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16-P-892                                               Appeals Court

                  COMMONWEALTH   vs.   ELVIS GARCIA.


                           No. 16-P-892.

       Bristol.       April 9, 2018. - September 24, 2018.

             Present:    Meade, Hanlon, & Blake, JJ.


Child Abuse. Assault and Battery by Means of a Dangerous
     Weapon. Reckless Endangerment of a Child. Practice,
     Criminal, Instructions to jury, Argument by prosecutor,
     Duplicative convictions.



     Indictments found and returned in the Superior Court
Department on April 1, 2011.

    The cases were tried before E. Susan Garsh, J.


     John J. Connors for the defendant.
     Yul-mi Cho, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.    After a jury trial, the defendant, Elvis

Garcia, was convicted of assault and battery on a child with

substantial bodily injury, G. L. c. 265, § 13J (b); assault and

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b);
                                                                        2


and reckless endangerment of a child, G. L. c. 265, § 13L.1        He

now appeals, challenging the sufficiency of the evidence,

various aspects of the judge's instructions to the jury, and the

prosecutor's closing argument.     We affirm, and address the

defendant's claims in turn.

     1.    Background.   The jury heard the following evidence.2    On

January 29, 2011, James,3 the four year old victim, was admitted

to Boston Children's Hospital (Children's Hospital) with a

severe anal wound as well as extensive bruising over multiple

areas of his body.      James was seven years old at the time of

trial and he testified that the defendant, a friend of his

mother, inflicted the bruises as well as the anal injury by

hitting him with a belt.

     James's mother4 first developed a friendship with the

defendant in the spring of 2010, shortly after the dissolution

of her relationship with James's father.      James, then three

years old, lived with his mother and his older sister and

     1 The defendant also was charged with one count of
intimidation of a witness. The judge allowed his motion for a
required finding of not guilty as to that offense at the close
of the Commonwealth's case; there was no objection.

     2 We recite the facts in some detail, given the issues
presented.

     3   A pseudonym.

     4 The mother invoked her privilege under the Fifth Amendment
to the United States Constitution and did not testify at trial.
                                                                    3


brother in New Bedford.     For a number of years, the mother had

been addicted to "pills,"5 but, prior to June of 2010, she was

able to keep her life "in control" and maintain her job as a

hair stylist.

     Prior to June of 2010, the apartment where the family lived

was clean and "nice."     James attended day care full time, and

his sister attended with him in the afternoon at the end of her

school day.     Prior to June of 2010, James and his brother and

sister appeared happy, clean, and normal.     James would see his

maternal grandmother almost every day and, along with his

siblings, would attend family parties and holiday gatherings.

     After June of 2010, James's extended family saw the mother

and James less frequently, and noticed that they attended fewer

family events and parties.     James's siblings would sometimes

attend family events when the mother and James did not.     Over

the course of the summer and fall, on various occasions when

family members did see James, some reported noticing bruises on

his face.   The cleanliness of the family's apartment

deteriorated, and the mother was terminated from her job after

being increasingly absent and late.    During that time, both the

mother and James were at the defendant's home almost every day.




     5 There is nothing in the record to indicate more
specifically what kind of pills were at issue.
                                                                     4


In addition, the mother frequently would leave James alone with

the defendant, sometimes for hours or even days.

     During the summer of 2010, James's day care teachers

noticed that James began to change.   When he returned from a

June vacation in Florida, James was distant and not like his

usual self.   When he got in trouble, he would become

particularly emotional and start to cry, which had not been the

case previously.   The defendant started dropping James off on

some days, and at one point told his teacher, "[I]f he doesn't

listen, just tell him that you guys can . . . call me."     At the

end of July, his teacher noticed that James began to cling to

her "more than usual."   Also in July, a teacher noticed an

apparent burn mark on James's inner thigh.     In August, on one

occasion, she noticed scratches on his face.    Later that month,

the defendant brought James in with a bruise on his cheek and

said, "I'm sure he'll be perfect for you today."

