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14-P-1464                                              Appeals Court

                  COMMONWEALTH vs. JULIE LEONARD
                      (and a companion case1).


                            No. 14-P-1464.

         Essex.     February 11, 2016. - September 9, 2016.

             Present:   Kafker, C.J., Rubin, & Agnes, JJ.


Assault and Battery by Means of a Dangerous Weapon. Dangerous
     Weapon. Reckless Endangerment of a Child. Practice,
     Criminal, Complaint, Dismissal. Probable Cause.


     Complaints received and sworn to in the Gloucester Division
of the District Court Department on January 14 and 17, 2013.

     Motions to dismiss were heard by Joseph W. Jennings, III,
J.


     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.
     Matthew Wright Hemond for the defendants.


     AGNES, J.    This is the Commonwealth's appeal from the

dismissal of one count of assault and battery by means of a

dangerous weapon against defendant Julie Leonard, and one count

each of child endangerment against defendants Julie Leonard and

     1
         The companion case is against Mark Leonard.
                                                                     2


Mark Leonard.2      We conclude that the complaints established

probable cause for the elements of the crimes charged.

Accordingly, we vacate the judgments of dismissal and order that

the complaints be reinstated.

       Background.     a.   Police report.   We recite the facts

contained in the police report written by Detective Jeremiah

Nicastro of the Gloucester police department in support of his

application for the criminal complaints.         On the evening of

November 30, 2012, a group of youths (ages sixteen and

seventeen) were invited to a party at the home of the

defendants, Mark and Julie Leonard, the parents of one of the

teens.       The teens were supplied with alcohol by the twenty-three

year old boyfriend of the defendants' daughter, and were

drinking vodka, beer, and tequila when Mark arrived home at 9:30

P.M.       Mark joined his daughter and her friends in consuming

beer.       Julie arrived home around 11:00 P.M. and also joined

them, consuming red wine.       Mark smoked marijuana with his

daughter and her boyfriend, and the drinking continued until

around 2:00 A.M.

       One of the daughter's friends, Susan,3 aged sixteen, became

"extremely ill and began to throw up" during the early morning


       2
       Because the defendants share a surname, we refer to each
by their first name.
       3
           A pseudonym.
                                                                     3


hours, and stayed at the defendants' home overnight.    Susan

asked Julie, who is a nurse, to take her to the hospital, but

Julie explained that "if she [went] to the hospital they [would]

give her an IV and put a tube down her throat."    Susan was also

concerned that she would get into trouble if her mother found

out that she had been drinking at the defendants' home.    Susan

was not taken to the hospital.

     The next morning, around 11:00 A.M., Susan was sober but

"could not stop throwing up."    Julie told Susan that she had

some medicine Julie had taken from her employer, a nursing home,

that would help Susan stop throwing up.    Julie used a syringe to

inject Susan with an unknown substance.4   After the injection,

Susan "felt better."

     When the mother of one of the teens called Mark the next

day, Mark told her that his wife, Julie, "made a bad decision

because she is a nurse," and that "[Susan] asked Julie for the

injection of medicine."   Mark went on to say that Julie "can[']t

lose her job as a nurse, her job is on the line," and that, if

police became involved, Julie would tell them that "it was a


     4
       According to the police report, "[Susan] state[d] that the
medicine began with the letter C." It goes on to note in
parentheses, "(possibly Compazine?)" No further information on
the contents of the syringe was provided. As part of the
investigation, Detective Nicastro interviewed the administrator
of the nursing home where Julie was employed, who confirmed that
some patients do receive a liquid form of Compazine, and that
Julie would have access to those medications.
                                                                       4


tooth whitening tube with no needle and they tricked her but did

not really give her an injection of medicine."    Mark said that

"[Susan] would be too drunk to know the difference."     When

Detective Nicastro called Julie on January 13, 2013, and asked

her to come to the police station, she told him, "[W]e aren[']t

coming down without an attorney and they are all lying."       Mark

later consented to a search of the defendants' home, and during

the search, he stated, "I sometimes come home and my daughter

and her friends are here drinking, I am damn [sic] if I do, damn

[sic] if I don[']t, if I send them home and they get into an

accident I am screwed."

