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SJC-11904

             COMMONWEALTH    vs.   DAVID A. COGGESHALL.



      Plymouth.       December 7, 2015. - February 24, 2016.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.



Reckless Endangerment of a Child. Probable Cause. Practice,
     Criminal, Complaint, State of mind. Evidence, State of
     mind.



     Complaint received and sworn to in the Plymouth Division of
the District Court Department on August 20, 2013.

    A motion to dismiss was heard by Kathryn E. Hand, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Vanessa L. Madge, Assistant District Attorney, for the
Commonwealth.
     Tara B. Ganguly for the defendant.
     Chauncey B. Wood, J. Anthony Downs, Todd Marabella, & Kara
Harrington, for Massachusetts Association of Criminal Defense
Lawyers, amicus curiae, submitted a brief.


    SPINA, J.     In this case we are asked to decide whether the

words "wantonly or recklessly" in G. L. c. 265, § 13L, the
                                                                    2


statute proscribing reckless endangerment of a child, require

proof of a defendant's subjective state of mind.1   On August 20,

2013, a two-count complaint issued against the defendant from

the Plymouth Division of the District Court Department, accusing

him of walking on railroad tracks, in violation of G. L. c. 160,

§ 218, and reckless endangerment of a child by walking on

railroad tracks with a child, in violation of G. L. c. 265,

§ 13L.    The defendant filed a pretrial motion to dismiss the

count charging him with reckless endangerment.    A judge in the

District Court ruled that the Commonwealth was required to

establish that the defendant actually was aware of the

substantial risk of serious bodily injury to which he exposed

his child, and that the evidence offered in support of the

application for the criminal complaint failed to demonstrate

     1
         General Laws c. 265, § 13L, states in relevant part:

     "Whoever wantonly or recklessly engages in conduct that
     creates a substantial risk of serious bodily injury or
     sexual abuse to a child or wantonly or recklessly fails to
     take reasonable steps to alleviate such risk where there is
     a duty to act shall be punished . . . ."

     Section 13L defines "wanton or reckless" conduct as
follows:

     "[S]uch wanton or reckless behavior occurs when a person is
     aware of and consciously disregards a substantial and
     unjustifiable risk that his acts, or omissions where there
     is a duty to act, would result in serious bodily injury or
     sexual abuse to a child. The 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."
                                                                    3


probable cause to believe that the defendant, who was heavily

intoxicated at the relevant time, had the mental state required

to support the charge.     The judge dismissed the count of

reckless endangerment.

     On appeal the Commonwealth argues that § 13L does not

require proof of a defendant's subjective state of mind, but

that, even if it did, sufficient evidence was presented in the

application for the criminal complaint to establish probable

cause to believe that the defendant had the requisite mental

state.    We transferred the appeal to this court on our own

motion, and now hold that the judge correctly stated the law,

but that the order of dismissal must be vacated because the

evidence presented met the threshold standard of probable cause.2

     1.   Background.    A police report was attached to the

application for the criminal complaint.    We summarize the facts

set forth in that report.    See Commonwealth v. Bell, 83 Mass.

App. Ct. 61, 62 (2013) (motion to dismiss criminal complaint for

lack of probable cause decided on four corners of complaint

application, without evidentiary hearing).

     On August 19, 2013, at about 2:15 P.M., two Halifax police

officers were sent to investigate a report of two individuals

walking on the Massachusetts Bay Transportation Authority (MBTA)

     2
       We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers in support
of the defendant.
                                                                        4


train tracks.   They saw the defendant and his eleven year old

son walking along the train tracks.    The MBTA was notified, and

it slowed the scheduled train to allow the police time to get

the defendant and his son off the tracks.

    The defendant was holding his son's hand for balance.         The

boy was carrying two plastic bags containing personal effects.

The boy made several efforts to keep his father from falling,

but at one point the defendant fell on his back and landed

between the tracks.    The officers noted that the defendant was

visibly intoxicated.     A heavy odor of alcohol was detected on

his breath.   When asked why they were on the tracks, the

defendant said that he always walks on the tracks, and that he

was "fucked up."   He also said he had had a few beers.     The

officers escorted the defendant and his son off the tracks.       At

no time did the defendant display an ability to walk on his own.

    2.   Discussion.     The Commonwealth contends that the police

report attached to the application for the criminal complaint

alleged sufficient facts to support the crime of reckless

endangerment of a child.     Before issuing a complaint a judicial

officer must find "sufficient evidence to establish the identity

of the accused . . . and probable cause to arrest him" for the

offense being charged.     Commonwealth v. Lester L., 445 Mass.

