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SJC-12186

                 COMMONWEALTH   vs.   HEATHER DRAGOTTA.



            Essex.    December 6, 2016. - March 21, 2017.

  Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk,
               Hines, Gaziano, Lowy, & Budd, JJ.1


 Assault and Battery.    Wanton or Reckless Conduct.      Child Abuse.



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

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

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Patrick Levin, Committee for Public Counsel Services, for
the defendant.
     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.


     BUDD, J.    After a jury-waived trial, Heather Dragotta was

convicted on one indictment charging her with wantonly or

recklessly permitting another person to commit an assault and

     1
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                      2


battery that resulted in bodily injury to her infant daughter

(victim).2   G. L. c. 265, § 13J.    The injury, an interhemispheric

subdural hematoma, that is, bleeding between the hemispheres of

the victim's brain, was recklessly inflicted by Dragotta's boy

friend, Steven Amos, after Dragotta left the victim in his sole

care while she took a shower.3      The Appeals Court affirmed

Dragotta's conviction, and we granted her application for

further appellate review.   Commonwealth v. Dragotta, 89 Mass.

App. Ct. 119, S.C., 475 Mass. 1102 (2016).      Because we conclude

that the evidence was insufficient to establish that her conduct

was wanton or reckless, we reverse the conviction.

     Background.   Much of the evidence presented at trial was

directed to explaining the victim's injuries and their cause.

Now, however, we are primarily concerned with Dragotta's state

of mind when she left the victim in Amos's care to take a

shower.   Viewing the evidence at trial in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378



     2
       Dragotta was acquitted on two further indictments charging
the same offense.
     3
       Steven Amos was convicted on three indictments charging
assault and battery on a child, causing bodily injury, for
inflicting the hematoma and, in separate incidents, fractures to
the victim's ribs and arm. His convictions were affirmed by the
Appeals Court, and we denied his application for further
appellate review. Commonwealth v. Dragotta, 89 Mass. App. Ct.
119, S.C., 475 Mass. 1103 (2016). Amos's convictions are not
before us.
                                                                   3


Mass. 671, 676-677 (1979), the trial judge, as fact finder,

reasonably could have found the following facts.

     The victim, who was Dragotta's first child, was born on

April 27, 2010.    Amos was not the victim's father, but he

participated actively in her care and acted as her father in all

respects.4    After the birth, Dragotta and Amos temporarily stayed

with Dragotta's parents in Weare, New Hampshire, so that the

victim's grandmother could help with the baby.    Also living in

the Weare house were Dragotta's brother and his girl friend, as

well as two of Dragotta's sisters.    Dragotta, Amos, and the

victim stayed in an upstairs bedroom in the Weare house for the

first three weeks of the victim's life.    Dragotta was the

victim's primary caregiver during this time, with the

grandmother taking care of her for a few hours each night to

allow Dragotta and Amos to rest.    For the first week of the

victim's life, Amos spent almost all his time with Dragotta and

the victim.    He thereafter returned to work, but when he

returned to the Weare house each evening, he again spent his

time with Dragotta and the baby.

     Two days after the victim was born, Dragotta took her to a

pediatrician for a well-baby check.    According to the



     4
       Indeed, both the trial prosecutor and an investigator from
the Department of Children and Families (department) referred to
Dragotta and Amos as the victim's "parents."
                                                                   4


pediatrician, the victim was healthy at that time and he had no

concerns about Dragotta's conduct.

    At some point in the first two weeks of the victim's life,

the grandmother noticed an unusual intermittent cracking sound

in the victim's upper back.   She testified that the sound did

not appear to be associated with any particular movement and

that it did not appear to be causing any pain.   Dragotta

telephoned the pediatrician's office to ask about it, and a

nurse there told her there was no cause for concern so long as

it was not bothering the victim.

    Over the next two weeks, the victim became more fussy.