    b.     Disposition of the criminal charges.   Julie was charged

with assault and battery by means of a dangerous weapon.        Each

defendant also was charged with delivery of an alcoholic

beverage to a minor, reckless endangerment of a child, and

contributing to the delinquency of a child.   Julie moved to

dismiss the assault and battery charge, and both defendants

moved to dismiss the reckless endangerment charges.     By a

notation in the margin of the motion, the judge allowed

defendant Julie's motion to dismiss the charge of assault and

battery by means of a dangerous weapon against her, reasoning as

follows:   "The victim was not so intoxicated over a protracted

time period so as to invalid[ate] consent to the shot.
                                                                      5


(Reckless assault and battery alleging serious interference with

the victim's health or comfort may be sustainable)."

    With respect to the charge of reckless child endangerment

(one count against each defendant), the judge allowed the

motions to dismiss on the basis that "[t]he victim did not

suffer a 'serious bodily injury' as defined in G. L. c. 265,

§ 13L[,] as there was no permanent disfigurement and no

protracted loss or impairment of bodily function, limb or organ.

At best the Commonwealth's inference of a substantial risk of

death is unsupported by any factual allegation."

    Discussion.     a.   Probable cause for issuance of a criminal

complaint.   "After the issuance of a complaint, a motion to

dismiss will lie for a failure to present sufficient evidence to

the clerk-magistrate (or judge)."     Commonwealth v. DiBennadetto,

436 Mass. 310, 313 (2002).     "The probable cause standard on a

motion to dismiss a complaint is identical to that applied in

the analysis of a motion to dismiss an indictment for lack of

probable cause."    Commonwealth v. Ilya I., 470 Mass. 625, 627

(2015).   Judicial review is on the basis of an objective test.

See id. at 628.    The complaint need only contain sufficient

facts to establish the identity of the accused, and provide

probable cause as to each element of the crime(s) charged.      See

Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982);

Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013).     A
                                                                     6


motion to dismiss for lack of probable cause "is decided from

the four corners of the complaint application, without

evidentiary hearing."     Ibid., quoting from Commonwealth v.

Huggins, 84 Mass. App. Ct. 107, 111 (2013).    "[P]robable cause

exists where . . . the facts and circumstances within the

knowledge of police are enough to warrant a prudent person in

believing that the individual arrested has committed or was

committing an offense."    Commonwealth v. Stewart, 469 Mass. 257,

262 (2014), quoting from Commonwealth v. Santaliz, 413 Mass.

238, 241 (1992).   A demonstration of probable cause "requires

more than mere suspicion but something less than evidence

sufficient to warrant a conviction."    Commonwealth v. Roman, 414

Mass. 642, 643 (1993), quoting from Commonwealth v. Hason, 387

Mass. 169, 174 (1982).    We view the allegations set forth in

support of probable cause in the light most favorable to the

Commonwealth.   See Commonwealth v. Levesque, 436 Mass. 443, 444

(2002).

    b.    Assault and battery by means of a dangerous weapon.

The crime of assault and battery by means of a dangerous weapon,

in violation of G. L. c. 265, § 15A, requires proof of three

elements:   (1) the presence of all the elements of assault, and

(2) a touching, however slight, (3) by means of a dangerous

weapon.   See Commonwealth v. Appleby, 380 Mass. 296, 308 (1980).

The facts alleged in support of the complaint are that a
                                                                     7


touching occurred.     We examine in turn the evidence in support

of the two remaining elements to consider whether the probable

cause standard was satisfied.     We conclude that it was

sufficient for the elements of assault but insufficient to

establish probable cause on the dangerous weapon element.

