt, and

his maternal grandfather. The child's oldest injuries coincided

As noted, on these five indictments, the defendant was also
charged under G. L. c. 265, § 13J(b), first par.; he was not
convicted of commission under this paragraph, which provides:

"Whoever commits an assault and battery upon a child and by
such assault and battery causes bodily injury shall be
punished . . . ."
3
Precise definitions in G. L. c. 265, § 13J(a),
differentiate between infliction of "bodily injury" versus
"substantial bodily injury":

"(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."
4
A pseudonym.
4

closely with the first day of his mother's return to work full

time, after which time the defendant was the child's primary

caretaker, looking after the child at the child's home, although

the defendant did not reside there.

In this consolidated appeal, the defendant argues that five

of the seven convictions were duplicative; the evidence was

insufficient; and a single justice of this court erred in

denying his motion for a stay of execution. 5 We affirm.

In this case, the particularized injuries to the child as

charged in the seven indictments were as follows:

Indictment Lacerated liver.
1 --
substantial
bodily
injury
Indictment Lacerated spleen.
2 --
substantial
bodily
injury
Indictment Fractured humerus.
3 -- bodily
injury
Indictment Fractured tibia.
4 -- bodily
injury
Indictment Fractured iliac crest.
5 -- bodily
injury
Indictment Multiple bilateral rib
6 -- bodily fractures:
injury

5
Given the result we reach, we find no merit in the
defendant's arguments concerning the ruling of the single
justice.
5

Right thorax:
two fractures to the
posterior eleventh rib,
one fracture to the posterior
tenth rib, anterolateral
fractures of the third,
fourth, fifth, sixth,
seventh, eighth, and ninth
ribs.

Left thorax:
Posterior fractures to the
ninth, tenth, eleventh, and
twelfth ribs, and fractures
to the sixth, seventh, and
eighth ribs.

Indictment Bruises on the body.
7 -- bodily
injury

1. Double jeopardy. a. Introduction. On appeal, the

defendant submits that five of the seven convictions predicated

upon the aforementioned particularized bodily injuries to the

child were duplicative, in violation of double jeopardy rights

protected by the Fifth Amendment to the United States

Constitution and Massachusetts law. In essence, in advancing

this duplicative conviction challenge (which is raised for the

first time on appeal), the defendant argues that only two of the

child's injuries were proven to have been inflicted by separate

acts or on separate occasions, and, thus, the remaining five

convictions and punishments were barred by double jeopardy. 6

6
Sentences of incarceration were imposed on indictments
nos. 1 and 3. On indictment no. 1, for causing substantial
6

In counter, the Commonwealth submits that the "unit of

prosecution" underlying G. L. c. 265, § 13J(b), rests on an

elemental predicate of the discrete and particularized bodily

injury to a child, and that, in § 13J(b), the Legislature sought

to enact the broadest protection for children vulnerably placed

in the care of a person who commits an assault and battery upon

a child 7 or recklessly or wantonly permits the infliction of

particular injuries upon a child. The Legislature, the

Commonwealth submits, has the power to enact and define criminal

offenses, by an indictable unit of prosecution, such as set

forth in § 13J(b), without treading on double jeopardy.

For the reasons which follow, we conclude as follows:

first, that G. L. c. 265, § 13J(b), reflects a clear legislative

bodily injury, the defendant was sentenced to two years to two
years and one day in State prison. On indictment no. 3, he was
sentenced to a consecutive term of two and one-half years in the
house of correction, from and after the incarcerated term for
indictment no. 1. Postrelease probationary terms were imposed
on the remaining counts. On indictment no. 2, for causing
substantial bodily injury, a term of four years' probation was
imposed from and after the sentence on indictment no. 3. On
indictments nos. 4, 5, 6, and 7, for causing bodily injury,
four-year terms of probation were imposed to run consecutive to
the four-year probation on indictment no. 2, but concurrent with
each other.
7
As we have noted, see notes 1 and 2, supra, the defendant
was convicted under the "reckless or wanton" theories under the
statute. Our discussion of the "unit of prosecution" will
nevertheless encompass both active and passive acts or omissions
under § 13J(b), as both are central to discerning legislative
intent concerning the unit of prosecution and are pertinent to
the indictments as returned in this case.
7

intent that the unit of prosecution may be predicated upon, and

indictments may be brought (as specifically categorized in the

statute), for discrete and particularized injuries to a child

occurring while the child is with a caretaker who commits or

recklessly or wantonly permits the infliction of such injuries

upon the child being cared for; and, second, that this unit of

prosecution does not violate double jeopardy, in light of "the

legislative power to define offenses," Commonwealth v. Levia,

385 Mass. 345, 347 (1982), and the legislative intent of

§ 13J(b) "to authorize imposition of multiple punishments for

concurrent violations," Commonwealth v. Crawford, 430 Mass. 683,

686 (2000), with respect to discrete and particularized injury

to the child held in a caretaking setting. Cf. Commonwealth v.

