Opinion
No. 12–P–243.
2013-01-25
COMMONWEALTH v. Jamie COMEAU.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
There was a four to five day time period between the day the two month old infant for whom the defendant cared was removed from the home and placed in foster care, and the diagnosis by an examining physician of inflicted injury. The doctor testified at trial that the infant's injuries, which included eight rib fractures, were suffered from three to fourteen days earlier. On appeal, the defendant argues that there is insufficient evidence to prove his guilt of assault and battery on a child resulting in bodily injury because the evidence was in equipoise as to who battered the child. See Berry v. Commonwealth, 393 Mass. 793, 796 (1985). We affirm.
Based on the evidence viewed in the light most favorable to the Commonwealth, id. at 794, the jury could have found the following facts. The defendant was the caretaker of the infant eighty percent of the time. At some point earlier in the year, a family member saw the defendant holding the child at arm's length with both hands around her ribs. He clenched his hands, and held the baby too tightly. The baby was crying. The defendant was also seen laying the baby on the floor, pushing down on her stomach, saying, “There's no shit in there, you little bitch.” The doctor testified that the infant's rib fractures were consistent with holding the child under the armpits and squeezing the infant's rib cage, or pressing the rib cage from front to back with force greater than that involved in normal child care. The infant also had injuries consistent with edema, or swelling of the brain, injuries which the doctor opined often accompanied rib injuries in cases where babies were held tightly under the armpits and shaken. There was evidence that the child fussed and cried, behavior that was consistent with her injuries.
Thus, there was evidence tending to show that the defendant held the baby in such a way as to cause these injuries, and that he had motive to do so: that is, he harbored ill will towards the child. See Commonwealth v. Torres, 442 Mass. 554, 563–567 (2004); Commonwealth v. Winfield, 76 Mass.App.Ct. 716, 722 (2010). There was no evidence that the foster parents harmed the child or were inclined to do so. Nor was there evidence that the infant was abused by other household members. The mother, who was in methadone treatment for addiction, spent a great deal of time sleeping and had little attachment to or interaction with the child. The step-grandmother, in whose house the father, mother, and child lived, was sufficiently concerned about the child's welfare to call the Department of Social Services. It is this call that resulted in the removal of the child. While other adults in the home had the opportunity to inflict injury on the baby, “it was the defendant, and not [others] who had displayed hostility to the child,” and who had been seen holding the child in a manner consistent with the injuries inflicted. Torres, supra. The evidence therefore did not, as the defendant argues, tend “equally to sustain either of two inconsistent propositions.” Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). A rational trier of fact could have found that even though others had the opportunity to harm the infant, it was the defendant who was “disposed to do so” and who caused the injuries. Torres, supra at 564 & 566; Winfield, supra.
Now named the Department of Children and Families.
Judgment affirmed.