    As a threshold matter, we recognize that the parties

dispute the importance of the alleged victim's consent to the

injection.   In our view, however, the issue of consent is

relevant only as to the lesser-included offense of simple

assault and battery.     "Consent is . . . immaterial to a charge

of assault and battery by means of a dangerous weapon, which

necessarily entails a risk of bodily harm."     Commonwealth v.

Burke, 390 Mass. 480, 482-483 (1983).     The question whether the

syringe was a dangerous weapon must be answered prior to any

consideration by the fact finder of the victim's capacity to

consent and whether she did in fact consent.    We therefore

address the dangerous weapon element first.

    1.     Dangerous weapon.   Under Massachusetts law, there is a

distinction between an instrumentality that is dangerous per se

and an instrumentality used in a manner that makes it dangerous

in fact.   See Commonwealth v. Tarrant, 367 Mass. 411, 414-417

(1975).    A weapon is dangerous as a matter of law when it is "in

its ordinary use designed to produce death or serious bodily

injury."   Id. at 416.    A hypodermic syringe, under this
                                                                     8


definition, is not dangerous per se.   See ibid.   However, a

hypodermic syringe may be dangerous in fact when "used in a

dangerous fashion."   Commonwealth v. Sexton, 425 Mass. 146, 149

(1997), quoting from Appleby, supra at 304.   See Commonwealth v.

Tevlin, 433 Mass. 305, 310-311 (2001) (sneakers qualified as

dangerous weapon); Commonwealth v. McIntosh, 56 Mass. App. Ct.

827, 831 (2002) (windowpane qualified as dangerous weapon).

     This is a highly fact-bound question that requires "not

only consideration of any evidence as to the nature and specific

features of the object but also attention to the circumstances

surrounding the assault and the use of the object, and the

manner in which it was handled or controlled."     Commonwealth v.

Marrero, 19 Mass. App. Ct. 921, 922 (1984).   Viewing the

evidence in the light most favorable to the Commonwealth, as we

must, the defendant administered an unknown drug used for adult

nursing home patients to a teenager for whom the drug had not

been prescribed and did so without knowing whether it was

contraindicated for the victim.5   The use of the syringe in such

circumstances was dangerous.   Therefore, it cannot be said as a

matter of law that the syringe and its contents were not

"capable of producing serious bodily harm."   Commonwealth v.



     5
       For purposes of determining the existence of probable
cause, the defendant's status as a nurse, standing alone, is not
material.
                                                                      9


Strickland, 87 Mass. App. Ct. 46, 60 (2015), quoting from

Marrero, supra.

     We turn now to the assault element of the lesser-included

charge of assault and battery.6

     2.   Assault.    Common-law assault may be accomplished by

either (1) an attempted battery or (2) putting another in fear

of an immediately threatened battery.       See Commonwealth v.

Gorassi, 432 Mass. 244, 247 (2000).     Under a theory of attempted

battery, it is not necessary that the victim be aware of, or in

fear of, the attempt.     See id. at 248.   Under a theory of

immediately threatened battery, however, the Commonwealth must

show that the defendant "engaged in 'objectively menacing'

conduct with the intent to put the victim in fear of immediate

bodily harm."   Ibid.    See Commonwealth v. Delgado, 367 Mass.

432, 437 (1975).     In this case, there is no evidence to support

a theory of threatened battery.    The police report indicates

that Julie proposed the use of the syringe to alleviate the

victim's nausea, and once the victim agreed, Julie administered

the drug it contained.    This is not evidence that Julie intended

to place the victim in fear, nor, as we noted in the foregoing

section, can Julie's conduct be characterized as "objectively

menacing."   Therefore, only a theory of attempted battery is


     6
       We do not address the element of a touching, because there
is no dispute that a touching occurred in this case.
                                                                     10


plausible to establish the assault element of assault and

battery by means of a dangerous weapon.