Welansky, 316 Mass. 383 (1944).

The issues presented in this appeal involve the third prong

of double jeopardy, that is, whether multiple punishments are

being imposed. "The double jeopardy clause of the Fifth

Amendment to the United States Constitution protects against

three distinct abuses: a second prosecution for the same

offense after acquittal; a second prosecution for the same

offense after conviction; and multiple punishments for the same

offense" (emphasis added). Mahoney v. Commonwealth, 415 Mass.

278, 283 (1993). It is this last multiple punishment issue

which is presented in this appeal.
8

We address first the question whether (as the Commonwealth

submits) the Legislature, in enacting G. L. c. 265, § 13J(b),

intended to authorize as the indictable unit of prosecution --

for which there may be imposed multiple punishments -- discrete

and particularized "bodily injury" and/or discrete and

particularized "substantial bodily injury."

We then consider whether -- given a legislative intent to

define the offense prosecution unit based on specific

particularized bodily injuries to the child -- such a defined

offense prosecution unit in G. L. c. 265, § 13J(b), violates

double jeopardy, as giving rise to multiple punishments for the

same offense.

b. The unit of prosecution under G. L. c. 265, § 13J(b).

We turn to the first step in our double jeopardy analysis

directed to what unit of prosecution was intended by the

Legislature as the punishable act in G. L. c. 265, § 13J(b).

"The inquiry requires us to look to the language and purpose of

the statutes, to see whether they speak directly to the issue of

the appropriate unit of prosecution, and if they do not, to

ascertain that unit . . . ." Commonwealth v. Rabb, 431 Mass.

123, 128 (2000). See generally Bell v. United States, 349 U.S.

81, 83 (1955).

Here, there are a number of persuasive points which we

discuss herein, supporting our conclusion that the intended unit
9

of prosecution under G. L. c. 265, § 13J(b), is the discrete and

particularized bodily injury inflicted upon a child. At the

outset, it is clear that, on its face and by its plain terms,

there is no question but that G. L. c. 265, § 13J(b), is of that

class of criminal laws wherein the "purpose of the statute" is

to prevent violence perpetrated upon children who are ever so

vulnerable in a caretaking setting. The act inserting § 13J

into G. L. c. 265 was titled, "An Act Prohibiting Certain Acts

Against Children." 8 See St. 1993, c. 340. To the end of

protecting the very vulnerable child placed in a caretaker's

hands, in G. L. c. 265, § 13J(b), the Legislature covered a

child with a wide protective blanket in a caretaking setting.

We believe that enveloping protection for victim-children, and

8
With respect to the legislative history, Justice Dreben
wrote in Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 419-420
(1999), as follows:

"Commonwealth v. Raposo, 413 Mass. 182 (1992), held that a
parent who failed to take reasonable steps to prevent
sexual attacks on her minor daughter by a third person
could not be found guilty of being an accessory before the
fact. More than an omission to act was required. In a
concurrence, Justice Abrams, noting that 'a majority of
State Legislatures have enacted criminal child abuse
statutes which proscribe acts of omission as well as the
affirmative infliction of harm,' id. at 189-190, and noting
also that 'compelling arguments can be made for and against
criminalizing' acts of omission, stated: 'It is for the
Legislature to determine whether expanding that duty by
criminalizing acts of omission would better protect the
Commonwealth's children.' Id. at 191-192. In response,
the Legislature enacted G. L. c. 265, § 13J . . . ."
10

the core prosecution unit of § 13J(b), is codified within the

specific and discrete enumerated bodily injuries precisely

defined in § 13J(a) for "bodily harm" and "serious bodily harm."