Both the grandmother and Dragotta attributed this to gas-related

discomfort, which is common in breastfed infants.   Dragotta and

Amos gave the victim over-the-counter medications in an effort

to relieve her symptoms, without success.   On May 11, 2010, at

another well-baby appointment with the pediatrician, Dragotta

mentioned her concern about the gas-related symptoms.     The

pediatrician showed Dragotta a "bicycle" technique to help

relieve the symptoms:   laying the victim down on her back and

then gently grasping her legs and rotating them, either

alternately or together.   The doctor explained that this can

alleviate the baby's discomfort and the baby might pass gas or

stool as a result.   At this visit, the pediatrician again had no

concerns about the victim's health or Dragotta's conduct.
                                                                    5


    After the appointment, Dragotta showed the bicycle

technique to Amos, and each of them used this technique in an

effort to relieve the victim's discomfort.    At some point, Amos

concluded that the bicycle technique did not work, but that the

victim's symptoms could be alleviated by pushing her legs toward

her stomach and pushing them down into her stomach to relieve

gas or stool.   Dragotta saw Amos using this technique after the

checkup, and she knew that the victim occasionally cried when he

did so.

    On May 18, 2010, Dragotta and Amos moved to Amos's

apartment in North Andover, about an hour's drive from the Weare

house.    While they were living there, the victim was with

Dragotta about ninety per cent of the time.   Amos cared for the

baby by himself at times when Dragotta was showering,

exercising, or doing housework, as well as in the mornings

before leaving for work so Dragotta could sleep.   Often, Amos

would take the victim into another room to change her diaper and

would consistently use his gas-relieving technique whenever

doing so.

    Shortly after they moved to Massachusetts, Dragotta saw

Amos use his technique in a manner that caused the victim to

make a noise that she did not like.    On that occasion, Dragotta

thought Amos might be pushing too hard and that it might be too

much for her.   Dragotta immediately told Amos to stop using that
                                                                    6


technique, and she believed he complied.    However, Amos

continued using the technique until sometime the following week.

As discussed more fully below, Amos's use of this technique

caused the victim to sustain multiple rib fractures.

    One day, during the week of May 24, Dragotta left the

victim in Amos's care while she took a shower.    As Amos would

later tell investigators, he "had put some music on, and . . .

he was acting like [the victim] was a guitar, and . . . he was

dancing and spinning around the living room and dipping her up

and down, at one point dipping her forward, [and] her head came

crashing down on his collarbone."     The victim cried for "a

couple of minutes" after hitting her head.    The following day,

Dragotta noticed a bruise near the victim's ear and some redness

in her left eye.    Amos told her what had happened, and Dragotta

told him to be more careful with the baby.    She then telephoned

the pediatrician's office and spoke with a nurse, who told her

to watch the redness in the victim's eye and to call again if it

became any worse.   The Commonwealth contended, and the judge

apparently found, that this "guitar" incident caused the victim

to sustain a subdural hematoma.     Dragotta's conviction arose

from this incident.

    However, the victim's injuries were not discovered until

June 3 and 4, 2010.   Dragotta and the victim spent the afternoon

of June 3 visiting friends and family in New Hampshire.     For a
                                                                   7


time, Dragotta left the victim in the care of one of her sisters

at the Weare house while she gathered some belongings.      When

they returned to the North Andover apartment that evening, Amos

held the victim on the living room sofa while Dragotta was in

the kitchen.   At one point, Amos moved the victim's arm, and she

"let out [an] awful cry," causing Dragotta to think something

was wrong with her arm.   Dragotta and Amos took the victim to

the emergency room at Lawrence General Hospital, arriving at

7:45 P.M. that evening.

    At that hospital, the victim's arm was X-rayed, revealing a

fracture of the right radius.   She then underwent a full

skeletal survey, that is, X-rays of every part of her body.

That skeletal survey revealed no other fractures.   A physical

examination of the victim likewise revealed no other injuries.

    The victim was transferred to Boston Children's Hospital

for further investigation as to the cause of the arm fracture.

