Opinion
10-P-1040
08-23-2011
COMMONWEALTH v. LEONARD MEDINA (and nine companion cases).
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
The defendants, Leonard and Leslie Medina, were convicted on a number of related indictments under G. L. c. 265, § 13J, as a result of injuries, including eighteen 'nonaccidental' fractures, and severe weight loss suffered by their infant daughter. On appeal, the defendants contend that the evidence against them was insufficient to support a guilty verdict on any of the indictments. We affirm.
Because the defendants share the same last name, we use their first names to avoid confusion.
Leonard and Leslie were each convicted on separate indictments charging wantonly or recklessly permitting substantial bodily injury to a child or wantonly or recklessly permitting another to commit assault and battery causing substantial bodily injury to a child. G. L. c. 265, § 13J(b). Leonard was also convicted on four indictments charging wantonly or recklessly permitting bodily injury to a child or wantonly or recklessly permitting another to commit assault and battery causing bodily injury to a child. Ibid. Similarly, Leslie was also convicted on four indictments charging wantonly or recklessly permitting bodily injury to a child or wantonly or recklessly permitting another to commit assault and battery causing bodily injury to a child. Ibid.
Facts. Viewed in the light most favorable to the Commonwealth, the evidence established the following facts. The defendants are a young married couple. At the time of the events giving rise to the convictions, they lived with Leslie's mother and their daughter, who was born in September, 2006. The defendants were the victim's sole caretakers. On April 2, 2007, the victim was examined by a nurse practitioner at a scheduled six-month well-baby check up. Because the victim was underweight, a follow up appointment was scheduled for May 15, 2007. On that date, the victim was examined by a pediatrician, who observed that the victim's gross motor skills had regressed and her weight had fallen to the point where she was in the fifth percentile of the average weight for babies at the same age. The doctor also noticed that the victim winced and cried when her legs were examined and looked 'thin, somewhat weak and frail.' Leslie told the doctor that the victim was consuming twenty to thirty ounces of formula and eating four ounces of baby food twice a day, a normal amount for a seven month old child.
Leslie's mother never picked the baby up on her own or took care of her because she was visually impaired. Additionally, she worked full time and often stayed with her own mother, who needed medical assistance. Moreover, both defendants worked part time. Leslie worked approximately five to ten hours a week at a retail store while Leonard worked approximately twenty-five hours a week at a different store.
At her one-month visit, the victim was in the fiftieth percentile for normal weight growth. At her two-month visit, she was in the seventy-fifth percentile. At her four-month visit, her weight was in the fiftieth percentile of normal weight. At her six-month visit, her weight had fallen to the fifteenth percentile.
Concerned about the victim's condition, the doctor ordered blood tests and x-rays, including a skeletal survey which was conducted on May 16, 2007. The x-rays disclosed that the victim had eighteen fractures in her hands, arms, legs, ribs, pelvis, and skull. The blood tests disclosed no conditions that would lead to susceptibility of fractures or weight loss. The victim was then admitted to Children's Hospital, where she was examined by the associate medical director of Children's Hospital child protection program, Dr. Celeste Wilson. Dr. Wilson testified that some of the fractures were 'metaphyseal,' which occur as a result of twisting or pulling of the extremity where the fracture is located. Dr. Wilson opined that the fractures were not caused by accident. During her five day stay at the hospital, the victim experienced a 'robust weight gain' which continued afterward while the victim lived with foster parents. The victim's pediatrician concluded that she had not been eating because she was in pain. Also, a follow-up skeletal survey performed on June 1, 2007, disclosed no new fractures.
An expert in pediatric radiology described the fractures as follows: Fracture 1: left metacarpal (bone between fingers and wrist); Fracture 2: left proximal humerus (upper arm bone); Fracture 3: left distal humerus (upper arm bone); Fracture 4: left distal radius (forearm bone); Fracture 5: left posterior 7th rib; Fracture 6: left posterior 6th rib; Fracture 7; left posterior 5th rib; Fracture 8: right posterior 1st rib; Fracture 9: pelvic fractures to left and right femurs; Fracture 10: sacrum (bones about tailbone); Fracture 11: left distal femur (thigh bone); Fracture 12: left femur (thigh bone); Fracture 13: right distal femur; Fracture 14: right tibia, near knee (lower leg bone); Fracture 15: right distal tibia, near ankle (lower leg bone); Fracture 16: left proximal tibia, near knee (lower leg one); Fracture 17: left distal tibia (lower leg bone); Fracture 18: parietal skull bone, right side.
The Commonwealth also presented evidence from a pediatric orthopedic surgeon, who explained that because the victim's hip fractures were not treated promptly, the injuries had not healed correctly and might require corrective surgery. The surgeon opined that the victim will be predisposed to pain and arthritis in her hips as a result of the fractures.