These key definitional terms are central to understanding the

expanse of protection the statute affords, and the unit of

prosecution envisioned by the Legislature. For ease of

reference, we repeat the material definitional terms here:

"[b]odily injury" encompasses: "substantial impairment of the

[child's] 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."

G. L. c. 265, § 13J(a). "Substantial bodily injury" includes "a

permanent disfigurement [of the child], protracted loss or

impairment of a function of a body member, limb or organ, or

substantial risk of death." Ibid. (The full definitions are

set forth in note 3, supra.)

Given the especial vulnerability of a child held in a

caretaking custody, we read G. L. c. 265, § 13J(b), as an

informed and quite purposeful enactment by the Legislature

defining the unit of prosecution predicated upon the victim-

child's injuries -- not the often unknowable inflicting actions

or omissions by a caretaker or another. See, e.g., Commonwealth
11

v. Roderiques, 462 Mass. 415, 422 (2012) ("The elements of

§ 13J[b], fourth par., are [i] a child under fourteen; [ii] in

care and custody; [iii] a substantial bodily injury; [iv] the

defendant wantonly or recklessly permitted this substantial

bodily injury, or wantonly or recklessly permitted another to

commit an assault and battery on the child causing substantial

bodily injury").

The prosecution of cases involving injuries to a child

"stands in the not particularly unfamiliar posture of a child

left in the custody of an identified adult, who suffers injuries

of a type that are inconsistent with the explanation given by

the custodian and not attributable in the circumstances to

ordinary accidental causes." Commonwealth v. Roman, 43 Mass.

App. Ct. 733, 735 (1997), S.C., 427 Mass. 1006 (1998). 9

9
The tragic litany of child injury cases described in
Commonwealth v. Roman, 43 Mass. App. Ct. at 735, illustrates the
circumstance of known child injury, but unknowable acts of
infliction by the caretaker:

"Commonwealth v. Woods, 339 Mass. 7, 8-10 (1959) (jury
could infer from severity of blow to child's head that it
had been struck by defendant during twenty minutes when he
was alone with the child in the bathroom); Commonwealth v.
Labbe, 6 Mass. App. Ct. 73, 75-76 (1978) (fifteen month old
child left in custody of defendant suffered three liver
lacerations inconsistent, according to physician, with
having been caused by ordinary falls or collisions);
Commonwealth v. Cokonougher, 32 Mass. App. Ct. 54, 55-56,
61 (1992) (child in sole care of defendant overnight found
asphyxiated); Commonwealth v. Azar, 32 Mass. App. Ct. 290,
304-308 (1992) (four month old child left in custody of
12

Measured by the core protections contained in the clear

definitional terms of G. L. c. 265, § 13J(a) -- all of which are

crafted to surround the child and insulate against any injury to

be suffered while in the custody of a caretaker, whether

inflicted deliberately or recklessly, the Commonwealth, as

prosecutorial entity, may bring indictments under G. L. c. 265,

§ 13J(b), even if the duration of, the precise manner and means

of the infliction of the injuries, and the number of blows

struck are unknowable because delivered closed from view

(meaning without witness thereto) in a private caretaking

setting. "Under c. 265, § 13J, it does not matter who committed

the batteries, and each person having the care and custody of

the child may be found guilty of the offense of permitting

anyone to commit an assault and battery." Commonwealth v.

Garcia, 47 Mass. App. Ct. 419, 424 (1999). The Commonwealth is

not required to prove precisely how the designated injuries

occurred, or how the person charged under § 13J either inflicted

or permitted the infliction of the discrete and particularized

injury upon the child. See Commonwealth v. Robinson, 74 Mass.

App. Ct. 752, 759 (2009). General Laws c. 265, § 13J(b),

reaches both active, affirmative acts of commission, as well as

defendant on morning when she suffered multiple fractures
of bones and other severe injuries)."
13

inactive, passive omissions that permit injury, or that allow

another to inflict bodily injury upon the child. See ibid.

Further reflecting the legislative intent to set the unit

of prosecution as the discrete and particularized bodily injury

suffered by the child is the staircasing of the penalties, with

enhanced criminal sentences tied to injuries to particularized

body parts. Specifically, G. L. c. 265, § 13J(b), provides

greater, harsher penalties for acts and omissions that lead to

substantial bodily injury versus less serious bodily injury.

