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14-P-1796                                             Appeals Court

                  COMMONWEALTH vs. HEATHER DRAGOTTA
                       (and one companion case1).


                             No. 14-P-1796.

         Essex.      January 12, 2016. - February 25, 2016.

            Present:    Kafker, C.J., Cohen, & Blake, JJ.


Assault and Battery. Wanton or Reckless Conduct. Parent and
     Child, Duty to prevent harm. Child Abuse. Practice,
     Criminal, Hearsay, Witness. Evidence, Expert opinion,
     Hearsay. Witness, Expert.



     Indictments found and returned in the Superior Court
Department on October 1, 2010.

    The cases were heard by Richard E. Welch, III, J.


     Jacob B. Stone for Steven Amos.
     Patrick Levin, Committee for Public Counsel Services, for
Heather Dragotta.
     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.


    KAFKER, C.J.       After a joint jury-waived trial in the

Superior Court, defendant Heather Dragotta was convicted of


    1
        The companion case is against Steven Amos.
                                                                    2


wantonly or recklessly permitting another to commit an assault

and battery upon her infant daughter causing bodily injury (head

injury), and defendant Steven Amos was convicted on three

indictments charging assault and battery upon the same child

causing bodily injury (two rib fractures, head injury, and arm

fracture).2   On appeal, Dragotta and Amos both claim that the

evidence was insufficient to sustain their convictions, and Amos

adds that the expert testimony exceeded the permitted scope of

such evidence.

     Sufficiency of the evidence.     Viewing the evidence in the

light most favorable to the Commonwealth, the judge was

warranted in finding the following.     E.g., Commonwealth v.

Latimore, 378 Mass. 671, 677-678 (1979).

     The victim was born on April 27, 2010, without any

complications.   Dragotta is the victim's mother.    Amos was

Dragotta's boyfriend but not the father of the child.     On the

evening of June 3, 2010, Dragotta and Amos brought the five and

one-half week old infant to the Lawrence General Hospital

emergency room because she was not using her right arm and cried

when it was touched.   The X-rays taken at the hospital showed


     2
       The judge acquitted Dragotta of two counts of permitting
an assault and battery causing substantial bodily injury related
to the rib fractures and the arm fracture. Before trial began,
Dragotta's motion to dismiss three counts of assault and battery
was allowed, as was so much of Amos's motion to dismiss that
related to the three counts of permitting bodily injury.
                                                                     3


that not only was the victim's right arm fractured, but that her

left arm was bowing.    The fracture of the right arm was a

displaced transverse fracture, meaning that the fracture went

entirely across the bone and the two ends were slightly offset.

These findings prompted the hospital to file a report of abuse

with the Department of Children and Families (DCF), pursuant to

G. L. c. 119, § 51A (51A report).    The victim was transferred to

Boston Children's Hospital, and Dr. Celeste Wilson, the medical

director of the child protective unit, was sought for

consultation.

       The next day, Wilson examined the victim and spoke to

Dragotta and Amos about the cause of the injuries.    Dragotta

told Wilson that she returned home on June 3 with the victim

after visiting her relatives in New Hampshire, and she gave the

baby to Amos while she went into the kitchen.    Shortly

thereafter, Dragotta noticed the victim was not using her right

arm.

       Because of the unexplained injury to the victim's arm,

Wilson ordered a full skeletal survey (X-rays), a computerized

tomography scan (CT scan), and magnetic resonance imaging (MRI)

of the victim's head.    The X-rays, as the Commonwealth's expert,
                                                                    4


Dr. Paul Kleinman,3 testified, revealed seven rib fractures near

the spine, six rib fractures on the side and the front of the

ribs, one fracture of the right leg, five fractures of the left

leg, and fractures of the right and left arms.   He testified

that rib fractures indicated the child's chest had been

compressed with a force equivalent to that which occurs in a

motor vehicle accident.   Kleinman explained that rib fractures

are "very very uncommon in infants," in part because a baby's

rib cage is flexible; rather, they are "overwhelmingly seen in

children who have been victims of abuse."   The location and

nature of the leg fractures were also very uncommon and would

have occurred from significant twisting and pulling forces that

are delivered to that extremity.   According to Kleinman, the leg

fractures were highly specific for abuse.   While the right arm

fracture was the single injury that an active child might incur,

neither that fracture nor the fracture to the left arm was

typical for a five and one-half week old infant who is not

mobile.

