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13-P-1552                                               Appeals Court

                  COMMONWEALTH   vs.   FILIP M. CRUZ.


                            No. 13-P-1552.

      Bristol.       February 27, 2015. - September 4, 2015.

                Present:   Vuono, Milkey, & Blake, JJ.


Wanton or Reckless Conduct. Practice, Criminal, Duplicative
     convictions, Lesser included offense.


     Indictments found and returned in the Superior Court
Department on August 18, 2011.

    The cases were tried before D. Lloyd Macdonald, J.


     Joseph J. Czerwonka for the defendant.
     Owen J. Murphy, Assistant District Attorney, for the
Commonwealth.


    VUONO, J.     The defendant's mother, Olivia Cruz, was ninety-

one years old when she died of sepsis caused by an infection

from wounds that developed on her buttocks as a result of

sitting in her feces and urine over a period of several weeks.
                                                                      2


The defendant was Olivia's1 caretaker.    A Bristol County grand

jury returned two indictments charging the defendant with

offenses that, as alleged by the Commonwealth, resulted in

Olivia's death.     The first indictment charged him with wantonly

or recklessly permitting serious bodily injury to Olivia, an

elder or person with a disability under his care.     See G. L.

c. 265, § 13K(e).    The second charged him with having wantonly

or recklessly committed or permitted another to commit abuse,

neglect or mistreatment upon Olivia.     See G. L. c. 265, § 13K(d

1/2).    He was then convicted on both charges.   On appeal, the

defendant challenges the sufficiency of the evidence claiming,

in particular, that the Commonwealth failed to prove that he

acted wantonly or recklessly.     He also argues that his

convictions are duplicative because § 13K(d 1/2) is a lesser

included offense of § 13K(e).     We affirm.

     When the evidence is viewed in the light most favorable to

the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979), the jury could have found as follows.       In

September, 2008, the defendant lived with his parents, Olivia

and Antonio, in Fall River.     Olivia suffered from dementia

associated with Alzheimer's disease.     She was obese and could

not move without assistance.     Antonio, who was eighty-nine years


     1
       Because the victim and the defendant share the same
surname, we use first names to avoid confusion.
                                                                      3


old at the time of the events in question, was also in poor

health and could not care for Olivia on his own.2    Thus, the

defendant assumed responsibility for his mother's care.    He

claimed to have bathed, dressed, and fed Olivia daily, and had

left his job in order to provide her with full-time care.

     On September 28, 2010, paramedics were dispatched to the

Cruz's home in response to a report that Olivia had suffered a

stroke.    The defendant was outside when the paramedics arrived.

He was agitated and urged the paramedics to get his mother out

of the house.     When the paramedics entered the house, they were

overwhelmed by the odor of feces, urine, and rotting flesh.

They found Olivia slumped over in a recliner.     She was lethargic

and incoherent.    She was also dirty and unkempt, and as the

paramedics were moving her in preparation for transport to the

hospital, they found a dirty underpad, known as a "Chux," stuck

to her skin.    She was in acute distress:   she had a weak pulse

and was extremely dehydrated.

     Olivia was taken to the trauma room at St. Anne's Hospital

in Fall River and found to be in septic shock.     The subsequent

examination revealed that Olivia had decubitus ulcers -- deep

open sores which had grown to the size of softballs -- that

encompassed her entire buttocks such that her bones were

visible.    Olivia underwent emergency surgery to remove the

     2
         Antonio died prior to the start of the trial.
                                                                    4


infected tissue, which had become gangrenous.   However, the

surgery was not successful and Olivia died the following morning

as a result of sepsis and septic shock caused by the widespread

infection.   The surgeon opined that the ulcers would have taken

six weeks to develop, and according to the medical examiner who

conducted the autopsy, Olivia could have been in a state of

septic shock for up to a week.   The medical examiner also opined

that the infection resulting from prolonged immersion in feces

could have affected Olivia for over a week and up to six or

seven months.3   Both the surgeon and the emergency room doctor

who treated Olivia testified that the sores were preventable and

could have been treated, at least initially, by moving Olivia to

alleviate the pressure on her buttocks.   The defendant claimed

that he moved his mother from the recliner daily to bathe her,

but Antonio contradicted this claim and told the police that the

defendant did not take Olivia out of the recliner.   The

defendant acknowledged that he noticed a "reddened area" on her

buttocks approximately two weeks prior to Olivia's death, and

that she had been confined to the recliner for two or three

weeks.

     3
       The medical examiner testified that Oliva "died as a
result of sepsis and septic shock due to broad ulceration of the
buttocks with fasciitis (an infection which affects the fascia,
a fibrous tissue that binds the muscles) of the right hip due to
prolonged emersion in feces and urine . . . ." Secondary
contributing factors were "arthrosclerotic and hypertensive
cardiovascular disease and obesity."
                                                                      5


    The Commonwealth presented evidence of the complete squalor

in which Olivia and Antonio lived.     After Olivia died, the

police executed a search warrant at the home and found rotting

food in the kitchen and flies everywhere.     A commode covered

with dried feces was in Antonio's bedroom.     The jury also heard

evidence of the defendant's unusual behavior, which ranged from

being anxious and agitated when the paramedics arrived, to being

uncooperative and flippant with medical personnel at the

hospital.    Upon learning that the police wanted to speak with

him about his mother's condition, the defendant responded, "Are

they going to arrest me now or later?"