This differential in the statute is categorized and defined by

black-letter definitions in § 13J(a) expressly linked to bodily

parts (i.e., "[b]odily injury" defines, for example, injuries by

a burn, bone fracture, subdural hematoma, damage to internal

organs, and to bodily functions; and "[s]ubstantial bodily

injury" defines, for example, permanent disfigurement, loss of a

function of a body member, limb or organ, or injury posing

substantial risk of death). See note 3, supra (full

definitions).

For these reasons, we conclude that the seven indictments

in this case under G. L. c. 265, § 13J(b), are based on an

appropriate unit of prosecution and are consistent with the

legislative intent that the unit of prosecution may be

predicated upon, and indictments may be brought for, any

discrete and particularized injury to a child held within the
14

control of a caretaker who commits or recklessly or wantonly

permits such discrete and particularized injuries, or permits

another to commit an assault and battery resulting in such

injuries to the child being cared for. 10

c. The multiple punishment issue. Given our determination

that the unit of prosecution is the discrete and particularized

bodily injury to the child, the next level of analysis involves

whether double jeopardy is violated because multiple punishments

may flow from convictions on multiple indicted units of

prosecution -- in other words, multiple convictions on multiple

indictments for the child's discrete bodily part injuries, as in

this case. We conclude not. "[F]ew, if any, limitations are

imposed by [the double jeopardy] clause on the legislative power

to define offenses." Commonwealth v. Levia, 385 Mass. at 347.

That a unit of prosecution predicated on discrete and

particularized injuries (such as charged in the seven

indictments in the present case) does not violate double

jeopardy harkens back to the legal principles of Commonwealth v.

Welansky, 316 Mass. 383 (1944). In the Welansky case, there

were nineteen manslaughter convictions for the same predicate

10
For the reasons stated above, we reject the defendant's
argument that G. L. c. 265, § 13J(b), is ambiguous and therefore
the rule of lenity should apply. Rather, the statute, as we
discuss above, reflects a clear and plain statutory offense
structure based on discrete and particularized injuries to a
child's body.
15

wanton and reckless acts and omissions which created the

inherently dangerous conditions leading to the inferno of the

Boston Cocoanut Grove fire. In response to the defendant's

argument that the indictments should have been quashed, the

court wrote as follows. "The Commonwealth did specify the

nature of the mortal injuries suffered by the different victims

. . . and the harmful consequences to which acts or omissions of

the defendant exposed the several victims and which could have

been foreseen by the defendant." Welansky, 316 Mass. at 394.

"For constitutional purposes all that is required is that the

indictment, read with the bill of particulars, be sufficient

fully, plainly, substantially and formally to give the defendant

reasonable knowledge of the crime with which he is charged"

(quotations omitted). Id. at 396.

Indeed, of further legal pertinence to this case, where the

defendant was convicted only of wanton or reckless acts or

omissions, see notes 1 and 2, supra, is the Welansky definition

of "wanton or reckless," which is embedded in G. L. c. 265,

§ 13J(b). As Welansky held and as G. L. c. 265, § 13J(b),

tracks, "The essence of wanton or reckless conduct is

intentional conduct, by way either of commission or of omission

where there is a duty to act, which conduct involves a high
16

degree of likelihood that substantial harm will result to

another." Welansky, 316 Mass. at 399. 11

Where, as here, there were numerous injuries occurring over

a period spanning close to thirty days, it was open to the

Commonwealth to seek multiple indictments, each specifically

identifying the discrete injury suffered. Compare Commonwealth

v. Vega, 36 Mass. App. Ct. 635, 641 (1994) (no error in imposing

successive sentences for unnatural rape and rape occurring in

course of single criminal episode; "[t]he realities of the

multiple attacks on the victim warranted -- although they did

not require -- multiple indictments and consecutive

sentences"). 12 Cf. Commonwealth v. Dingle, 73 Mass. App. Ct.

