Opinion
21-P-96
11-08-2022
COMMONWEALTH v. NANCY G. INTELISANO.
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).
Neyman, Ditkoff & Hershfang, JJ.
The panelists are listed in order of seniority.
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
As a caretaker to her boyfriend's two sons, aged four and nine, the defendant abused them, focusing particularly on the four year old. After a jury trial, the defendant was convicted of three offenses including, as relevant here, witness intimidation pursuant to G. L. c. 268, § 13B, and reckless endangerment of a child pursuant to G. L. c. 265, § 13L. She challenges the sufficiency of the evidence to support these convictions. We affirm.
The defendant also was convicted of assault and battery on a child with injury pursuant to G. L. c. 265, § 13J (b). Besides noting the conviction and the related sentence, the defendant does not make any separate arguments about that conviction.
Background.
In October or late 2015, the defendant began dating the father of two boys. Over the course of their relationship, the defendant became increasingly involved in the day-to-day care of her boyfriend's sons. Sometime late in 2015, the defendant began living with her boyfriend and providing childcare; by March 2016 she was caring for the boys at least six days a week.
The defendant subjected the boys to a wide range of physical and emotional abuse. After visits with the defendant before they moved in together, the boys often returned covered in bruises, which they attributed to playing or wrestling. The nine year old (older victim) suffered nighttime incontinence, which was abnormal for him, after returning from the defendant's home. The abuse increased when the defendant began living with the boys and culminated in the defendant's breaking the arm of the four year old (younger victim) in May 2016. The defendant moved out at that time.
At trial, the boys detailed the abuse they endured at the hands of the defendant. The younger victim testified that, among other things, the defendant locked him outside in the freezing cold without a coat; sliced his palm with a broken broom and then delayed the healing process by putting her fingernail, a cigarette, and a pencil into the open wound; more than once took him to an abandoned house and left him there alone; made him kneel on uncooked rice; slapped him so hard that she gave him a black eye; and fractured his arm. The younger victim was scared to disclose the abuse because the defendant threatened to "do something worse" if he told the truth.
The older victim detailed similar instances of abuse and described seeing the defendant hurting the younger victim. The older victim explained that he was scared to tell anyone the truth because he thought the defendant might hit him and she repeatedly told him if he "sa[id] anything," she would call the Department of Children and Families (DCF) and have him and his brother taken away; and he waited until the abuse was discovered and the defendant had moved out before telling his mother about the abuse.
The doctor who treated the younger victim's arm testified that the boy's fracture could have resulted from a blunt force trauma or from someone twisting the arm.
In addition to the indictment for reckless endangerment of the younger victim, the defendant was indicted for intimidating the older victim, "a witness or potential witness ... at any stage of a criminal investigation, ... or other criminal proceeding of any type." See G. L. c. 268 § 13B (1) (cO (i), as amended through St. 2010, c. 256, § 120. At trial, the judge allowed the Commonwealth's oral motion to amend the indictment to include language from G. L. c. 268, § 13B (1) (c0 (ii), which applies to a "person who is or was aware of information that relate[s] to a violation of a criminal law . . . ."
Discussion.
When we review the sufficiency of the evidence, "[the] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). Guilt may be established by circumstantial evidence and "the inferences a jury may draw from the evidence 'need only be reasonable and possible and need not be necessary or inescapable.'" Commonwealth v. Linton, 456 Mass. 534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
1. Witness intimidation.
A conviction under G. L. c. 268, §13B (1) (c0 (i), requires that the evidence be sufficient to permit a rational juror to find, among other elements, that "a possible criminal violation [had] occurred that would trigger a criminal investigation or proceeding . . . [in which] the victim would likely be a witness or potential witness . . . ." Commonwealth v. Fragata, 480 Mass. 121, 126 (2018). "[A] 'potential witness at any stage of a criminal investigation' encompasses those 'who are likely to participate in a future investigation that has not yet begun.'" Commonwealth v. Garcia, 95 Mass.App.Ct. 1, 8 (2019), quoting Fragata, supra.
