Opinion
16-P-408
06-23-2017
COMMONWEALTH v. Daniela ALVAREZ-JIMENEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of wantonly or recklessly permitting substantial bodily injury to a child, in violation of G. L. c. 265, § 13J(b ), and misleading a police officer, in violation of G. L. c. 268, § 13B(1)(c ). On appeal, she claims numerous errors concerning the statutes under which she was convicted, the sufficiency of the evidence, and the prosecutor's closing argument. We affirm.
1. Constitutionality of statutes. The defendant claims that neither of her convictions can stand due to the vagueness of each statute under which she was convicted. We disagree.
a. General Laws c. 265, § 13J(b) . First, the defendant asserts that G. L. c. 265, § 13J(b ), is unconstitutionally vague because the statutory term "permits" is overbroad; she faults it for "requiring potential defendants to affirmatively undertake some action," without clarifying what actions should be taken. Whether this challenge asserts vagueness on the statute's face or as applied, it is presented for the first time on appeal, and was not properly preserved by a motion to dismiss or by a motion for a required finding of not guilty. Accordingly, we review for error and, if error occurred, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 355 & n.8 (2015).
The statute provides in relevant part 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 ..." (emphases supplied).
G. L. c. 265, § 13J(b ), inserted by St. 1993, c. 340, § 2.
A criminal statute must define the offense "in terms that are sufficiently clear to permit a person of average intelligence to comprehend what conduct is prohibited." Commonwealth v. Spano, 414 Mass. 178, 180 (1993). The statute "must not be so vague that it opens itself up to arbitrary enforcement and prosecution." Commonwealth v. St. Louis, supra. However, "legislative language need not be afforded ‘mathematical precision’ in order to pass constitutional muster." Commonwealth v. Reyes, 464 Mass. 245, 249 (2013), quoting from Commonwealth v. Bohmer, 374 Mass. 368, 372 (1978). "A statute will be deemed constitutional if it ‘conveys [a] sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ " Commonwealth v. St. Louis, supra at 355-356, quoting from Commonwealth v. Adams, 389 Mass. 265, 270 (1983).
In this case, we conclude that the term "permits" is sufficiently clear and not unconstitutionally vague. " ‘When a statute does not define its words we give them their usual and accepted meanings,’ deriving such meanings ‘from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions.’ " Commonwealth v. Gopaul, 86 Mass. App. Ct. 685, 689 (2014), quoting from Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). Webster's Third New Intl. Dictionary 1683 (1993) defines "permit" as to "allow" or "tolerate," or even "to make possible." These terms are commonly understood, and where "permit" is synonymous, we conclude that it has an accepted and well understood meaning, and applying that meaning in this case does not render the statute unconstitutionally vague. See Commonwealth v. St. Louis, supra at 358-359. There was no error, and thus no risk that justice miscarried.
b. General Laws c. 268, § 13B(1)(c) . Second, the defendant claims that G. L. c. 268, § 13B(1)(c ), as amended by St. 2010, c. 256, § 120, is "grammatically ambiguous," so that her conviction of misleading a police officer must be vacated. We disagree. As with her challenge to G. L. c. 265, § 13J(b ), her claim is waived for her failure to preserve it below, and we again review for error and, if any, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. at 355 & n.8.
The crux of the defendant's argument rests on her position that the intent element of the statute is ambiguously worded. However, the Supreme Judicial Court has consistently held that the offense essentially is comprised of four elements: "(1) wilfully misleading, directly or indirectly, (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with (4) a criminal investigation." Commonwealth v. Paquette, 475 Mass. 793, 797 (2016) (footnote omitted). The statute has consistently been analyzed and reviewed in this manner. See Commonwealth v. Morse, 468 Mass. 360, 370 (2014). Though the defendant claims that the "such a proceeding" wording does not line up with the verbiage before it, the statute is not ambiguous as to its meaning, and an ordinary person is on notice of what is criminalized. Lenity is not warranted here, and there was no substantial risk of a miscarriage of justice.
The defendant's reliance on Commonwealth v. Hamilton, 459 Mass. 422 (2011), is misplaced. In Hamilton, the court determined the words "harm" and "punish" were ambiguous, as the statute seemed to intend to prohibit harming or punishing a person involved in certain proceedings, not the proceeding itself. See id. at 435-436. However, the court determined that it could not "interpret an ambiguous statute in a manner that disadvantages a criminal defendant" where it would have to speculate on the legislative intent. Id. at 436. Such an ambiguity does not exist here.
The statute provides the following in relevant part:
"(1) Whoever, directly or indirectly, willfully
"...
"(c) misleads, intimidates or harasses another person who is:
"...