11
The controlling holding in Welansky -- indeed the holding
for which the case is most "famous" -- is the common-law
criminal pronouncement that, "[i]f by wanton and reckless
conduct bodily injury is caused to another, the person guilty of
such conduct is guilty of assault . . . [and] if death results
he is guilty of manslaughter." Welansky, 316 Mass. 401.
However, in the affirmance of the multiple indictments for and
convictions of the multiple deaths, Welansky also supports that
the proper unit of prosecution was predicated upon indictments
returned for each of the victims who died as a result of the
defendant's single course of reckless and wanton conduct.
12
As to the quoted statement in Commonwealth v. Vega,
supra, compare Commonwealth v. Tavares, 61 Mass. App. Ct. 385
(2004) (upon special verdict slips, each identifying the body
part injured, each defendant was convicted, inter alia, on six
indictments, each charging violation of G. L. c. 265, § 13J[b],
first par.; evidence showed that child was well before being
placed into defendants' care for approximately one month), with
Commonwealth v. Garcia, 47 Mass. App. Ct. at 421-422
(notwithstanding medical evidence showing twenty-six rib
fractures, a skull fracture, fractures of both clavicles, and
17

274, 277, 282-283 (2008) (no double jeopardy violation in

charging defendant on three indictments for possession with

intent to distribute child pornography where police found, inter

alia, 945 photographs, 177 videotapes, and multiple floppy

discs; because possession of a single image constitutes a

violation of the statute, "the Commonwealth could have indicted

the defendant separately for each image he possessed or

distributed").

Also consistent with our conclusion that multiple injuries

to a child, such as are predicated in G. L. c. 265, § 13J(b),

may be the subject of separate indictments and punishments

without violating the multiple punishment bar of double jeopardy

is Commonwealth v. Crawford, 430 Mass. 683 (2000). In Crawford,

as in this case, the court focused analysis on the third

multiple punishment category of double jeopardy protection, and

held that "the Legislature intended to authorize imposition of

multiple punishments for concurrent violations of the

[manslaughter] statute arising out of a single transaction"

because the appropriate unit of prosecution for such crimes is

the person killed, not the underlying criminal act. Id. at 686-

two fractures of the leg, and expert testimony identifying "at
least two and probably three different times during which the
injuries occurred," only two indictments were returned against
each defendant under G. L. c. 265, § 13J[b], and each defendant
was convicted on only one of the indictments).
18

687. 13 "There is no merit to the defendant's contention that he

may not be punished for two homicides when he fired only one

shot. The 'probable harmful consequences' of a single gunshot,

like the fire started by a single match or the car running out

of control due to a single reckless miscalculation, are not

limited to one death." Id. at 687, quoting from Commonwealth v.

Vanderpool, 367 Mass. 743, 747 (1975). Accord Commonwealth v.

Melton, 436 Mass. 291, 295 (2002) ("a single act can result in

multiple convictions if there are multiple victims"). See also

Commonwealth v. Levia, 385 Mass. at 350-351 (no error in

sentencing defendant on two convictions of armed robbery of two

individuals in the course of a single incident; no double

jeopardy violation because the statute was directed to the

assault element of robbery).

13
Where a statute governing an offense does not focus on a
discrete injury to an individual (unlike G. L. c. 265, § 13J[b])
but, rather, the conduct of the offender, the Supreme Judicial
Court has found that the correct unit of prosecution does not
take into account the number of discrete victims. See, e.g.,
Commonwealth v. Constantino, 443 Mass. 521, 524 (2005) (holding
that the unit of prosecution under G. L. c. 90,
§ 24[2][a 1/2][2], for leaving the scene of a motor vehicle
accident, was the driver's conduct, not the number of potential
victims affected by the conduct). The Constantino court
observed that, in that case, "the fact that [the] statute is
listed as a motor vehicle offense under G. L. c. 90, rather than
a crime against a person under G. L. c. 265, further supports
the view that the act is scene related." Ibid.
19

2. Sufficiency of the evidence. Applying the standard of

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we are

persuaded that there was sufficient evidence to support the

seven convictions.

The following is a summary of the evidence from the trial

record. On September 17, 2007, four month old Rory was brought

to Winchester Hospital by his father, the defendant, and the

child's mother, Emelyn Ortolaza. The parents referred to

swelling in the child's shoulder.

Examination at this first response hospital revealed

seventeen rib fractures at different stages of healing, a

fractured humerus, a fractured tibia, and a fractured iliac

crest (a bone in the pelvis). There were bruises over the

baby's entire body including on the left buttocks, leg, head,

and right shoulder. There was a notable bruise on Rory's rib

cage which virtually "looked like a handprint." The child was

subsequently taken to Children's Hospital by ambulance. Further

review by the Children's Hospital child abuse protection team

also discovered that the baby had suffered a lacerated spleen

and a lacerated liver. According to the trial testimony of Dr.