Dr. Celeste Wilson, the medical director of the hospital's child

protection program, examined the victim during the morning of

June 4.   She observed a red spot in the victim's left eye, but

did not consider it to be a cause for concern.   Dr. Wilson also

saw no marks on the victim's skin.   Other than the right arm

fracture, she did not see anything out of the ordinary in her

examination of the victim.   She recommended that a second
                                                                     8


skeletal survey be performed, along with scans of the victim's

head.

     Dr. Paul Kleinman, a radiologist, reviewed the new skeletal

survey and found several fractures to the posterior, anterior,

and lateral portions of the victim's ribs.5   He opined that a

likely mechanism for all of these fractures was a compression of

the rib cage.    Based on the signs of healing visible in the

skeletal survey, Dr. Kleinman opined that the lateral fractures

were at least seven days old and that the posterior fractures

were between ten days and six weeks old.    He could not form an

opinion as to the age of the anterior fractures.

     In addition, Dr. Kleinman found evidence of injuries to the

victim's legs.   He opined that the injuries occurred from

"twisting and pulling forces."    Both he and Dr. Wilson testified

that the force required to cause such injuries was more than

would be expected from routine handling by a caretaker.    Dr.

Wilson also stated that the leg injuries could be caused by the

"bicycle" maneuver if it was performed improperly.

     As to the fracture to the victim's right radius, Dr.

Kleinman testified that it showed no sign of healing and was




     5
       The lateral fractures formed the basis for some of the
indictments against Dragotta and Amos. The anterior and
posterior rib fractures were not mentioned in any of the
indictments.
                                                                    9


therefore a recent injury.    He could not offer an opinion as to

its likely cause.

     Dr. Wilson examined the scans of the victim's head and

concluded that there was a small subdural hematoma between the

hemispheres of the victim's brain.    She testified that a

subdural hematoma could have numerous possible causes, but that

the most likely cause was an acceleration-deceleration motion,

which could result from shaking or from a sudden impact of the

head against a surface.6   Both Dr. Wilson and Dr. Kleinman

testified to their opinions that the victim's injuries were the

result of inflicted trauma.   While Dr. Wilson expressed doubt

that the hematoma could have been caused by the victim's head

striking Amos's collarbone during the "guitar" incident, the

record nonetheless is sufficient to support a finding that this

was the cause.

     The victim's injuries resulted in a report to the

Department of Children and Families (department) pursuant to

G. L. c. 119, § 51A.   Amy Silverio, a department investigator,

met separately with Dragotta and Amos during the afternoon of

June 4 at the department's Lawrence office.    North Andover

police Detective Daniel Cronin also participated.   Dragotta, who

was upset and tearful at times, told Silverio about the victim's

     6
       There was, however, no evidence of any fractures to the
victim's skull or injury to her neck, and the hematoma was not
large enough to put pressure on her brain.
                                                                   10


birth, her health up to that point, and about the events of June

3.   Dragotta also described the bicycle technique that the

pediatrician had taught her for relieving gas.   This maneuver

did not appear unusual to Silverio.   When questioned as to how

the victim might have sustained her injuries, Dragotta became

tearful and said that she believed Amos's pushing technique,

which she described for the investigators, could have broken the

victim's ribs.   She also told them that the victim would cry

when Amos pushed, and that at one point, after the victim had

made a sound Dragotta did not like, she told him not to use that

technique anymore.   As to the injuries to the victim's arm and

head, Dragotta had no explanation, other than a suspicion that

something might have happened while her sister was watching the

baby.   Silverio informed Dragotta that, due to the inflicted

injuries, a care and protection petition would be filed on

behalf of the victim.

     After Dragotta's interview was finished, she left the room

visibly upset, and Amos walked in.    He immediately asked whether

Dragotta would be allowed to keep the victim if he told them

that he was the one who hurt her.    Cronin told him not to lie to

protect anyone, but to say only what had happened.   Amos stated

that he was positive that he had broken the victim's ribs using

his gas-relieving technique.   He described his technique and

told Silverio and Cronin that he used it to relieve the victim's
                                                                   11


discomfort and to allow Dragotta to rest, as she was "stressed

paper thin."   He also stated that he felt he was pushing too

hard and hurting the victim.   About a week to ten days before

the interview, Amos had become concerned that he was damaging

the victim's internal organs, and he stopped using his

technique.   It appeared to Silverio from the timelines provided

by Dragotta and Amos that that Amos had continued using his

technique after Dragotta had told him to stop.