     Kleinman described the fractures as being of various ages,

with the arm fracture being the most recent and the two

fractures to the lateral ribs being more recent than the other

fractures, having likely been incurred somewhere between seven

     3
       At the time of trial, Dr. Paul Kleinman was a staff
pediatric radiologist and director of the division of
musculoskeletal imaging at Boston Children's Hospital.
                                                                    5


days and two to four weeks earlier.4   In Kleinman's opinion, all

of the victim's fractures were caused by inflicted injury.

     Wilson reviewed the test conducted on the victim's head and

testified that there was a subdural hematoma or bleeding on the

brain.   Wilson gave an opinion that the injury was the result of

inflicted trauma from an acceleration or deceleration motion to

the head.   Two theories account for such an injury, either the

head goes back and forth in such a motion as to create a

whiplash or banging of the brain against the skull, or the head

may accelerate into a solid object causing the skull to stop

when it strikes the object while the brain continues going

forward.

     Wilson further opined that the victim would have been in

pain when the fractures were inflicted, and she agreed that the

arm injury was "acute."   Regarding the rib and leg fractures,

the victim would have been "fretful," "irritable," or "fussy"

when she was lifted or raised by others, or when her extremities

moved.   Based on the "entire picture," Wilson formed the opinion

and testified that someone had inflicted injuries on this child

on more than one occasion.


     4
       The fracture to the two lateral ribs form the basis of one
of Amos's three convictions. Because Dragotta and Amos lived in
New Hampshire for two weeks of the child's life, more charges
that included other injuries may not have been brought because
the other injuries could not be dated to ensure they occurred in
Massachusetts.
                                                                      6


    Dragotta and Amos were first asked about these injuries on

Friday afternoon, June 4, 2010, by Detective Daniel Cronin and

by Amy Silverio, the DCF worker assigned to the case.

Interviewed alone, Dragotta explained that her infant daughter's

health was unremarkable until she was about two weeks old, when

she developed some gassiness and could be fussy at times.      She

told her pediatrician about this at the well-being visit on May

11, 2010, and according to Dragotta, he recommended gently

moving the infant's legs in a bicycling motion to relieve the

gas and demonstrated the maneuver for her.     Dragotta showed Amos

the maneuver when she got home.

    When asked how she thought the victim could have sustained

her injuries, Dragotta became tearful and admitted that a

maneuver Amos used to help the victim relieve gas could have

broken her ribs.   Dragotta described the maneuver as one in

which Amos would take the victim's "legs and push them towards

her stomach and push down to relieve some gas or stool."

Dragotta said Amos did this maneuver "pretty often" and

"consistently for about one week."     She acknowledged that the

victim would cry when Amos did this.    On one occasion, the

victim made a particularly disturbing sound that prompted

Dragotta to tell Amos not to do it anymore; she believed he

heeded her request.
                                                                    7


    Dragotta thought the injury to the victim's head and arm

were new.   She suspected that her sister, who had briefly

watched the victim during her visit to New Hampshire on June 3,

may have done something.   Dragotta told Silverio and Cronin that

her sister suffered from depression and had a "couple OUI's

[driving under the influence of alcohol]."   Dragotta was

informed that DCF would be taking custody of the victim and was

visibly upset when she left the interview room and passed Amos.

    Upon entering the interview room, Amos blurted out, "If I

tell you I hurt her, can she get her baby back?"    Cronin

admonished him not to lie to protect someone else.    Amos

immediately volunteered that he could explain the rib fractures

because he was "positive" he had broken her ribs.     He

demonstrated how he put his hands behind the victim's knees and

pushed forcefully up and into the victim's abdomen.    He said

this technique was something he had developed on his own; he had

not been shown how to do it.   He acknowledged using a

considerable amount of force and that he "pushed hard all the

time."

    When Amos did this, he said the victim would grunt, cry,

and defecate.   According to Amos, Dragotta had seen him do it

three or four times.   He said that the maneuver "relieved" the

victim for two to three hours and that he was doing it to help

Dragotta, who was stressed "paper thin."   He admitted being
                                                                     8


concerned that he was hurting the victim and that he was pushing

too hard.

    About a week before the interview, around May 28, Amos

thought the technique was no longer working because nothing was

coming out of the victim's buttocks.    He stopped doing the

technique because he was afraid he was causing damage to the

victim's internal organs and her ability to go to the bathroom

on her own.