     Also, that month, the mother changed the emergency contacts

and the list of individuals permitted to pick up James from day

care; she removed all of the other family members who had been

on the list, including James's grandmothers and others, leaving

only herself and the defendant on the list.6    James, who had had

very good attendance previously, began to be absent frequently

     6 The mother did not revoke the access of at least some of
these family members for James's sister.
                                                                      5


in July and August of 2010.   In September, the day care program

discharged him because of excessive unexcused absences.

    In July of 2010, James's maternal grandmother came to visit

the mother at work.   The grandmother saw the defendant waiting

outside in a car with James in his car seat.   She was happy to

see James as she had not seen him for a long time, and she ran

to the car.   James looked sad and was very quiet, and not like

his normal self.   As the mother came out of her workplace, the

defendant told her forcefully to get into the car, ending the

encounter.

    In August of 2010, the mother allowed James's paternal

grandmother to take him on a vacation to Florida.     During the

trip, James complained frequently that his "bum" hurt.     He would

sit sideways, and would cry when he went to the bathroom.     His

grandmother looked at the area and saw a small cut.

    In mid-October, after James turned four years old, he

visited with his maternal grandmother after a family apple-

picking trip; this was the first time that she had seen James

since July.   Although James seemed happy, he told her that "his

butt hurt."   She gave him a bath, and observed that "his butt

was red" and that he had a short, deep cut in the area.

    On October 25, 2010, the mother took James to his

pediatrician.   The pediatrician observed a rash on James's

scrotum, buttocks, and anal area.   He prescribed an antibiotic,
                                                                     6


an anti-inflammatory cream, and a medicine to protect the skin

in the area.    At a follow-up appointment on November 9, the

doctor noted that there was a small ulcerative lesion around the

anus, but that the rash did not seem worse, and had cleared on

the buttocks.   At a further follow-up visit three days later, he

observed that the area appeared to be improving.    On December 6,

James returned to the office, and the doctor observed that the

area appeared worse and had ulcers.   He referred James to

Children's Hospital the same day.

     James was admitted to Children's Hospital on December 6,

2010,7 where doctors observed an irregularly shaped ulcer under

the scrotum, and another ulcer on his anal area.    James

underwent various tests and examinations to rule out potential

causes of the ulceration.   Doctors ruled out infection but were

ultimately unable to determine a cause for his condition.    At

the time of his discharge, after a six-day hospitalization,

James's condition had "improved somewhat," although the ulcers

were still present.

     In late 2010, James's maternal grandmother obtained the

assistance of James's second cousin, who is an attorney, in

filing a petition for legal guardianship of James.    On January


     7 Medical staff noted during James's hospital stay that he
had a faint black eye with some bruising underneath the left
eye.
                                                                   7


27, 2011, the petition was allowed after a hearing at which

James's father assented to the guardianship and the mother did

not appear.   James's maternal grandmother had last seen James in

the mother's car two days earlier at his sister's school.     At

that point, she noted that James was able to sit without

complaining, and that he had no visible injuries.

    After the cousin obtained guardianship of James on behalf

of his maternal grandmother, the cousin was unable to locate

either the mother or James until January 29, when the cousin was

notified that the mother was in police custody.     The mother

refused to disclose James's specific location, but she

eventually connected the cousin with Elizabeth Quinn, who was

the girl friend of the defendant's best friend.     The cousin

engaged in "several conversations several minutes at a time"

with Quinn over approximately twenty-five minutes, with male

voices in the background of the telephone calls.     Quinn

eventually told the cousin to come to an intersection a couple

of houses away from the defendant's home to receive James.

Quinn directed her to report there with "no police."

    Quinn then retrieved James from the defendant's apartment,

where James was sleeping on the couch.   She brought him to the

agreed-upon street corner and handed him to the cousin, who was

accompanied by a State police officer.   James was having a

difficult time walking.   He was extremely upset and crying,
                                                                      8


saying, "Make it go away," and that his "bum" hurt.     He could

not sit down.   The cousin and the officer brought James to St.