Alice Newton, one of the treating physicians from the child

protection team at Children's Hospital, the multiple injuries

were not consistent with having been caused by any accident.
20

The medical evidence concerning the time frame of the

indictments (commencing on August 21, 2007, and continuing up to

the hours just before the September 17 hospitalization) within

which the injuries were inflicted upon Rory was proximate to the

first day the defendant became the child's primary caretaker as

the mother returned to full-time work. That is, commencing on

August 21, 2007, the defendant became Rory's primary full-time

caretaker, and stayed with the baby at the mother's house during

the daytime work hours, and sometimes at night and during

weekends. Prior to the September 17 hospitalization, at the

child's last doctor visits for routine care, on August 7 and

August 15, 2007, the medical providers saw nothing amiss. The

particular time frame concerning particular injuries is

discussed infra.

a. The indictments corresponding to the particular

injuries inflicted. In addressing the defendant's challenge to

the sufficiency of the evidence, we set forth the discrete and

particularized bodily injuries to the child, and the trial

evidence relating thereto for each conviction.

(1) The lacerated liver (indictment 001; substantial bodily

injury). When Rory was brought to Children's Hospital, he had

"markedly elevated" liver enzymes, which, according to the

medical evidence, was an indication of liver damage. A

computerized tomography scan of the baby's liver showed a grade
21

"4-5" (of 6) laceration of the liver, an injury which

represented "very serious and severe damage to the liver." Dr.

Newton described the liver injury as reflective of "very violent

trauma" consistent with "some type of blow or crushing of the

area." This type of injury is not seen "in household falls" or

in "clumsy handling of infants." In a baby of the victim's age,

this type of liver injury would be like "being hit in the

abdomen or . . . either being stepped on or hit or crushed . . .

." There was "a very large area of damage to the liver," and

extensive bleeding so pronounced that the baby "could have bled

to death at the time of the injury." In Dr. Newton's medical

opinion and diagnosis, the child's liver injury had happened

recently, probably within a "few days" preceding the September

17, 2007, hospital admission.

(2) The lacerated spleen (indictment 002; substantial

bodily injury). The injury to Rory's spleen comprised "an area

of contusion or laceration that went from the front to the back

of the spleen." This kind of injury is very painful and very

dangerous. The injury to the spleen had been inflicted within

days of the September 17 hospitalization.

(3) The fractured humerus (indictment 003; bodily injury).

According to the medical evidence, the fracture of Rory's

humerus bone had occurred relatively recently in relation to the

September 17 hospital admission. This dating rested on the fact
22

that there was not present any "new . . . bone formation" such

as would be expected if the injury had existed for seven to ten

days. Further, according to the medical evidence, the baby's

humerus bone fracture was caused by a very different kind of

traumatic event than that which could have caused the laceration

of the child's liver and spleen. This fracture was in an

unusual location, where the upper arm meets the shoulder socket,

and this humerus fracture would require "a lot of force." That

degree of force would be caused by an unreasonable "jerking" of

the child or "swinging the child by the arm."

(4) The fractured tibia (indictment 004; bodily injury).

There was a "spiral" fracture to Rory's lower leg bone, which

was an "acute" or new injury. In order to have been inflicted,

the "spiral" fracture to the tibia required "some kind of

torsion or torque, almost twisting movement, in order to

develop."

(5) The fractured iliac crest (indictment 005; bodily

injury). The injury to the iliac crest, located "by the hip

bone," was, in the doctor's opinion, a "very uncommon" injury

that would be inflicted by means of "a tremendous amount of

violence and force." The infliction of this substantial bodily

injury would be the result of either a "direct blow or some type

of movement that would force [the child's] leg kind of up into

the pelvis or force it back in a forceful way to create pulling
23

or attraction or direct trauma to that bone." Such major pelvic

trauma with resulting iliac crest fracture, as the physician

testified, would be comparable to fractures suffered in car

crashes.

(6) The fractured ribs (indictment 006; bodily injury).

Seventeen of Rory's ribs were fractured. Thirteen rib fractures

showed "callus formation," which indicated that the force

causing the fracture may have occurred in the range of seven to

ten days before the September 17 hospital admission. Four of

the other fractures bore no callus formation, reflecting a more

recent infliction, within approximately seven days of September

17.