    3.     Attempted battery.   Attempted battery requires that the

defendant "intended to commit a battery, took some overt step

toward accomplishing that intended battery, and came reasonably

close to doing so."    Commonwealth v. Melton, 436 Mass. 291, 295

& n.4 (2002).    A battery, in turn, is a harmful or offensive

touching.   Commonwealth v. Burke, 390 Mass. 480, 482-483 (1983)

(differentiating between harmful and offensive battery).     Under

the attempted battery theory, the Commonwealth need not show

that the victim was in fear, or even aware, of the attempted

battery.    See Commonwealth v. Porro, 458 Mass. 526, 530 (2010).

"The critical element is the potential harm to which the victim

was exposed."   Commonwealth v. Lednum, 75 Mass. App. Ct. 722,

725 (2009).    If the touching is in fact physically harmful,

"consent is immaterial."    Burke, supra at 481.   A nonharmful

touching may still be a battery where the victim did not

consent.    See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467,

476 (2008).

    Thus, to survive the probable cause stage, the police

report must have contained facts sufficient to support the

attempted battery theory, i.e., that Julie intended to

effectuate a harmful or offensive touching in approaching Susan

to inject her with the syringe.    Here, the victim was a minor
                                                                   11


who had recently consumed a large amount of alcohol to the point

of vomiting, and there is a serious question whether she had the

capacity to consent to the touching.7   The facts alleged in

support of the complaint are that Julie was aware of the

victim's state, plainly intended to stick a needle into her arm,

and did in fact do so.   We conclude that this evidence

established probable cause to allow the issue whether the victim

could consent (and, by extension, whether the elements of

assault were established) to be considered by the fact finder at

trial.

     In the alternative, a theory of attempted battery by

harmful touching is also viable.    Because the syringe and its

contents were potentially harmful, attempting to administer the

injection could be an attempted battery, to which consent is

immaterial.    As previously explained, Julie, a nurse,

administered a drug to the victim without ascertaining whether

she had any allergies or was taking any counter-indicated drugs.

Indeed, she altogether lacked authority to prescribe

medications.    The fact that the victim had recently consumed a

large quantity of alcohol may have affected the drug's efficacy

     7
       Because Susan was a minor, the question whether she had
the legal capacity to consent to the injection is fiercely
debated by the parties. In addition, defendant Mark's comments
to one of the teens' mothers imply that Susan was intoxicated to
the point of being unable to give consent. However, it is not
for us to decide whether the victim could or did give her
consent.
                                                                    12


or harmfulness.   Whether the drug contained in the syringe posed

a threat of physical harm to the victim is a question for the

fact finder.

    c.   Reckless endangerment of a child.   The crime of

reckless endangerment of a child is committed when a person

"wantonly or recklessly engages in conduct that creates a

substantial risk of serious bodily injury . . . to a child or

wantonly or recklessly fails to take reasonable steps to

alleviate such risk where there is a duty to act."     G. L.

c. 265, § 13L, inserted by St. 2002, c. 322, § 2.    The statute

further requires an awareness and conscious disregard of a

"substantial and unjustifiable risk" to the child, which risk

"must be of such nature and degree that disregard of the risk

constitutes a gross deviation from the standard of conduct that

a reasonable person would observe in the situation."    Ibid.

Serious bodily injury is that which "results in a permanent

disfigurement, protracted loss or impairment of a bodily

function, limb or organ, or substantial risk of death."     Ibid.

We consider whether the facts alleged in the police report

satisfied the probable cause standard as to each element of the

crime charged, and conclude that they did.