Luke's Hospital, where, a nurse later testified, "[h]e appeared

afraid to me, he wouldn't . . . let me touch him."     She observed

"multiple bruises to his face, his eyes, a good per cent of his

body, his back, his legs, arms."   She identified photographs of

the injuries she observed, including photographs of James's

rectum, penis, and scrotum.   The photographs were admitted in

evidence.   After several hours, hospital staff made a decision

to transfer James to Children's Hospital.

    At Children's Hospital, examination confirmed that James

had extensive bruising and abrasions over multiple areas of his

body, including his forehead, cheek, arms, back, waist,

buttocks, inner and outer thighs, legs, and shins.     Superimposed

on the bruising on James's thigh were three curvilinear marks

that were suggestive of having been struck by a "flexible

implement that's been doubled" onto itself.     He had a cut under

his chin, and blood behind his right eardrum.

    James also had a very deep anal wound:      a widely split

laceration extending from just behind his scrotum to his

tailbone.   His anus was completely detached from the skin around

it and was "floating way up inside the buttocks."     The wound had

accumulated filth and fecal debris, and it appeared to be at

least a couple of days old but was not infected.     There was no
                                                                     9


abscess and no evidence of ulceration that could explain the

injury.    James ultimately required surgery to reconstruct the

area.

    Dr. Steven Fishman, James's surgeon, opined that James's

anal wound was induced externally by blunt force trauma, and

that no natural disease process or hygiene issues could have

created it.    Dr. Fishman testified that, in over twenty years of

experience as a pediatric surgeon, he had previously only seen a

completely "floating" anus as a result of surgery.     Dr. Fishman

noted that, because of the tensile strength in the tissues in

the area, if there is impact, there is a particular

susceptibility to tearing in that spot.     Without successful

surgery to reconstruct his anus and perineum, Dr. Fishman

testified that James risked having no control over defecation,

or being unable to defecate.

    On January 31, 2011, police officers went to the

defendant's apartment to search the premises.     They knocked on

the door, loudly said "Police," and waited.     No one came to the

door.     They knocked and announced themselves several additional

times and, receiving no answer, kicked the door in and entered

the apartment.     The defendant was in the living room of the

apartment at the time they entered.

    Officers recovered a number of items from the defendant's

apartment, including a black belt with a red-brown stain on the
                                                                    10


buckle found in a white plastic trash bag in one of the

apartment's bedrooms.    Deoxyribonucleic acid analysis of the

stain revealed a mixture of at least two individuals, with the

profile of the major contributor to the sample matching James.

The defendant and the mother were excluded as contributors to

the mixture.

     James testified that he had lived with the defendant along

with his mother, who was "sometimes" there.    James testified

that he did not like spending time with the defendant because

the defendant used to put "salt" in James's "butt," put James in

an attic closet, and stuck James's head in the toilet.    James

testified that the defendant did each of these things more than

once.    As to the salt, James testified that it "looked like salt

and it was white," and it "stinged a little bit" when the

defendant used it.    The defendant would bend him over, hold him

down, and swirl the salt in a glass cup.8    James said distinctly

that the defendant put the "salt in my butt," rather than on it.

     The defendant also would hit James "like everywhere" with a

black belt.    When he was shown images of the bruises on his

body, James testified that the defendant had caused them with




     8   James indicated that the salt was not wet or mixed with
water.
                                                                  11


the belt.9   Shown an image of his anal wound, James testified

that the defendant had caused that wound with the belt as well.

     2.   Discussion.   a.   Sufficiency of the evidence.   The

defendant argues that there was insufficient evidence for a

reasonable jury to find him guilty of assault and battery on a

child causing substantial bodily injury based on the theory that

the defendant caused the injury by striking James with a belt on

the buttocks.10   In particular, the defendant argues that the

Commonwealth's medical evidence was insufficient to demonstrate

that such a blow -- on the buttocks, as opposed to on the anus

or scrotum -- could have caused the injury.11    He also points to

his own expert's testimony in support of his argument.