    Amos said he could also explain the head injury.    During

that Memorial Day weekend, about the time he stopped doing the

knee-to-stomach maneuver, Amos used the victim "like a guitar,"

dipping and spinning her in the living room while he listened to

music and Dragotta took a shower.    He said he had her in one arm

with a hand on her buttocks and two fingers around her neck

until he made a forward motion and removed his two fingers from

her neck leaving her head unsupported and her head came crashing

down on his collarbone.    The victim was still too young to be

able to hold her head up, a fact Amos must have known as her

caregiver.    The victim cried for a couple of minutes and he saw

bruising on her ear.

    Although Amos initially denied having knowledge of what

could have caused the injury to the victim's right arm (which

prompted the visit to the emergency room), he admitted at the

end of the interview that he may have grabbed her arm too
                                                                  9


tightly when she was lying on his chest on the evening of June

3, 2010.

     The following Monday, June 7, 2010, Silverio and Cronin

interviewed Dragotta again, at her home.    Her mother, Kim

Dragotta, was with her.    Dragotta admitted seeing the bruised

ear during Memorial Day weekend and some bleeding in the

victim's eye.5   At the time, Dragotta asked Amos about it, and he

told her about the infant's head striking his collarbone while

he was dancing with her.    Dragotta recognized the

inappropriateness of Amos's behavior and acknowledged to

Silverio and Cronin that Amos had no experience with infants.

     Discussion.   1.   Sufficiency of the evidence.   Dragotta

argues on appeal that the evidence was insufficient to support

her conviction of wantonly or recklessly permitting Amos to

commit an assault and battery upon her child causing a bodily

injury, namely, the head injury.6 "Wanton or reckless conduct may


     5
       Wilson had also noticed a red spot in the victim's eye
during her examination.
     6
       Dragotta was convicted of only a single count that alleged
she "wantonly or recklessly permitted bodily injury to such
child or wantonly and recklessly permitted another to commit an
assault and battery upon such child, which assault and battery
caused bodily injury, to wit: interhemispheric subdural
hematoma" pursuant to G. L. c. 265, § 13J(b). "[T]he elements
of § 13J(b), fourth par., are (i) a child under fourteen; (ii)
in care and custody; (iii) a substantial bodily injury; (iv) the
defendant wantonly or recklessly permitted this substantial
bodily injury, or wantonly or recklessly permitted another to
commit an assault and battery on the child causing substantial
                                                                     10


occur by act or omission where there is a duty to act and the

failure to so act provides a 'high degree of likelihood that

substantial harm will result to another.'"     Commonwealth v.

Robinson, 74 Mass. App. Ct. 752, 759 (2009), quoting from

Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).     See, e.g.,

Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012).     The wanton

or reckless conduct here was Dragotta's continuing to allow Amos

to care for the infant knowing that he did not know how to do

so, that he had not followed instructions in the past, and that

he had repeatedly and forcibly mishandled the child in such a

manner as to cause her substantial harm.

    The evidence that we consider under the Latimore7 standard

established that Dragotta regularly observed Amos push the five

and one-half week old victim's knees into her chest with such

force that she defecated.    This was not at all like the gentle

bicycling maneuver that Dragotta had been taught, and which she

had explained to Amos.     The force she saw applied was described

by the expert as similar to that typically associated with a

motor vehicle collision.    The force here resulted in multiple

fractures of the ribs and fractures of the right and left leg.

In addition, the fractures were in various stages of healing


bodily injury." Commonwealth v. Roderiques, 462 Mass. 415, 422
(2012). See Commonwealth v. Robinson, 74 Mass. App. Ct. 752,
757 (2009).
    7
        See Latimore, 378 Mass. at 677-678.
                                                                   11


confirming that this technique had been used on multiple

occasions.   These fractures would have caused the child to be

irritable and fussy, and while that alone would not be

sufficient to cause a parent concern, in combination with having

observed Amos's maneuver, it should have plainly alerted

Dragotta to the high degree of likelihood that the victim was

being injured by Amos.

    Finally, Dragotta's tearful response during her interview

with Silverio and Cronin, when she revealed that Amos's

technique for relieving gas may have broken the victim's ribs,

is direct proof that she knew the maneuver exposed the victim to

bodily injury.   Even if the judge credited Dragotta's testimony

that she eventually told Amos to stop using this much force to

compel the infant to pass gas and defecate, she nonetheless

continued to allow him to provide unsupervised care for the

child despite her knowledge that he obviously did not know how

to care for the child safely, as later confirmed by the child's

subsequent, substantial injuries, including the head injury for

which Dragotta was held responsible for recklessly permitting.