    1.      Sufficiency of the evidence.   To establish a violation

of § 13K(e), the Commonwealth was required to prove four

elements:    (1) the defendant was a caretaker, (2) of an elder or

person with a disability, and he (3) wantonly or recklessly (4)

permitted serious bodily injury upon such person.     The first

three elements of § 13K(d 1/2), are the same; the fourth

element, however, requires the Commonwealth to prove that the

defendant committed or permitted another to commit abuse,

neglect, or mistreatment upon such person.      The defendant does

not contest the sufficiency of the evidence with regard to the

first two elements of the offenses.    Rather, as we have noted,

he claims that the evidence was insufficient to support the

inference that he acted wantonly or recklessly.
                                                                     6


    "Wanton or reckless conduct is 'intentional conduct, by way

either of commission or of omission where there is a duty to

act, which conduct involves a high degree of likelihood that

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

Earle, 458 Mass. 341, 347 (2010), quoting from Commonwealth v.

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

462 Mass. 482, 496 (2012), quoting from Commonwealth v. Michaud,

389 Mass. 491, 499 (1983) ("Proof of recklessness requires 'more

than a mistake of judgment or even gross negligence' . . .").

     Whether the defendant's conduct is wanton or reckless "is

determined based either on the defendant's specific knowledge or

on what a reasonable person should have known in the

circumstances."   Pugh, supra.   Using the objective measure of

recklessness, which applies in this case, a "defendant's actions

constitute 'wanton or reckless conduct . . . if an ordinary

normal [man] under the same circumstances would have realized

the gravity of the danger.'"     Id. at 496-497, quoting from

Welansky, supra at 398-399.    To act wantonly or recklessly, a

defendant need not "intend the specific result of his . . .

conduct," but need only "intend[] to do the reckless act."

Commonwealth v. Life Care Centers of America, Inc., 456 Mass.

826, 832 (2010), quoting from Welansky, supra at 399.

    Although there was no direct evidence that the defendant

understood the severity of his mother's condition, there was
                                                                     7


sufficient circumstantial evidence.    See Commonwealth v. Garcia,

47 Mass. App. Ct. 419, 422 (1999).    The foul smell alone would

have alerted an ordinary person in the same circumstances to the

seriousness of the situation.    But here there was more.   The

sores on Olivia's buttocks were the size of softballs and would

have been observed by the defendant had he bathed his mother as

he claimed.   In this tragic case, the defendant's various acts

of omission (i.e., his failure to move his mother from the

recliner so as to prevent the development of ulcers, to properly

bathe and clean his mother, and to seek appropriate medical

assistance) were sufficient to establish wanton or reckless

conduct beyond a reasonable doubt.

    The defendant's reliance on the fact that a social worker,

who had visited the home approximately three weeks earlier in

response to a complaint of alleged elder abuse, did not detect

any foul smells or observe Olivia in any obvious distress is of

no consequence as the jury were not required to infer from this

evidence that the defendant was providing his mother with

adequate care.    See Commonwealth v. Harris, 468 Mass. 429,

440-441 (2014).   Nor was the jury required to accept the

defendant's explanation, presented through cross-examination,

that he was a "layman" who cared for his mother to the best of

his abilities.    "[Persons] may be reckless within the meaning of
                                                                  8


the law although [they themselves thought they were] careful."

Garcia, supra, quoting from Welansky, supra at 398-399.

     2.   Duplicative convictions.   The defendant argues that the

two offenses set forth in § 13K(d 1/2) and § 13K(e) are

duplicative because a violation of § 13K(d 1/2) is a lesser

included offense of § 13K(e), and therefore, his convictions

violate his right to be free from double jeopardy under the

Fifth Amendment to the United States Constitution and

Massachusetts common law.4

     Our cases hold that "a defendant may properly be punished

for two crimes arising out of the same course of conduct

provided that each crime requires proof of an element that the

other does not."   Commonwealth v. Vick, 454 Mass. 418, 431

(2009), quoting from Commonwealth v. Valliere, 437 Mass. 366,

371 (2002).   "As long as each offense requires proof of an

additional element that the other does not, 'neither crime is a

lesser included offense of the other, and convictions on both


     4
       We are not concerned here with multiple indictments
charging offenses under the same statute. Thus, we need not
determine whether the Commonwealth proved that the defendant
engaged in separate and discrete acts of criminal conduct. See
Commonwealth v. Traylor, 472 Mass. 260, 269-270 (2015). The
claimed double jeopardy violation at issue here arises from
"multiple 'prosecutions for different crimes, under different
statutes, arising out of the same criminal episode[, and
therefore,] we are required to determine whether either crime
charged is a lesser included offense of the other.'" Id. at
267-268, quoting from Commonwealth v. Donovan, 395 Mass. 20, 28
(1985).
                                                                      9


are . . . not [duplicative].'"    Vick, supra, quoting from

Commonwealth v. Jones, 382 Mass. 387, 393 (1981).

