Opinion
No. 12–P–1134.
2013-03-27
COMMONWEALTH v. Joseph A. MARCANGELO.
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a two-day jury trial in District Court, the defendant was convicted of the following criminal offenses: (1) operating a motor vehicle after his license to operate had been revoked by reason of having been found to be a habitual traffic offender pursuant to G.L. c. 90, § 22F (G.L. c. 90, § 23), (2) failure to stop for police (G.L. c. 90, § 25D), (3) negligent operation of a motor vehicle (G.L. c. 90, § 24[2][ a ] ), and (4) reckless endangerment of a child (G.L. c. 265, § 13L). The defendant appeals only from his conviction of reckless endangerment of a child. We affirm.
Sufficiency of the evidence. On appeal, the defendant argues that the Commonwealth presented insufficient evidence to permit a rational juror to conclude beyond a reasonable doubt that his actions rose to the level of wanton or reckless behavior required for a conviction of reckless endangerment of a child. In reviewing the sufficiency of the evidence, this court considers “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged....” Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).
The crime of reckless endangerment of a child has the following elements: “(i) a child under eighteen; (ii) a substantial risk of serious bodily injury or sexual abuse; [and] (iii) the defendant wantonly or recklessly engaged in conduct that created this substantial risk, or failed to take reasonable steps to alleviate such risk where there is a duty to act.” Commonwealth v. Roderiques, 462 Mass. 415, 422 (2012). In this case, the defendant challenges only the sufficiency of the evidence to prove the third element of the charged crime.
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’ “ (footnote omitted). 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].’ “ Ibid., quoting from Commonwealth v. Levesque, supra at 452. The conduct at issue must create a risk of serious bodily injury that is a “good deal more than a probability, and its disregard substantially more than negligence.” Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008). Finally, “the harm at risk must be of a very serious nature, defined as injury ‘which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death.’ “ Ibid., quoting from G.L. c. 265, § 13L.
At trial, the Commonwealth called Officer Nicholson of the Beverly police department as its only witness. Officer Nicholson testified that on the day in question there had been a large snowstorm. That night, while he was on duty, it continued to snow and there was snow and ice accumulation on the roads. As he drove through an intersection, Officer Nicholson observed the defendant run a red light and almost crash into the officer's car. Officer Nicholson then activated his emergency lights and began to trail the defendant. The defendant made a few turns, and after following him, Officer Nicholson determined that the defendant would not stop his car and, accordingly he activated his siren. Officer Nicholson testified that the defendant was traveling roughly thirty to thirty-five miles per hour, but that given the snowy conditions, the defendant could not have driven much faster. During the ensuing pursuit, the defendant ran another red light, drove the wrong way down a one-way street, drove on the wrong side of the street, and drove onto a sidewalk on a street where there were several people shoveling snow. Officer Nicholson testified that if he had not glimpsed the defendant run the red light, the defendant's vehicle would have collided perpendicularly with his police cruiser. The defendant abruptly parked his car on the sidewalk and then fled the area. Officer Nicholson observed the defendant run from his car. Officer Nicholson “made a decision ... to allow [the defendant] to run” while he remained with the two passengers in the defendant's car—a woman and a small child. Officer Nicholson provided the defendant's name and description to dispatch, and, eventually, the Beverly police department located and apprehended the defendant.
Given Officer Nicholson's testimony as to the defendant's evasive driving, multiple traffic violations, and disregard for the treacherous weather conditions, while operating a motor vehicle with a young child as a passenger, we conclude that a reasonable jury could infer that the defendant wantonly or recklessly engaged in conduct that created a substantial risk of bodily injury to a child. See Commonwealth v. Hendricks, supra at 104–105 (defendant convicted of reckless endangerment of a child where he fled from the police in a high-speed chase with his child in the car). See also Commonwealth v. Figueroa, 83 Mass.App.Ct. at 259–260.
Judgments affirmed.