     In the light most favorable to the Commonwealth, there was

ample evidence for the jury to draw the conclusion that a strike

from the belt caused the injury; the judge limited the jury's

     9 When presented with one image of his bruised hip area,
James reported that the defendant caused the injuries "[w]ith
the salt and the belt." For all of the other images, James
testified that the defendant caused them with just a belt.

     10 The verdict slip for this charge offered the jury options
to find the defendant guilty based on one or both of two
theories: "[t]ouching [James] in the area of his anus, scrotum,
or buttocks with a belt," and "[s]preading [James's] buttocks
cheeks." The jury selected the former option and not the
latter.

     11Although the defendant frames his argument as a flaw in
the judge's instructions offering the theory to the jury, we
view the challenge essentially as based in the sufficiency of
the evidence.
                                                                     12


consideration, saying, "[F]or this particular charge, you must

be satisfied that the Commonwealth has proved beyond a

reasonable doubt that the defendant touched [James] in the area

of his anus, scrotum or buttocks with a belt and/or by spreading

his buttock cheeks.   No other alleged touching is within the

scope of this indictment."   James testified at trial that the

defendant caused the anal wound by hitting him with a belt.     In

addition to other circumstantial evidence, James's testimony was

corroborated both by that of Dr. Fishman, who opined that blunt

force trauma caused the wound, and by evidence of James's blood

on a belt found in the defendant's home in a plastic bag.

Expert testimony proffered by the defendant, to the effect that

a blow to the buttocks would not have caused the wound because

the buttocks would have protected the perineal area, did not

cause the Commonwealth's case to deteriorate, as the jurors were

entitled to discredit that testimony.   See Commonwealth v. Bush,

71 Mass. App. Ct. 130, 137 (2008).   We are satisfied that the

judge's instructions fairly explained the charge to the jury; if

there was any error in including a reference to the buttocks in

the charge or on the verdict slip, the defendant did not object

and we see no risk of a miscarriage of justice.

    The defendant also argues that there was insufficient

evidence for the jury to find him guilty on the charge of

reckless endangerment of a child, because the Commonwealth did
                                                                     13


not provide evidence that "the injuries the Commonwealth

included as conduct under this theory created the risk of

additional injury."     The defendant's argument appears to be

premised on the mistaken belief that G. L. c. 265, § 13L,

requires that the defendant's actions in creating the risk of

injury not result in actual injury.     This is not an element of

the offense.     A risk of injury may "come to fruition in the form

of an actual injury."     Commonwealth v. Roderiques, 462 Mass.

415, 423 (2012) (defendant properly convicted of reckless

endangerment of child where infant had fractures of arm, legs,

ribs, spine, and clavicle).     Although actual injury is not

required to satisfy the statute, it is not necessary that injury

be absent.     Here, the jury could have properly found that the

defendant's conduct in causing James's injuries created

substantial risk of serious bodily injury.     There was no error.

     b.   Jury instructions.    The defendant argues that it was

improper for the judge to define bodily injury in the course of

his instruction on the offense of assault and battery on a child

causing substantial bodily injury.12,13   The defendant did not


     12Specifically, he contends, "When instructing the jury on
the assault and battery on a child causing substantial bodily
injury charge, the judge gave the statutory definitions of both
substantial bodily injury and bodily injury and included the
possibility that a blow with a belt to the buttocks caused the
perineal injury. The definition of bodily injury was not
pertinent to the charge and there was no evidence that a belt to
                                                                 14




the buttocks could have caused the perineal injury. These
errors combined to lower the Commonwealth's standard of proof
and undercut a central theory of the defense."

    13   General Laws c. 265, § 13J, provides as follows:

    "(a) For the purposes of this section, the following words
    shall, unless the context indicates otherwise, have the
    following meanings: --

    "'Bodily injury', substantial impairment of the physical
    condition including any burn, fracture of any bone,
    subdural hematoma, injury to any internal organ, any injury
    which occurs as the result of repeated harm to any bodily
    function or organ including human skin or any physical
    condition which substantially imperils a child's health or
    welfare.

    "'Child', any person under fourteen years of age.