Both defendants were interviewed by the police and videotaped recordings of the interviews were introduced at trial. During her interview, Leslie stated that, after Easter, she called the pediatrician's office 'every day' to report that the victim was not eating. The jury also heard evidence that Leslie told Dr. Wilson, on May 18, 2007, that she had called the pediatrician's office -- after the victim's six-month check up in April -- to report that the victim was cranky and unable to bear weight. However, the victim's electronic medical record from the pediatrician's office disclosed no telephone calls between January 29, 2007, and May 10, 2007, when one of the defendants called twice, first, to ask about giving the victim cereal, and second, to inquire about piercing the victim's ears.
During his interview, Leonard acknowledged some 'tension' in the household stemming from the fact that Leslie had dropped out of nursing school when she became pregnant. As to Leslie's relationship with the victim, Leonard stated that she was a good mother, but that he usually called or sent Leslie a text message while working his 6:00 A. M. to 11:00 A. M. shift because sometimes Leslie would sleep 'a little too much.'
Discussion. 'When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Commonwealth v. Laro, 68 Mass. App. Ct. 556, 558 (2007), quoting from Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999). See Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 630 (2010). Rather, the relevant '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 from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Furthermore, '[c]ircumstantial evidence is competent evidence to establish guilt.' Commonwealth v. Rojas, 388 Mass. App. Ct. 626, 629 (1983). Inferences drawn from circumstantial evidence need only be reasonable and possible. They need not be necessary or inescapable. Commonwealth v. Roman, 427 Mass. 1006, 1007 (1998).
The basis for the defendants' convictions of wantonly or recklessly permitting substantial bodily injury to a child in violation of G. L. c. 265, § 13J(b), was the pelvic fractures to the left and right femurs (fracture number 9). In the light most favorable to the Commonwealth, the jury were entitled to conclude that the defendants had 'sole care and custody' of the victim, who was under the age of fourteen. The jury could also reasonably conclude that the victim suffered 'substantial bodily injury' by reason of 'impairment of a body member or limb' based on the expert testimony that the hip fractures predisposed the victim to developing pain and arthritis.
Leslie conceded the element of 'substantial bodily injury.'
Finally, the jury could infer that the defendants acted 'wantonly' or 'recklessly' based on their failure to seek timely medical attention for the victim. See Commonwealth v. Robinson, 74 Mass. App. Ct. 752, 758 (2009). In addition to severe weight loss, the evidence established that the eighteen fractures were inflicted on more than one occasion on most of the victim's body. The various experts opined that the fractures were nonaccidental.
It matters not, as the defendants argue, that they brought the victim to her six-month well-baby check up and to the follow-up appointment one month later. The jury could reasonably infer that the victim's weight loss would have alerted a reasonable person that the victim was in need of additional medical care, particularly in light of the fact that the victim continued to lose weight between the April and May medical visits and exhibited a marked regression in her motor skills. Contrast Commonwealth v. Michaud, 389 Mass. 491, 498 (1988) (no evidence showing that victim's weight loss was a process of steady deterioration rather than a sudden event over a short time span). Furthermore, at least some of the fractures had been inflicted during that one month interval.
Dr. Paul Kleinman, a board-certified radiologist and expert in pediatric radiology, concluded that the metacarpal fractures were one to three weeks old. The fracture of the left radius was two to four weeks old. The fractures of the left distal humerus were two weeks to two months old. The fractures to the sacrum, skull, and left posterior seventh rib could not be dated.
Nor is the absence of noticeable bruising significant because, as Leslie herself acknowledged, the victim was not eating well, was intermittently cranky during diaper changes, and would not bear weight on her legs. These facts alone support the reasonable inference that the defendants knew or should have known that the victim was being injured in some way and needed medical attention so as to avoid 'substantial bodily injury.'
In addition, the jury's verdicts were supported by consciousness of guilt evidence. The jury could reasonably believe that Leslie's statements to the pediatrician regarding the amount of food the victim was eating were false. Similarly, the jury could consider false Leslie's statements that she had contacted the pediatrician's office between April and May, 2007. As for Leonard, the jury could consider his attempt to blame Leslie's mother for the victim's injuries as indicative of a guilty conscience. When asked by police who could have caused the victim's injuries, Leonard's statements that he did not want to 'point fingers' but would look toward Leslie's mother could have reasonably supported his guilt, since the evidence that Leslie's mother never took care of the victim was essentially uncontradicted. Furthermore, Leonard mentioned several times during his interview that Leslie's mother was often angry with him and made him seem 'like a bum.'
As to the remaining convictions on the indictments charging each defendant separately with wantonly or recklessly permitting assault and battery on a child with bodily injury, we likewise conclude that the judge correctly denied the defendants' motions for required findings of not guilty. The bases of these convictions were specific additional fractures, all of which were amply supported by the evidence.
Judgments affirmed.
By the Court (Trainor, Brown & Vuono, JJ.),