    1.   Wanton or reckless conduct.   A conviction under § 13L

requires proof that the defendant, wantonly or recklessly,

either (a) engaged in conduct to create the substantial risk, or
                                                                    13


(b) failed to take reasonable steps to alleviate that risk where

she or he had a duty to act.     Commonwealth v. Coggeshall, 473

Mass. 665, 668 (2016).    The Commonwealth must prove the

defendant's subjective awareness of the risk in order to sustain

a conviction.    Id. at 670.   More than mere negligence is

required to show that the defendant wantonly or recklessly

disregarded the risk.    Under § 13L, "wanton or reckless" refers

to "such conduct . . .where an accused 'is aware and consciously

disregards' the risk."    Ibid., quoting from G. L. c. 265, § 13L.

See Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008).

    Although it is not clear from the police report, the

alcohol consumed by the victim may have been provided by one or

both defendants.    The police report does make clear that both

were consuming alcohol along with the teenagers in the

defendants' own home, that Julie was aware that Susan was

vomiting after having consumed a large volume of alcoholic

beverages, and that Julie did not heed her requests to be taken

to a hospital.    It also contains comments allegedly made by Mark

to one of the teens' mothers after the incident, which suggest

that he, too, was aware of Susan's condition.     These facts could

support a theory that the defendants created the substantial

risk of serious bodily injury by furnishing the alcohol that

Susan drank to excess.    Indeed, the crime of furnishing alcohol

to a minor is defined in G. L. c. 138, § 34, as amended through
                                                                    14


St. 2000, c. 175.    This section defines "furnish" to include

"allow[ing] a person under 21 years of age . . . to possess

alcoholic beverages on premises or property owned or controlled

by the person charged."    We infer that a violation of § 34 is

sufficient to establish that a defendant had the requisite mens

rea for the crime of reckless child endangerment.     The police

report's allegations therefore support a finding of probable

cause as to the wanton or reckless intent element of § 13L.

     2.   Substantial risk of serious bodily injury.    Serious

bodily injury is that which "results in a permanent

disfigurement, protracted loss or impairment of a bodily

function, limb or organ, or substantial risk of death."    G. L.

c. 265, § 13L.    The judge dismissed the complaint on the basis

that Susan did not suffer any serious bodily injury, as defined

in the statute.    However, as the Commonwealth correctly argues,

§ 13L does not require actual injury, but only a substantial

risk of such injury.    The potential serious bodily injury

alleged by the Commonwealth is aspiration and possible

protracted impairment of her digestive organs, demonstrated by

the alleged victim's uncontrolled vomiting.    We agree that this

potential constituted sufficient probable cause on the serious

bodily injury element of § 13L.8


     8
       Examples of conditions that, when protracted, can
constitute substantial bodily injury are asphyxia, malnutrition,
                                                                   15


    The Supreme Judicial Court recently revisited the

"substantial risk" standard of § 13L in Coggeshall, supra.      "The

term 'substantial risk' can be understood to mean a 'real or

strong possibility,'" which must be considered in conjunction

with the serious bodily injury requirement.   Ibid.   The police

report alleges that Susan, a minor, "could not stop vomiting"

after having consumed vodka, beer, and tequila.   It would be

reasonable and possible to conclude that these circumstances

presented a real or strong possibility that Susan could suffer

the injuries described above.   On these facts, we cannot

conclude as a matter of law that no substantial risk existed.

    4.   Conclusion.   The police report that forms the basis for

the criminal charges in this case contains factual allegations

sufficient to satisfy the probable cause standard as to both

charges of reckless child endangerment and as to assault and

battery by means of a dangerous weapon.   Accordingly, we vacate

the judgments of dismissal, reinstate the complaints, and remand

to the District Court for further proceedings consistent with

this opinion.

                                    So ordered.



and dehydration. See Commonwealth v. Chapman, 433 Mass. 481,
484-486 (2001) (interpreting "substantial bodily injury" as used
in G. L. c. 265, § 13J[a]). "Substantial bodily injury" in
§ 13J and "serious bodily injury" in § 13L have "essentially
identical meanings." Commonwealth v. Roderiques, 462 Mass. 415,
423 n.2 (2012).