    "'Person having care and custody', a parent, guardian,
    employee of a home or institution or any other person with
    equivalent supervision or care of a child, whether the
    supervision is temporary or permanent.

    "'Substantial bodily injury', bodily injury which creates a
    permanent disfigurement, protracted loss or impairment of a
    function of a body member, limb or organ, or substantial
    risk of death.

    "(b) Whoever commits an assault and battery upon a child
    and by such assault and battery causes bodily injury shall
    be punished . . . .

    "Whoever commits an assault and battery upon a child and by
    such assault and battery causes substantial bodily injury
    shall be punished . . . .

    "Whoever, having care and custody of a child, wantonly or
    recklessly permits bodily injury to such child or wantonly
    or recklessly permits another to commit an assault and
    battery upon such child, which assault and battery causes
    bodily injury, shall be punished . . . .
                                                                   15


object to the instruction at trial and, for that reason, "the

claims he now raises on appeal are not preserved.   See

Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979).   We therefore review

to determine whether an error occurred and, if so, whether that

error created a substantial risk of a miscarriage of justice."

Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013).

    "A trial judge is obligated to instruct the jury on all

aspects of pertinent law applicable to issues raised in the case

so that the [jurors] understand[] the basis for their verdicts."

Commonwealth v. Allen, 54 Mass. App. Ct. 719, 724 (2002).     It is

proper for a judge to define technical terms in jury

instructions.   Cf. Commonwealth v. Fuller, 421 Mass. 400, 411

(1995) (judge has discretion to define "mental disease or

defect").   As noted, the statute, G. L. c. 265, § 13J (a),

defines a substantial bodily injury as a "bodily injury which

creates a permanent disfigurement, protracted loss or impairment

of a function of a body member, limb or organ, or substantial

risk of death."   As "bodily injury" is a part of the definition

of substantial bodily injury in the statute, the judge here


    "Whoever, having care and custody of a child, wantonly or
    recklessly permits substantial bodily injury to such child
    or wantonly or recklessly permits another to commit an
    assault and battery upon such child, which assault and
    battery causes substantial bodily injury, shall be punished
    . . . ."

(Emphasis supplied.)
                                                                   16


acted properly in defining it.    Her definition closely tracked

the definition recited in the statute, and the defendant does

not contest its accuracy.    There was no error.14

    c.   Closing argument.    The defendant claims that the

prosecutor's closing argument was improper in several respects.

While the Commonwealth concedes some errors in the prosecutor's

summation, it argues that any misstatements were minor, and

therefore do not warrant reversal.    As the defendant did not

object at trial, we review the nine alleged errors individually

to determine whether they were error and, if so, whether they

created a substantial risk of a miscarriage of justice.

Commonwealth v. Jones, 471 Mass. 138, 148 (2015).    "Remarks made

during closing arguments are considered in context of the whole

argument, the evidence admitted at trial, and the judge's

instructions to the jury."    Commonwealth v. Andrade, 468 Mass.

543, 552 (2014), quoting Commonwealth v. Whitman, 453 Mass. 331,

343 (2009).   We also note that the judge told the jury that the

opening statements and the closing arguments of counsel were not

evidence, both before the arguments and again during her final

instructions to the jury.




    14 If anything, including the statutory definition of bodily
injury helped the defendant, by making it clear that the term
has a specific meaning and forestalling any juror speculation
about what might be sufficient to constitute bodily injury.
                                                                        17


    First, the defendant challenges the prosecutor's statement

that the defendant and James's mother met in May of 2010.        The

Commonwealth concedes that this was a misstatement.    The

defendant is correct that no witness testified that the

defendant and the mother first met in May of 2010.    A friend of

the defendant testified that the mother and the defendant spent

time together in late 2009, and the defendant testified that he

"knew of" the mother at the end of 2009.   James's family members

testified to meeting the defendant in May of 2010, or "late

spring, early summer" of 2010.   To the extent that the

prosecutor's comment that the two met in May of 2010 constituted

a misstatement, it was not a significant one.   The defendant

testified that he and the mother began to develop a friendship

in May of 2010.   That testimony supported with equal force the

Commonwealth's argument that the relationship between the two

coincided with a deterioration of the mother's parenting of

James and with injuries and changes of behavior in James.