    In these circumstances, the judge could find that Dragotta

knew or should have known that there was a substantial risk that

Amos would injure the child if she remained in his unsupervised

care.   See Commonwealth v. Garcia, 47 Mass. App. Ct. 419, 422

(1999) (even if there were no direct evidence that parents of
                                                                    12


thirty-three day old infant were aware of multiple rib,

clavicle, and leg fractures, and a skull fracture, evidence of

unexplained bruises and recognition that infant was in pain was

sufficient circumstantial proof to conclude that "an ordinary

person in the same circumstances would have realized the gravity

of the danger").   See also Commonwealth v. Roderiques, 462 Mass.

415, 427 (2012) (evidence showed that defendant knew assaults

were occurring but wantonly and recklessly failed to intervene).

     Similarly unavailing is Amos's claim that the evidence was

insufficient to support his convictions on three theories.     He

first claims that the injuries occurred when he was acting in

loco parentis and attempting to care for the victim.     The

excessive, unreasonable force Amos used breaking the infant's

ribs while trying to cause her to pass gas and defecate clearly

exceeded any imaginable loco parentis rights.8   See Garcia,

supra.   His desire to amuse and interact with the infant

likewise did not encompass a right to spin and dip her

recklessly "like a guitar."   See ibid.   Finally, there was no

justification for the transverse fracture of the infant's arm.

     8
       In making this argument, the defendant cites Commonwealth
v. Dorvil, 472 Mass. 1 (2015), a parental discipline case.
While it is clear that the defendant was not disciplining the
infant, and he properly makes no such claim, we note that the
force he used was so excessive that it falls beyond that
permitted for discipline. See id. at 12 (a parent may not
discipline with force that causes or creates "a substantial risk
of causing . . . physical harm [beyond fleeting pain or minor
transient marks]").
                                                                    13


    Next, Amos argues that proof of recklessness is absent

because he was unaware that his conduct was likely to cause the

victim substantial harm.   The claim belies the recognition in

his statement to Silverio and Cronin that the pushing maneuver

may have been causing organ damage, that using the infant as a

guitar and letting go of her head so that it crashed on his

shoulder may have caused the brain bleed, and that his grabbing

of the victim's arm so tightly may have broken it.    Moreover,

proof of recklessness only requires that the defendant intended

to do the reckless act, not that he intended a specific result.

See Welansky, 316 Mass. at 398-399; Commonwealth v. Macey, 47

Mass. App. Ct. 42, 48 (1999).   All that is required is that "an

ordinary person in the same circumstances would have realized

the gravity of the danger."   Garcia, supra at 422.   Here, there

is no question that there was sufficient evidence to support a

finding that Amos intended the acts that caused the multiple

fractures and subdural hematoma.   We are also convinced on this

evidence that an ordinary person in the same circumstances would

have realized the substantial risk of injury to which he was

subjecting an infant by engaging in such conduct.     See ibid.

    Amos's third contention, that the Commonwealth was required

to prove that Amos had exclusive control of the victim, fails to

recognize that viewing the evidence and the inferences in the

light most favorable to the Commonwealth was sufficient to show
                                                                     14


that Amos had control of the victim and that he inflicted the

injuries.    See generally Macey, supra.   The Commonwealth need

not "exclude all possible exculpatory interpretations of the

evidence."   Ibid., quoting from Commonwealth v. Russell, 46

Mass. App. Ct. 307, 310 (1999).

    2.   Wilson's expert testimony.9    Next, Amos argues that

Wilson improperly testified to a neuroradiologist's opinion that

the subdural hematoma was acute, thereby depriving him of the

right to cross-examine the neuroradiologist.     In giving her own

independent opinion, Wilson referenced a neuroradiologist with

whom she had consulted in reaching her opinion and that his

"impression" was that the injury had an "acuity to it" that made

it unlikely to date back to birth.     Wilson made clear, however,

that she was capable of reviewing the scans of the victim's

head, that she had done so in this case, and that she had

reached her own conclusion that the injury was acute.     Because

Wilson did not testify to the opinion of the neuroradiologist

but merely included the neuroradiologist's impressions as

material upon which she had relied in reaching her own opinion,

the defendant was not deprived of his rights under the Sixth


    9
       Amos claims that he objected to the "scope" of Wilson's
testimony but without citation to the record. The only
objection Amos lodged during Wilson's direct examination
challenged her ability to interpret and testify regarding the CT
scan and MRI results. The objection was overruled, and Wilson
testified that she could read such scans.
                                                                  15


