Opinion
18-P-1528
09-30-2019
COMMONWEALTH v. Eddylka RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
RESCRIPT
The defendant, Eddylka Rodriguez, appeals from her conviction, after a jury-waived trial in the Superior Court, for reckless endangerment of children, G. L. c. 265, § 13L. Concluding that there was insufficient evidence that the defendant consciously disregarded a substantial and unjustifiable risk of serious bodily injury to an infant and a child who was approximately five to seven years old, we reverse.
1. Standard of review. "[W]e consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547, 69 N.E.3d 993 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303, 58 N.E.3d 1070 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713, 1 N.E.3d 762 (2014). "A conviction cannot stand, however, if it is based entirely on conjecture or speculation." Commonwealth v. Ayala, 481 Mass. 46, 51, 112 N.E.3d 239 (2018).
2. Substantial risk. "To prove reckless endangerment of a child, the Commonwealth must prove ‘(1) a child under age eighteen, (2) a substantial risk of a 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. Hardy, 482 Mass. 416, 421, 123 N.E.3d 773 (2019), quoting Commonwealth v. Coggeshall, 473 Mass. 665, 667-668, 46 N.E.3d 19 (2016). "[P]ermanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death" satisfy the statutory definition of "serious bodily injury." G. L. c. 265, § 13L. The evidence must support that the risk of injury is "a good deal more than a possibility, and its disregard substantially more than negligence." Commonwealth v. Santos, 94 Mass. App. Ct. 558, 560-561, 116 N.E.3d 41 (2018), quoting Commonwealth v. Hendricks, 452 Mass. 97, 103, 891 N.E.2d 209 (2008).
The Commonwealth failed to prove that the children were at a substantial risk of serious bodily injury from either the residue within a closed scale on the kitchen table or from the cocaine located on top of a cupboard above the refrigerator. Regarding the residue in the scale, there was no evidence that the residue constituted a sufficient quantity to cause a serious bodily injury to either child. "Where there is a lack of reliable general knowledge regarding the relevant effects of a drug, expert testimony is required to show that connection." Commonwealth v. Sherman, 481 Mass. 464, 477, 116 N.E.3d 597 (2019). Although it can hardly be gainsaid that consumption of a significant amount of cocaine by a child would be substantially harmful, the mere illegality of cocaine residue does not establish its harmful effects. Further, there was no testimony that either child handled the scale, showed any interest in it, or that the scale was particularly attractive to children. Consequently, the presence of residue in the scale in the kitchen does "not rise to the level of wanton or reckless conduct creating a substantial risk of serious bodily injury to the child[ren]." Santos, 94 Mass. App. Ct. at 561, 116 N.E.3d 41.
Additionally, the evidence did not establish that either the older child or the infant would be likely to access the cocaine in the kitchen cupboard. An officer, with an estimated height of five feet, nine or ten inches, discovered cocaine on top of the cupboard above the refrigerator by stepping on a chair or lifting himself up onto the counter. Another officer estimated that the older child was "five or six, maybe seven years old." Even assuming the older child had the ability physically to reach the cupboard, the evidence provided no reason to believe that such access was likely enough that the contraband posed a "high degree of likelihood that substantial harm would result." Commonwealth v. Dragotta, 476 Mass. 680, 689, 71 N.E.3d 502 (2017).
3. Conclusion. In the absence of evidence that the defendant's conduct or failure to act exposed the children to a risk of substantial serious bodily injury, the criminal conviction of reckless endangerment cannot stand. See Hardy, 482 Mass. at 425, 123 N.E.3d 773. Accordingly, the judgment is reversed, the finding is set aside, and the case is remanded for the entry of a required finding of not guilty.
So ordered.