    Second, the defendant challenges the prosecutor's statement

that it took twenty minutes for Quinn and the defendant to

"finally give up the child" after the arrival of James's cousin

and the State trooper at the arranged meeting place; the

cousin's testimony in fact was that it took two or three minutes

after their arrival before Quinn arrived with James.      The

Commonwealth concedes that this also was a misstatement.        As it
                                                                   18


points out, however, the cousin's testimony was that there were

about twenty-five minutes of "back and forth" telephone calls

with Quinn before arrangements were finally made to give James

to her.    Those arrangements included Quinn's demand that there

be no police present at the transfer.    Because there was ample

evidence of the difficulty the cousin experienced in securing

James, any prejudice arising from that misstatement was also

minimal.

    Third, the defendant claims that there was no basis for the

prosecutor to argue that, on January 29, 2011, the defendant

"knew" that police would be coming to his home.    Here, given

James's extensive injuries at the time the defendant

relinquished him from his custody, as well as the contentious

circumstances of the transfer of custody, the jury reasonably

could infer that the defendant would expect police contact

shortly after James's injuries were discovered.    A prosecutor

may "zealously argue in favor of those inferences favorable to

his or her case."    Commonwealth v. Rakes, 478 Mass. 22, 45

(2017).    "The inferences for which counsel argues need not be

necessary, or inescapable; they only need be reasonable and

possible."   Id.   We see no error in this portion of the

prosecutor's argument.

    Also, given this context, and contrary to the defendant's

argument, the judge did not err in giving a careful
                                                                  19


consciousness of guilt instruction based on testimony that the

defendant "did not answer the door in response to repeated

knocking by police."   Commonwealth v. Bruneau, 472 Mass. 510,

519 (2015).   The judge warned the jury, "You are not required to

draw such an inference and must use great care and caution

before you draw an inference of guilt from such evidence. . . .

[Y]ou should always remember that there may be numerous reasons

why an innocent person might do such things."   It was the

province of the jury to evaluate the credibility of the

defendant's alternative explanation for his delay.   See

Commonwealth v. Morris, 465 Mass. 733, 738-739 (2013).

    Fourth, the defendant claims that the prosecutor

mischaracterized his testimony by stating that he had claimed

that, while he cleaned or attempted to medicate James's anal

area, James was "screaming and writhing in pain," and yet he did

not see James's injury.   The defendant claims further that the

prosecutor improperly stated that he testified that he put

ointment on the injured area only once.

    In fact, the defendant testified that he poured a mixture

of warm water and "Epson [sic] salt" onto James's buttocks, that

it "hurt [James] a lot," and that James "cr[ied]," "yelled," and
                                                                  20


"screamed."15   He testified that, afterwards, he rinsed the area

with plain water and put cream on it.   He said that he cleaned

James in that manner only one time, and otherwise only used

wipes to clean the area directly.    He testified that, when he

was cleaning James in this way, he only saw James's scrotum area

and not any of the anal wound, which would require spreading the

cheeks of the buttocks to observe.   Because the defendant's

testimony supported the prosecutor's statements, there was no

error.

     Fifth, the defendant claims that the prosecutor made

several misrepresentations about the testimony of Dr. Elizabeth

Laposata, the defendant's medical expert.   First, he argues that

the prosecutor falsely stated that Dr. Celeste Wilson16 and Dr.

Laposata both had opined that the wounds on the child were

inflicted.   In context, it would have been evident to the jury

that this statement was a mere slip of the tongue, and that the


     15The defendant claims in various portions of his brief
that the prosecutor committed misconduct by falsely alleging
that the defendant used salt on James's wound. He claims that
the "salt" at issue was Epsom salt as explained in the
defendant's testimony, and was therefore intended to help James.
James's testimony supported the prosecutor's statements, and
neither the prosecutor nor the jury were required to accept the
defendant's explanation. See Commonwealth v. Cruz, 88 Mass.
App. Ct. 206, 210 (2015).