250, 255-256 (2005), quoting Commonwealth v. McCarthy, 385 Mass.
                                                                    5


160, 163 (1982).   See Mass. R. Crim. P. 3 (g) (2), as appearing

in 442 Mass. 1502 (2004).

    "Probable cause [to arrest] exists where 'the facts and

circumstances . . . [are] sufficient in themselves to warrant a

[person] of reasonable caution in the belief that' an offense

has been . . . committed."   Commonwealth v. Hason, 387 Mass.

169, 174 (1982), quoting Brinegar v. United States, 338 U.S.

160, 175-176 (1949).   "Probable cause requires more than mere

suspicion," but it is considerably less demanding than proof

beyond a reasonable doubt.   Hason, supra.    When applying this

standard we are guided by the "factual and practical

considerations of everyday life on which reasonably prudent

[people], not legal technicians, act."     Id., quoting Brinegar,

supra at 175.

    The application for the complaint must establish probable

cause as to each element of the offense.     Commonwealth v.

Hanright, 466 Mass. 303, 312 (2013), quoting Commonwealth v.

Moran, 453 Mass. 880, 884 (2009).   Our review of a judge's

determination of probable cause is de novo.     Commonwealth v.

Long, 454 Mass. 542, 555 (2009).

    The elements of § 13L are (1) a child under age eighteen,

(2) a substantial risk of serious bodily injury or sexual abuse,

and (3) the defendant wantonly or recklessly (i) engaged in

conduct that created the substantial risk, or (ii) failed to
                                                                     6


take reasonable steps to alleviate that risk where a duty to act

exists.   Commonwealth v. Rodriquez, 462 Mass. 415, 422 (2012).

There is no dispute that the defendant was adequately

identified, or that his son was under age eighteen at the time.

The disputed issues are the sufficiency of the evidence of a

substantial risk of serious bodily injury, and the sufficiency

of the evidence that the defendant wantonly or recklessly

engaged in conduct that created such substantial risk.

    We first address the question of substantial risk of

serious bodily injury.   The defendant contends that the risk of

serious bodily injury to the defendant's son was not

substantial, or even likely, but only a possibility.     He

concedes that he did not make this argument below.     However, he

contends that an appellate court "'may consider any ground

apparent on the record that supports the result reached in the

lower court.' . . .   Therefore, '[a] prevailing party is . . .

entitled to argue on appeal that the judge was right for the

wrong reason, even relying on a principle of law not argued

below'" (citations omitted).   Commonwealth v. Levesque, 436

Mass. 443, 455 (2002).

    "[A] statute must be interpreted according to the intent of

the Legislature ascertained from all its words construed by the

ordinary and approved usage of the language, considered in

connection with the cause of its enactment, the mischief or
                                                                     7


imperfection to be remedied and the main object to be

accomplished, to the end that the purpose of its framers may be

effectuated" (citation omitted).    Commonwealth v. Smith, 431

Mass. 417, 421 (2000).    Section 13L does not define the words

"substantial" or "risk," or the term "substantial risk."

"Substantial" is defined as "real," "not imaginary," "sturdy,"

or "solid."    See Webster's Third New International Dictionary,

2280 (1961).    "Risk" is defined as "the possibility of loss [or]

injury," and "danger, peril [or] threat."    See id. at 1961.     The

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

strong possibility."     We have said that in the context of § 13L

a "substantial risk" means "a good deal more than a

possibility."    Commonwealth v. Hendricks, 452 Mass. 97, 103

(2008).   The risk also must be considered in conjunction with a

particular degree of harm, namely "serious bodily injury."

Section 13L explicates that "[t]he 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."    Disregard of this risk

requires a showing that is "substantially more than negligence."

Hendricks, supra.

    Here, the evidence shows that the defendant was incapable

of walking by himself, and that he was relying on his son to

help him walk along the tracks.    If he were walking on the
                                                                    8


tracks alone, his course of conduct would have been illegal, a

matter that the defendant does not dispute.   Indeed, he does not

challenge the sufficiency of the evidence offered in support of

the count in the complaint that alleges a violation of G. L.

