Opinion
12-P-1565
12-11-2014
COMMONWEALTH v. JASON DAMIANO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of three counts of reckless endangerment of a child in violation of G. L. c. 265, § 13L, and one count of assault and battery in violation of G. L. c. 265, § 13A. On appeal, the defendant argues that (1) there was insufficient evidence to support his convictions of reckless endangerment and (2) his motion to sever the child endangerment counts from the assault and battery counts should have been allowed. We affirm.
The defendant was charged with four counts of assault and battery on a child by means of a dangerous weapon in violation of G. L. c. 265, § 15A(c)(iv). The jury convicted him of the lesser included offense of assault and battery on one count. The trial judge declared a mistrial on two counts, and ultimately a nolle prosequi was entered on those counts. The jury acquitted the defendant of the remaining count.
1. Sufficiency of the evidence. The defendant first contends that there was insufficient evidence of a "substantial" risk of serious bodily injury to his three children. Under the statute, "[t]he risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." G. L. c. 265, § 13L, inserted by St. 2002, c. 322, § 2. "[T]he risk must be a good deal more than a possibility . . . ." Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008).
General Laws c. 265, § 13L, inserted by St. 2002, c. 322, § 2, provides: "Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished . . . ."
Taking the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found beyond a reasonable doubt that the defendant, after combining alcohol and prescription painkillers, passed out in his car in the front yard, leaving his children, aged five years, three years, and eight months, unsupervised inside the house where they had unfettered access to typical household hazards, such as bleach and other cleaning agents. In addition, the children were free to roam about and leave the house, which was situated on a busy street. They also had access to the loaded, cocked gun that lay, with its safety off, on the front passenger's side seat of the unlocked car in which the defendant was passed out, and in circumstances from which a rational jury could infer that his presence might draw the children to it.
The defendant's contention that the Commonwealth failed to prove the children had access to household hazards is without merit. There was evidence that the household cabinets were unlocked and that the children were able to run out of the house into the front yard. See Commonwealth v. White, 452 Mass. 133, 136 (2008) ("[A]n inference drawn from circumstantial evidence need only be reasonable and possible; it need not be necessary or inescapable. . . . We do not require that every inference be premised on an independently proven fact" [quotation marks and citations omitted]).
The defendant's argument that the evidence was insufficient because there was no evidence of the force required to pull the gun's trigger overlooks the inherent danger in a loaded and unsecured weapon, as reflected in our laws governing the storage of firearms. See G. L. c. 140, § 131L; Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 319 (2011) (the firearm storage act is "part of an over-all scheme of gun control legislation designed 'to prevent the temptation and the ability to use firearms to inflict harm, be it negligently or intentionally, on another or on oneself'"), quoting from Commonwealth v. Lee, 10 Mass. App. Ct. 518, 523 (1980).
The defendant contends that without direct evidence of how long he was in his car, the element of substantial risk was left to speculation. Direct evidence was not necessary, and the circumstantial evidence sufficed to conclude that this was not a momentary lapse of attention to the children. The defendant was found in circumstances that showed he had placed his children at risk for a period of time that included the time required to intoxicate himself to the degree that the police officer who happened upon him had significant difficulty rousing him. Empty beer cans and an empty bottle of Sambuca liqueur in the car permitted the inference that the defendant had spent a substantial period of time drinking in the car.
The defendant next argues there was insufficient evidence of his wanton or reckless intent. "[W]anton or reckless behavior occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury . . . to a child." G. L. c. 265, § 13L. Wanton or reckless conduct "has long been understood in the criminal law as 'intentional conduct . . . involv[ing] a high degree of likelihood that substantial harm will result to another.'" Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 259 (2013), quoting from Commonwealth v. Levesque, 436 Mass. 443, 451-452 (2002). "Such intentional conduct 'is grounded in intent to engage in the reckless conduct and not intent to bring about the [substantial risk of serious bodily injury].'" Commonwealth v. Figueroa, supra, quoting from Commonwealth v. Levesque, supra at 452. Here, a rational fact finder could have found that the defendant intended to engage in the reckless conduct of becoming severely intoxicated while leaving his three young children untended. Nothing more was required. See Commonwealth v. Figueroa, supra.
2. Motion to sever. A motion to sever falls within the sound discretion of the trial judge. Commonwealth v. Mahar, 21 Mass. App. Ct. 307, 317 (1985). "[T]o prevail on a claim of misjoinder, the defendant 'bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.'" Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). The judge did not abuse his discretion by ruling the charges were sufficiently factually similar to be "related" under Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979), and therefore properly joined. All charges related to the defendant's treatment and care of his children. Even assuming arguendo that the charges should not have been joined, the defendant has not shown prejudice. It is clear from the verdicts (see note 1, supra) that the jury were skeptical of the Commonwealth's theory and proof on the assault charges and, in particular, of the testimony of the oldest child. There is nothing to indicate that the assault charges had any effect on the endangerment charges, which depended almost entirely on the testimony of the police officer who arrived on scene. See Commonwealth v. Gallison, 384 Mass. 184, 197 (1981).
Judgments affirmed.
By the Court (Green,
The panelists are listed in order of seniority.
Clerk Entered: December 11, 2014.