     16Dr. Wilson, the director of the child protection program
at Children's Hospital, was called as a witness by the
Commonwealth.
                                                                    21


prosecutor had intended to refer to the two medical experts

called by the Commonwealth:   Dr. Wilson and Dr. Fishman.    This

error did not create a substantial risk of a miscarriage of

justice.   See Commonwealth v. Thomas, 400 Mass. 676, 683 (1987)

(no reversal for prosecutor's "slip of the tongue" where judge

instructed jury that closing arguments are not evidence).

    Sixth, the defendant argues that the prosecutor wrongly

stated that Dr. Laposata "could not give [the jury] an

explanation at all" for the mechanism of James's injury, that

she blamed the purported escalation of James's injury over time

on moisture, and that she opined that the injury was caused by

James sitting on a "doggie pee pad."   In context, the

prosecutor's claim that Dr. Laposata could not give the jury an

explanation for the injury was in effect an argument that the

doctor could offer no credible explanation for the injury.    That

statement "falls into the category of 'enthusiastic rhetoric,

strong advocacy, and excusable hyperbole,' and is not grounds

for reversal."   Commonwealth v. Silva, 455 Mass. 503, 515

(2009), quoting Commonwealth v. Wilson, 427 Mass. 336, 350

(1998).

    Dr. Laposata did testify that moisture could contribute to

the body's failure to heal an ulcer, and that an ulcer could be

worsened by exposure to urine.   The prosecutor's reference to

that testimony therefore was proper.   As to the statement about
                                                                     22


a dog pad, the prosecutor's remark in context is not wholly

clear, but it appears that she intended to attribute this claim

not to Dr. Laposata specifically, but to the defense more

generally.   The defendant elicited evidence of such pads being

around James's mother's home, and introduced James's statement,

admitted only for impeachment, that "he sat on a doggy's pee pee

pad and his bum hurt[]."     This section of the prosecutor's

argument was inartful, but it was relatively brief.     To the

extent that it constituted error, we see no prejudice.

    Seventh, the defendant claims that the prosecutor

introduced her personal beliefs into her closing argument,

citing two statements.   He first challenges the statement, "You

honestly don't believe, I don't, that that night . . . there was

no conversation between [Quinn] and the defendant.     I submit to

you, of course there was."     The Commonwealth concedes that the

remark "I don't" was "inappropriate."

    "A prosecutor may not express [her] personal belief in the

testimony or suggest that [she] has knowledge independent of the

evidence at trial."   Commonwealth v. Sanders, 451 Mass. 290,

296-297 (2008).   Although we agree that the phrase "I don't" was

inappropriate, it was immediately followed by the proper

wording, "I submit to you."     "The prosecutor was entitled to

argue, as [she] was doing, that the jury should not arrive at

particular interpretations of the evidence."     Commonwealth v.
                                                                     23


Hogan, 375 Mass. 406, 408 (1978).    In any event, the challenged

remark was brief and unobtrusive, and it related to a tangential

matter in the case.   We note that such "[m]ere[] unfortunate and

unartful isolated" remarks "are generally not enough to lead the

jury to improper inferences drawn from presumed personal

knowledge of the prosecutor."    Commonwealth v. Raymond, 424

Mass. 382, 391-392 (1997), quoting Commonwealth v. Thomas, 401

Mass. 109, 115 (1987).   "The absence of objection from defense

counsel further convinces us that taken in the context, the

remark would not likely have misled the jury or prejudiced [the

defendant]."   Raymond, supra at 392.

    Eighth, the defendant also challenges the prosecutor's

sarcastic statement, "That really is a valid argument," as

improper vouching.    The statement at issue was made in the

context of the prosecutor's argument that mere familial disputes

did not fully explain James's mother's removal of family members

from James's day care access list.      The challenged remark was,

in fact, a criticism of a defense argument rather than any

intimation of personal knowledge.    Though often better avoided,

sarcasm is permitted in closing arguments.      See Commonwealth v.