"(iii) a judge, juror, grand juror, prosecutor, police officer, federal agent, investigator, defense attorney, clerk, court officer, probation officer or parole officer;
"...; or
"(v) a person who is or was attending or had made known his intention to attend a civil or criminal proceeding, including criminal investigation, grand jury proceeding, trial, other criminal proceeding of any type, probate and family proceeding, juvenile proceeding, housing proceeding, land proceeding, clerk's hearing, court-ordered mediation, any other civil proceeding of any type with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished...." (Emphases supplied.)
G. L. c. 268, § 13B, as amended by St. 2010, c. 256, § 120.
2. Sufficiency of the evidence. The defendant next claims that in allowing the case to go to the jury, the judge erred because the "Commonwealth's proof was insufficient to tilt the balance in favor" of the defendant's guilt on either charge. We disagree. In each instance the defendant fails to view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
a. Wanton or reckless permitting of substantial bodily injury to a child. First, the Commonwealth provided evidence that the defendant either knew, or should have known, that the child was in danger. He was nonambulatory, and over a period of two months had nine serious injuries, all of which made him cry or express distress. These injuries were made apparent after the child had spent time alone with the defendant's boy friend. Her boy friend failed to provide plausible explanations, and even the child's outside caregivers expressed suspicions. A reasonable person would have recognized the pattern of the injuries as concerning. These factors were absent from Commonwealth v. Dragotta, 476 Mass. 680, 686-689 (2017), upon which the defendant relies.
Second, the defendant took no steps to minimize the injuries to the child. She did not remove herself and the child from the boy friend's home, nor did she take any steps to minimize the amount of time the child spent alone in the boy friend's care. "Wanton or reckless conduct may occur by act or omission where there is a duty to act and the failure to so act provides a ‘high degree of likelihood that substantial harm will result to another.’ " Commonwealth v. Robinson, 74 Mass. App. Ct. 752, 759 (2009), quoting from Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).
Finally, by deciding not to share the extent, timing, or real circumstances surrounding the child's injuries with his medical providers, the defendant failed to provide proper protection for the child. Instead, she continuously withheld information and changed her stories. She even attempted to deflect suspicion from her boy friend by stating she was the only caregiver for the child. Her suggestion that her seeking medical treatment on numerous occasions negates her culpability is unpersuasive, as "[persons] may be reckless within the meaning of the law although [they themselves thought they were] careful.... This being so, their omissions (if not their actions) amounted to wanton or reckless conduct." Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 422-423 (1999) (quotation omitted). There was sufficient evidence here to support the jury's verdict.
b. Misleading a police officer. The defendant also claims error in the jury's finding of guilt with respect to the misleading a police officer charge, claiming insufficient evidence that she intended to interfere with a criminal investigation. We disagree.
The defendant purposefully and intentionally lied to Detective Gibson in telling him that she had been home, alone, with the child all day. This information led the police to believe that she was the sole caregiver the day of the child's injuries, shifting their focus from potentially pursuing an investigation into the defendant's boy friend. She also continued with her misleading conduct by falsely telling the detective that the child had been having problems with his leg two weeks before the visit to the hospital; she then changed her story and stated that she observed the injury to his leg after his nap. These statements were given in an attempt to lead police in a different direction, and reasonably could have done so—and, in fact, did do so. There was sufficient evidence to convict the defendant of misleading a police officer. See Commonwealth v. Tejeda, 476 Mass. 817, 819-820 (2017).
3. Closing argument. The defendant claims that the prosecutor's closing argument contained impermissible suggestions, not supported by the evidence, which created a substantial risk of a miscarriage of justice. More specifically, the defendant claims it was improper for the prosecutor to have argued that the defendant's failure to seek further medical attention for her child's shoulder and chest bruising and her withholding from medical providers significant details about the cause, scope, and timing of his injuries were wanton and reckless. We disagree.
A prosecutor's closing remarks are to be viewed "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Caillot, 454 Mass. 245, 258 (2009). The prosecutor is permitted to argue the evidence that was presented, and any fair inferences therefrom. See Commonwealth v. Deane, 458 Mass. 43, 55-56 (2010). That includes using the evidence as such to obtain a conviction. See Commonwealth v. Wilson, 427 Mass. 336, 350 (1998).
At trial, there was evidence that the defendant did not return to the hospital with the child when his shoulder had not healed, as she had been instructed. She also did not seek medical care for a large, and persisting, bruise on the child's chest. There was also evidence that she did not tell medical personnel the entire truth, or any truth, when it came to how her son received the injuries, and there was testimony that those professionals need accurate reporting in order to provide quality treatment and diagnoses. This evidence supported the prosecutor's argument, and it was proper for the prosecutor to argue which evidence supported a conviction. Indeed, "[c]ounsel may fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury." Commonwealth v. Corriveau, 396 Mass. 319, 336 (1985) (quotation omitted). There was no error and thus no risk that justice miscarried.
Judgments affirmed.