c. 160, § 218, the statute proscribing walking on railroad

tracks.   By enlisting the aid of his son to violate this law, he

encouraged the boy to violate the same law.   It is well known

that "[a] railroad track is a place of danger, and one,

unnecessarily and voluntarily going upon it or so near to it as

to be in a position of peril, must take active measures of

precaution."   Joyce v. New York, New Haven & Hartford R.R. Co.,

301 Mass. 361, 365 (1938).   This alone constitutes a substantial

risk of serious bodily injury, and a gross deviation from the

standard of conduct that a reasonable person would observe in

the situation.   Matters did not improve.   At one point the

defendant fell between the tracks.   Not only did he expose his

son to the danger of walking alongside the tracks, but had a

train approached while he was lying between the tracks, it is

reasonably likely that the boy would have tried valiantly and

desperately to remove his father to safety, thereby exacerbating

the risk to his own safety and life.   We conclude that the

evidence supports probable cause to believe that the defendant

exposed his son to a risk that no reasonable person would have
                                                                   9


permitted, namely, a substantial risk of serious personal

injury.

    The next issue is whether § 13L requires proof of an

accused's subjective state of mind.    The Commonwealth argues

that the words "wantonly or recklessly" in § 13L take on their

common-law meaning and do not require proof that the defendant

intended the risk or was even subjectively aware of the risk.

The Commonwealth relies on Levesque, 436 Mass. at 451-452, where

this court said that "wanton or reckless" conduct, at least with

respect to the common-law crime of manslaughter, is "intentional

conduct . . . involv[ing] a high degree of likelihood that

substantial harm will result to another," and "the risk [of

injury contemplated by the statute] must be known or reasonably

apparent, and the harm must be a probable consequence of the

defendant's election to run that risk or of his failure

reasonably to recognize it. . . .     Under Massachusetts law,

recklessness has an objective component as well as a subjective

component.   A defendant can be convicted . . . even if he was

'so stupid [or] so heedless . . . that in fact he did not

realize the grave danger . . . if an ordinary normal man under

the same circumstances would have realized the gravity of the

danger" (emphases added; citations omitted).     At common law a

defendant need not be aware of the risk of injury, but the

Commonwealth could show either that he was aware of the risk of
                                                                 10


injury, or that he reasonably ought to have been aware of the

risk.   That is, the Commonwealth could satisfy its proof by

showing that an objectively reasonable person would have been

aware of the risk.    The Commonwealth also relies on Commonwealth

v. Figueroa, 83 Mass. App. Ct. 251, 259 (2013), where the

Appeals Court applied the common-law meaning of "wanton or

reckless" in construing § 13L.

     Section 13L differs from the common-law meaning of "wanton

or reckless."    Section 13L is a crime created by the

Legislature, and although the Legislature used the words "wanton

or reckless," it expressly limited such conduct to circumstances

where an accused "is aware of and consciously disregards" the

risk.   G. L. c. 265, § 13L.   In these circumstances we ascertain

a clearly expressed legislative intent to depart from the

common-law meaning of the words "wanton or reckless."    See

Commonwealth v. Burke, 392 Mass. 688, 690 (1984), quoting

Commonwealth v. Knapp, 9 Pick. 495, 514 (1830).    The judge below

correctly recognized that § 13L requires proof of the

defendant's subjective state of mind with respect to the risk

involved.   That is, he must be shown to have been actually aware

of the risk.    Unlike the common-law meaning of "wanton or

reckless," the Commonwealth does not have the option of proving

a defendant's objective or subjective state of mind.
                                                                    11


    The Commonwealth next argues that the evidence was

sufficient to establish probable cause to believe that the

defendant actually was aware of the risk.    It contends that the

defendant's statement that he "always walked on the tracks" is

evidence that he knew where he was, that he knew he was with his

son because they were holding hands, and that he knew the youth

was under age eighteen because the youth was his son.     Moreover,

the defendant's statement that he was "fucked up" and had

consumed a few beers is evidence that he was aware of his own

condition and the cause of that condition.   From this evidence,

as well as the defendant's stated familiarity with railroad

tracks and the common knowledge that railroad tracks are

dangerous places to be walking, the Commonwealth contends that

this evidence establishes probable cause that the defendant

"wantonly or recklessly" engaged in conduct that created a

substantial risk of serious bodily injury to his eleven year old

son within the meaning of § 13L.   Specifically, the Commonwealth

contends that there is probable cause to believe that the

defendant was "aware of and consciously disregard[ed] a

substantial and unjustifiable risk that his acts . . . would

result in serious bodily injury . . . to a child."    G. L.

c. 265, § 13L.   We agree.   The probable cause requirement, which

is not particularly burdensome, was satisfied in this case.    We

express no view as to the strength of the evidence at trial.
                                                              12


    The order dismissing count two of the complaint is vacated,

and the case is remanded for trial.

                                      So ordered.