    When he was asked what might have caused the bleeding in

the victim 's brain, he described the "guitar" incident.    He

also demonstrated the "guitar" dancing for Silverio and Cronin.

This did not appear to them to be an appropriate way to handle

the victim, a five-week old infant who could not yet hold her

head up.   As to the victim's broken arm, Amos speculated that

this might have happened while Dragotta was taking the victim

out of her car seat, or earlier while the victim was with the

sister, although he did not believe either of them would hurt

the victim intentionally.   His only other suggestion was that he

might have grabbed her arm too tightly when she started to slide

off his stomach while they were on the sofa.

    The following Monday, Silverio and Cronin went to the North

Andover apartment and spoke further with Dragotta about the

victim's injuries.   The apartment appeared to Silverio to be an

appropriate environment for a small child.     In the course of her
                                                                   12


investigation, Silverio spoke with every person who had had

contact with the victim in the first six weeks of her life and

found no one who had any concerns about the way either Dragotta

or Amos treated her.    By the time of trial, according to the

victim's father's testimony, the victim was a healthy, active

three-year old child.

    Discussion.   At issue is whether the Commonwealth proved

that Dragotta acted wantonly or recklessly when she left the

victim in Amos's sole care while she took a shower on the

occasion of the "guitar" incident.   "Proof of recklessness

requires 'more than a mistake of judgment or even gross

negligence,' Commonwealth v. Michaud, 389 Mass. 491, 499 (1983),

and has been defined as 'intentional conduct . . . involv[ing] a

high degree of likelihood that substantial harm will result to

another.'   Commonwealth v. Welansky, 316 Mass. 383, 399 (1944)."

Commonwealth v. Pugh, 462 Mass. 482, 496 (2012).   "To constitute

wanton or reckless conduct, 'the risk . . . 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 [her] failure

reasonably to recognize it.'"    Commonwealth v. Levesque, 436

Mass. 443, 452 (2002), quoting Sandler v. Commonwealth, 419

Mass. 334, 336 (1995).   Dragotta's conviction can stand only if

she realized, or if an ordinary person in her circumstances

reasonably would have realized, the gravity of the danger to the
                                                                   13


victim.   See Pugh, 462 Mass. at 496-497.   Put another way, the

issue is whether Dragotta either knew or reasonably should have

known that Amos was so manifestly unfit to care for an infant

that the victim was in grave danger if she were left in his sole

care even briefly.

     Viewing the evidence in a light most favorable to the

Commonwealth, at the time of the guitar incident, the week of

May 24, 2010, Dragotta knew that Amos had not been using the

gentle "bicycle" technique to relieve the victim's gas symptoms,

but the more forceful pushing technique.    The trial judge, as

fact finder, rationally could have found that she also saw him,

on one occasion, use this technique forcefully enough to cause

pain and distress.   On that occasion, Dragotta told Amos to stop

using that technique, and she believed he complied.    There is no

evidence, however, that Dragotta or anyone else suspected that

Amos's technique caused injury until June 4, when the rib

fractures were discovered.   In particular, there is no evidence

of bruising connected with the rib fractures,7 nor is there



     7
       Dr. Celeste Wilson testified that, during her examination
of the victim, she was informed that the victim had had a bruise
on her rib about one and one-half weeks previously. The record
does not reveal the size and shape of the bruise or its precise
location. It also appears that Dr. Wilson attached no
significance to that bruise, even after learning of the victim's
rib fractures, other than to say that bruising is not common in
a five-week old infant. There is thus no basis on this record
to find that the bruise was related to the rib fractures or that
                                                                  14