Brum, 438 Mass. 103, 119 (2002).    There was no error.

    Finally, the defendant challenges the prosecutor's

characterization of the defendant as "a drug user" and his

friends as "all drug users."    The characterization was brief,
                                                                  24


not inflammatory, and based on the evidence.     The defendant

testified regarding his own drug use and that of his friends.

He referred to this testimony during his own closing argument.

The statement was proper.

     d.   Duplicative convictions.   For the first time in his

reply brief, the defendant claims that his convictions of

assault and battery on a child with substantial bodily injury

and reckless endangerment of a child are duplicative.17    "We need

not pass on grounds for reversal raised for the first time in a

reply brief."   Commonwealth v. McGowan, 400 Mass. 385, 390 n.4

(1987).   Nonetheless, the defendant's argument is unavailing,

because the two crimes have separate elements.

     A defendant "may properly be punished for two crimes

arising out of the same course of conduct."    Commonwealth v.

Torres, 468 Mass. 286, 288-289 (2014), quoting Commonwealth v.

Valliere, 437 Mass. 366, 371 (2002).    "A lesser included offense

is one which is necessarily accomplished on commission of the

greater crime."   Commonwealth v. D'Amour, 428 Mass. 725, 748

(1999).   "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


     17Although the defendant did not raise this issue in his
initial brief or below, the Commonwealth's brief addressed the
issue.
                                                                    25


are deemed to have been authorized by the Legislature and hence

not [duplicative].'"    Commonwealth v. Vick, 454 Mass. 418, 431

(2009), quoting Commonwealth v. Jones, 382 Mass. 387, 393

(1981).   In this analysis, "[t]he actual criminal acts alleged

are wholly irrelevant to the application of [the rule]; rather,

the elements of the crimes charged are considered objectively,

abstracted from the facts. . . ."    Commonwealth v. Jones, 441

Mass. 73, 76 (2004), quoting Commonwealth v. Jones, 59 Mass.

App. Ct. 157, 162 (2003).

    We turn now to the statutes at issue in the case at bar.

General Laws c. 265, § 13J (b), second par., in relevant part,

provides, "Whoever commits an assault and battery upon a child

and by such assault and battery causes substantial bodily injury

shall be punished."    General Laws c. 265, § 13L, in relevant

part, provides, "Whoever wantonly or recklessly engages in

conduct that creates a substantial risk of serious bodily injury

or sexual abuse to a child . . . shall be punished."    For

purposes of § 13L, the statute specifies that wanton or reckless

behavior occurs only where a defendant "is aware of and

consciously disregards" the risk at issue.    Id.   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."    Id.
                                                                     26


    Comparing the elements of the two offenses reveals that

each offense requires an element that the other does not.

Section 13J (b), second par., requires both a touching and an

injury, where § 13L requires only conduct that creates

substantial risk of injury.   Section 13L requires proof of a

"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" of serious bodily injury.     Commonwealth v.

Coggeshall, 473 Mass. 665, 670 (2016).     Section 13J (b), second

par., a general intent crime, requires only that the defendant

intended to engage in the touching.    See Commonwealth v. Cabral,

46 Mass. App. Ct. 917, 918 (1999).    Because each crime requires

an element that the other does not, neither crime is a lesser

included offense of the other.

    In support of his argument, the defendant relies

principally on Roderiques, 462 Mass. at 424, where the court

held that G. L. c. 265, § 13L, is a lesser included offense of

G. L. c. 265, § 13J (b), fourth par.     In Roderiques, however,

the court compared the elements of § 13L with those of the

fourth paragraph of § 13J (b), which criminalizes "child abuse

resulting from acts of omission" -- wantonly or recklessly

permitting substantial bodily injury to a child, or wantonly or

recklessly permitting another to commit an assault and battery

on a child, causing substantial bodily injury.     Roderiques,
                                                                  27


supra at 423.   Because the elements compared in that case were

different from those at issue here, the defendant's reliance is

inapposite.

                                    Judgments affirmed.