Amendment to the United States Constitution.   Furthermore, he

was able to cross-examine Wilson on her testimony and the basis

for her opinion.   See Commonwealth v. Barbosa, 457 Mass. 773,

785 (2010); Commonwealth v. Greineder, 464 Mass. 580, 593-594

(2013).   See also Crowe v. Marchand, 506 F.3d 13, 17-18 (1st

Cir. 2007) (there is a custom and practice in the medical

profession that doctors routinely rely on observations reported

by other doctors, and it is unrealistic to expect a physician,

as a condition precedent to offering an opinion, to have

performed every test, procedure, and examination himself or

herself); Mass. G. Evid. § 703 (2015).

     Amos adds to this argument that Wilson's testimony

regarding the neuroradiologist's impressions, as well as her

recitation of the details underlying her differential diagnosis,

ruling out other causes of the injury, violated the prohibition

against an expert presenting on direct examination the specific

information on which she relied.   See Department of Youth Servs.

v. A Juvenile, 398 Mass. 516, 527-528 (1986); Greineder, supra

at 594; Commonwealth v. Jones, 472 Mass. 707, 713-715 (2015).10


     10
       Our common-law evidentiary rules permit expert opinion
testimony, even if based on facts and data not in evidence, as
this testimony violates neither the right of confrontation nor
the prohibition against hearsay if the facts and data "are
independently admissible and are a permissible basis for an
expert to consider in formulating an opinion," provided, first,
that the expert refrain on direct examination from presenting
the specific information on which he or she relied and, second,
                                                                  16


We assume without deciding that the admission of the challenged

evidence was error.   Because the defendant did not object, we

review only to determine whether the error, if any, created a

substantial risk of a miscarriage of justice.11

     Amos presented a defense grounded on the theory that the

victim's bones were not healthy, which was undetectable to him

or Dragotta, and therefore, his innocent actions would not have

caused injury to a healthy child.   In support of this theory,

Amos presented an expert who gave an opinion that the victim

suffered from rickets or, alternatively, a copper deficiency,

that caused the bones to weaken and break.   A second expert

opined that the victim's increased platelet count generated from

the healing fractures could have caused the subdural hematoma.

A high platelet count will make it more likely blood will clot,

and in this case, that clot may have expanded in the small

collection of veins in the skull causing a small tear and bleed.



that the expert witness may be meaningfully cross-examined about
the reliability of the underlying data. See Greineder, supra at
583, 595; Jones, supra, citing Department of Youth Servs.,
supra.
     11
        Contrary to the defendant's contention, the challenged
evidence does not constitute testimonial evidence subject to the
confrontation clause, because Wilson was not parroting the
opinions of others, but was providing the foundational basis for
her opinion that was independently derived. Regardless of this
distinction, the same standard of review generally applies to
unobjected to error whether or not it is constitutional in
nature. See Commonwealth v. Vasquez, 456 Mass. 350, 358-360
(2010).
                                                                    17


    None of the challenged testimony undercut the defense

theory.   In particular, one expert agreed with Wilson that the

subdural hematoma was acute, eliminating any risk of prejudice

from Wilson having conveyed the same impression after consulting

with the neuroradiologist.   Moreover, the defense was able to

elicit testimony from Wilson that bolstered its case, namely,

that the victim did not exhibit signs typically associated with

a head injury from an acceleration or deceleration event, and

that Wilson failed to run a full set of tests to determine the

health of the victim's bones.   In these circumstances, the

admission of the challenged evidence did not create a

substantial risk of a miscarriage of justice.

    Finally, this was a bench trial.    "[I]t is presumed that

the judge as trier of fact applies correct legal principals."

Commonwealth v. Milo M., 433 Mass. 149, 152 (2001), quoting from

Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992).

"[T]he judge will understand the limited reason for the

disclosure of the underlying inadmissible information and will

not rely on that information for any improper purpose."

Williams v. Illinois, 132 S. Ct. 2221, 2235 (2012).     "In bench

trials, judges routinely hear inadmissible evidence that they

are presumed to ignore when making decisions."   Harris v.

Rivera, 454 U.S. 339, 346 (1981).
                                                               18


    We conclude the judge here was not improperly swayed by

having some of this information introduced on direct rather than

through cross-examination.

                                   Judgments affirmed.