evidence that the victim was behaving as though she was in acute

pain, so as to cause a reasonable person to be concerned that

she had an undiscovered injury.   Cf. Commonwealth v. Garcia, 47

Mass. App. Ct. 419, 422-423 (1999) (upholding conviction under

§ 13J where infant had bruises and mother had noticed pain, but

her explanations were implausible).   Although Dr. Wilson

testified that she would expect an infant with rib fractures to

cry, she consistently qualified that testimony by stating that

babies cry for many reasons and that it is difficult for a

parent to know why a baby is crying at any given time.   There is

no evidence that the victim cried in any way that was out of the

ordinary for an infant at any time before the "guitar" incident,

apart from the sound the victim made the last time Dragotta saw

Amos performing his modified bicycle maneuver.   As for that, the

evidence was simply that the victim made a noise that Dragotta

did not like, not that she was crying inconsolably or that she

continued to make that noise even after Amos stopped pushing.

Indeed, the doctors at Lawrence General Hospital did not detect

the rib fractures when they examined the victim and performed

the first skeletal survey, nor did Dr. Wilson observe anything

out of the ordinary, apart from the broken arm, in her

examination of the victim at Boston Children's Hospital.     It was



it should have caused Dragotta to suspect that the victim had a
serious injury inflicted by Amos.
                                                                  15


not until the second skeletal survey was performed that the rib

fractures were discovered.   Where the victim presented no

outward sign of injury that was detectable to medical

professionals, we do not see how Dragotta could have suspected

injury.

     The Commonwealth argues that Dragotta's later statement to

the investigators that Amos's technique could have caused the

rib fractures proves that she was aware of this possibility

before the fractures were discovered.   We disagree.   To draw

that conclusion, one would have to find that Dragotta suspected

that the victim's ribs might have been injured and did not seek

medical attention for that injury, although she had sought

medical advice for the benign cracking sound in the victim's

back, had kept the victim's routine pediatric appointments, and

later sought medical attention for the arm injury.8    In our view,

the only rational inference from Dragotta's statement at the

interview is that, upon learning that the victim's ribs were

fractured and being asked what might have caused this, she made

the connection to Amos's technique.   On all the evidence, at the

time she left the victim with Amos, there was no reason for

Dragotta to suspect that his technique had caused not only pain,

but also substantial injuries.


     8
       In this regard, we note that the judge acquitted Dragotta
of recklessly permitting Amos to inflict the rib injuries.
                                                                     16


    Moreover, although Amos was certainly an inexperienced and

flawed caretaker, it is undisputed that he did not intentionally

hurt the victim, and Dragotta had no reason to believe that he

would.   There was no risk that he would seize the opportunity to

harm the victim if left alone with her for even a short time.

To be sure, we do not hold that a defendant cannot be convicted

of recklessly permitting assault and battery to a child merely

because the principal assailant acted recklessly rather than

intentionally or merely because the child was in the assailant's

care for only a short time.   However, Amos's intentions toward

the victim and the length of time he would be alone with her are

relevant to the gravity of the risk that Dragotta placed her in

by leaving her in his sole care.

    Finally, we find it difficult to imagine what more a

reasonable person in Dragotta's position should have done.     See

Pugh, 462 Mass. at 497, citing Welansky, 316 Mass. at 398-399

("the inquiry as to reasonable conduct is central to whether the

defendant acted recklessly from an objective perspective").

When she saw that Amos's technique caused pain and distress to

the victim, she put a stop to it, and she believed he stopped

using his technique.   Although there might have been other

actions she could have taken -- ending the relationship and

moving out, or arranging for another adult to be present with

Amos and the victim while she showered -- we cannot say that any
                                                                   17


reasonable person would have been obligated to take these steps,

given the facts known to Dragotta at that time.

    In sum, the evidence at trial showed at most that

Dragotta's decision briefly to leave the victim alone with Amos

was an error in judgment.   The evidence was not sufficient as a

matter of law to find that her conduct involved a high degree of

likelihood that substantial harm would result.    Therefore, her

conviction of wantonly or recklessly permitting an assault and

battery on the victim cannot be sustained.

    Conclusion.   The judgment is reversed, the finding is set

aside, and judgment shall enter for the defendant.

                                    So ordered.