There was evidence that "different types of trauma can lead

to different locations of fractures in the rib." The four

"younger" fractures on the left side of the child's body were

inflicted by means of a "different pressure and a different

mechanism" from the manner in which the other, older, thirteen

fractures were inflicted. The older rib fractures as well as

the tibia fracture were "clearly not at the same time."

(7) Bruises (indictment 007; bodily injury). There were

four separate bruises. The child's body was marked by separate

distinct bruises including finger-shaped bruises on his abdomen,

a singular large bruise on his abdomen, and other bruises on his

arm and the right side of his forehead.
24

b. Assessing the evidence. Given the above evidence, and

applying the Latimore standard, we find no merit in the

defendant's arguments that the circumstantial evidence was

inadequate; that the evidence was so equivocal as to result in

"conviction[s] based on conjecture"; or that the Commonwealth

failed to prove that any inaction on the part of the defendant

"resulted" in the child's injuries, or that the liver and spleen

injuries were so severe as to conform to the definition of

"substantial bodily injury" in G. L. c. 265, § 13J. Nor is

there any merit in the defendant's argument that the

Commonwealth failed to prove that the defendant's failures to

act amounted to wanton or reckless conduct. See Commonwealth v.

Welansky, 316 Mass. at 399.

The defendant not only challenges the over-all

insufficiency of the evidence which we address above but also,

in a further variation, contends that there was insufficient

evidence that the child's injuries would have been so apparent

that a reasonable person would have known that the injuries

existed and, thus, the defendant could not be deemed under the

statute to have "permitted" the injuries to have happened. This

insufficiency challenge is also unavailing.

In the special verdicts, the jury expressly found that the

defendant, under G. L. c. 265, § 13J(b), third and fourth pars.,

having care and custody of the child, wantonly or recklessly
25

permitted substantial bodily injury (indictment nos. 1 and 2) or

bodily injury (indictment nos. 3-7) to the baby or wantonly or

recklessly permitted another to inflict those injuries. For all

the reasons previously stated, and based on the analysis of the

evidence set forth therein, there was more than ample evidence

to support those verdicts. To argue, as the defendant does,

that an "ordinary normal man" would not have "sensed grave

danger" to the child from many of the patently obvious injuries

inflicted upon the baby's body and what must have been cries of

anguish is simply not a sustainable contention. 14

14
We further reject the defendant's contention that only
two of the injuries occurred on separate occasions. That
contention is belied by the great weight of the medical trial
evidence. Even were one to put aside the discrete and
particularized injuries to the child, and focus on time-dating
the violent act or acts as different "occasions" in point of
time (as the defendant would have us do), the medical evidence
in this case dated the injuries in five of the indictments as
bearing indicia of infliction at different points in time. It
was only the massive injuries in the lacerations to the liver
and spleen (indictment nos. 1 and 2), and the fractures of the
tibia and iliac crest (indictments nos. 4 and 5) that were not
susceptible to precise time-dating in the medical testimony. As
to the spleen and liver lacerations, Dr. Newton testified that
it was not possible to determine whether the injury to the
spleen might have been inflicted at the same time as the injury
to the liver, because, given the extreme trauma that would lead
to both the deep lacerations to the liver and spleen, it was
"logically" possible that the blow or blows causing the
lacerations of the two organs may have been delivered close in
time or at the same time. Similarly, it was also not possible,
given the physical characteristics of the respective bone
structures, to differentiate by time-dating when the tibia
fracture and the iliac crest fracture were inflicted and whether
these bones were broken and fractured within the same time
frame, or indeed could have happened at the same time.
26

Conclusion. We bear in mind, as referenced earlier, that

this case "stands in the not particularly unfamiliar posture of

a child left in the custody of an identified adult, who suffers

injuries of a type that are inconsistent with the explanation

given by the custodian and not attributable in the circumstances

to ordinary accidental causes." Commonwealth v. Roman, 43 Mass.

App. Ct. at 735. The host of discrete and particularized

injuries to the child's body parts -- a phrase that is wholly

inadequate to describe the horrific damages to this four month

old baby's body and the number of blows that would have been

delivered to cause the baby's physical damage and suffering --

provides the quintessential explanation for why the Legislature

enacted G. L. c. 265, § 13J(b), to define the unit of

prosecution by the discrete and particularized injury to the

child committed by or permitted to be committed by the wanton

and reckless caretaker.

Judgments affirmed.

Order of single justice
affirmed.