    A conviction pursuant to § 13K(d 1/2) requires evidence

that a caretaker "wantonly or recklessly commits or permits

another to commit abuse, neglect or mistreatment" upon an elder

or person with a disability (emphasis supplied).     The terms

"abuse, neglect or mistreatment" are defined by the statute as

follows:   (1) "Abuse" is "physical conduct which either harms or

creates a substantial likelihood of harm," (2) "Neglect" is "the

failure to provide treatment or services necessary to maintain

health and safety and which either harms or creates a

substantial likelihood of harm," and (3) "Mistreatment" is "the

use of medications or treatments, isolation, or physical or

chemical restraints which harms or creates a substantial

likelihood of harm."   G. L. c. 265, § 13K, as amended through

St. 2004, c. 501, §§ 3-6, 8.     A conviction pursuant to § 13K(e)

requires the Commonwealth to prove that a caretaker "wantonly or

recklessly permits serious bodily injury" to an elder or person

with a disability (emphasis supplied).     The term "serious bodily

injury" is defined by the statue as "bodily injury 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, § 13K(e), as inserted by St. 1995, c. 297, § 4.
                                                                 10


     Contrary to the defendant's claim, the difference between

§ 13K(d 1/2) and § 13K(e) is not a matter of degree.   While

§ 13K(d 1/2) encompasses conduct that constitutes "abuse,

neglect or mistreatment," § 13K(e) applies more broadly to any

conduct that results in serious bodily injury.   As such, each

offense "requires proof of an additional fact that the other

does not."   Edge v. Commonwealth, 451 Mass. 74, 75 (2008),

quoting from Commonwealth v. Crocker, 384 Mass. 353, 357 (1981).

Put another way, a violation of § 13K(e) does not necessarily

constitute a violation of § 13K(d 1/2).5   See Commonwealth v.

Torres, 468 Mass. 286, 289 (2014) ("An offense is a lesser

included offense only if one cannot be found guilty of the

greater offense without also being guilty of the lesser

offense").   Certainly, engaging in conduct that constitutes


     5
       We acknowledge that in this case the evidence establishing
the two offenses overlap. We also recognize, as the defendant
correctly suggests, that a defendant who is guilty of permitting
serious bodily injury to an elder or a person with a disability,
generally also will be guilty of committing or permitting
another to commit abuse, neglect, or mistreatment to that
person. We are required, however, to apply the elements-based
approach, first articulated in Morey v. Commonwealth, 108 Mass.
433, 434 (1871), to claims of purported duplicative convictions.
As the Supreme Judicial Court made clear in Vick, 454 Mass. at
431-435, the elements-based approach has not been expanded to
permit a conduct-based analysis of the facts of a particular
case. In short, the traditional elements-based approach
requires us to consider theoretical possibilities as well as
practical ones. "It bears repeating that, where, as here,
neither crime is a lesser included offense of the other,
multiple punishments are permitted even where the offenses arise
from the very same criminal event." Id. at 436.
                                                                 11


abuse, neglect, or mistreatment is not the only way by which a

caretaker can permit serious bodily injury to an elder.   See id.

at 289-290, quoting from Commonwealth v. Housen, 83 Mass. App.

Ct. 174, 178 2013 (violation of an abuse prevention order was

not a lesser included offense of assault and battery on a person

protected by an abuse prevention order because "it is possible

to violate an abuse prevention order in myriad ways").6

Accordingly, § 13K(d 1/2) is not a lesser included offense of

§ 13K(e), and the defendant's convictions are not duplicative.

                                   Judgments affirmed.




     6
       The defendant's reliance on Commonwealth v. Roderiques,
462 Mass. 415 (2012), is unavailing. In that case, the Supreme
Judicial Court held that reckless endangerment of a child (G. L.
c. 265, § 13L) was a lesser included offense of wantonly or
recklessly permitting an assault and battery on a child (G. L.
c. 265, § 13J[b], fourth par.), even though § 13L prescribed
conduct that created a "substantial risk of serious bodily
injury," while § 13J(b), fourth par., applied where the
defendant permitted "substantial bodily injury" (emphasis
supplied). Id. at 424 & n.3. In so holding, the court
explained that the distinction between injury and the risk of
injury was of no consequence because "[t]he occurrence of an
injury presupposes that a risk of injury has been created." Id.
at 423. Here, the difference between § 13K(d 1/2) and § 13K(e)
is not merely that one requires proof of injury while the other
requires proof that the conduct created a risk of injury.
Rather, as discussed supra, § 13K(d 1/2) is narrower in scope,
applying only in cases of "abuse, neglect or mistreatment."