The older victim saw the defendant abuse the younger victim and was afraid to tell anyone because of the defendant's threats. See Commonwealth v. Potter, 39 Mass.App.Ct. 924, 926 (1995) ("[T]he essence of intimidation is fear"). A rational jury could have found that the defendant's conduct amounted to a "possible criminal violation." See Fragata, 480 Mass. at 125-126. The older victim, as both a victim and an eyewitness to the abuse, was thus a "potential witness" who was reasonably "likely to participate in a future investigation." See Fragata, supra; Garcia, 95 Mass.App.Ct. at 8.
To the extent that the defendant argues that there was insufficient evidence of intimidation as defined by the statute, see Fragata, 480 Mass. at 126, we are not swayed by the defendant's claims that she was trying to protect the older victim by telling him that DCF would take the brothers away if he disclosed the abuse. It was up to the jury to "evaluate the circumstances in which the statement[s] w[ere] made, including [their] timing, to determine whether the defendant in fact intended to intimidate the victim." Commonwealth v. Ruano, 87 Mass.App.Ct. 98, 100 (2015), quoting Commonwealth v. King, 69 Mass.App.Ct. 113, 120 (2007) .
The evidence supports conviction under both the originally indicted theory and the alternate theory advanced by the properly amended indictment. "Indictments may be amended as to form, but not as to substance." Garcia, 95 Mass.App.Ct. at 4. Because a conviction of the defendant under the original indictment would "'bar the subsequent prosecution of the defendant based on the amended indictment,' the amendment is considered to be a matter of form, not substance." Commonwealth v. Miranda, 441 Mass. 783, 788 n.8 (2004), quoting Commonwealth v. Knight, 437 Mass. 487, 492-493 (2002) .
And, because "the time or date of an offense is not an essential element of the crime" of witness intimidation, the Commonwealth had no obligation to prove the specific dates on which the defendant's intimidating conduct occurred. Commonwealth v. Lester, 70 Mass.App.Ct. 55, 70 n.16 (2007) (where time or date of offense is not essential element of crime, reversal not warranted unless prejudice is shown). See G. L. c. 277, § 35. The evidence established that the intimidation took place during the period alleged in the indictment (and longer). The defendant's position at trial was that she never struck or verbally abused the children. Absent a showing of prejudice by the defendant, any variance between the time alleged in the indictment and the proof at trial does not warrant reversal. See Lester, supra; Commonwealth v. Miozza, 67 Mass.App.Ct. 567, 572-573 (2006) (failure by Commonwealth to prove specific dates or times of offense was not grounds for reversal where time was not essential element of offense, defendant did not allege or show prejudice, and evidence permitted jury to find that at least one offense was perpetrated during period alleged in complaint).
2. Reckless endangerment of a child.
Conviction under G. L. c. 265, § 13L, for reckless endangerment of a child requires proof of three elements: (1) a child under age eighteen, (2) a substantial risk of serious bodily injury or sexual abuse, 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. Coggeshall, 473 Mass. 665, 667-668 (2016), citing Commonwealth v. Roderiques, 462 Mass. 415, 422 (2012). The defendant challenges the sufficiency of the evidence as to the last element only.
The necessary proof for conviction of reckless endangerment is "that [the defendant] was aware of and consciously disregarded a substantial and unjustifiable risk that [her] acts would result in serious bodily injury to a child, 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." Commonwealth v. Hendricks, 452 Mass. 97, 104 (2008). "The occurrence of an injury presupposes that a risk of the injury has been created," meaning that "the risk of injury has come to fruition in the form of an actual injury." Roderiques, 462 Mass. at 423. Given the younger victim's broken arm, the Commonwealth needed to prove only that the defendant engaged in wanton or reckless conduct.
Wanton or reckless conduct in the context of § 13L "requires proof of the defendant's subjective state of mind with respect to the risk involved." Coggeshall, 473 Mass. at 670. The jury heard that the defendant asked the younger victim, "Do you want me to break your arm?" The jury also heard evidence that the defendant broke his left arm by grabbing it "really hard" and moving it "all up and down and sideways" while twisting it, and that she continued manipulating the arm even after the victim made "ow noises" for "like five minutes" before the arm made a cracking noise. The defendant admitted at the hospital that she had been moving the victim's arm and heard a pop. See J_d. at 669-671. This evidence amply supports the third element of the reckless endangerment charge.
Judgments affirmed.