Commonwealth v. Leonard

90 Mass.App.Ct. 187

58 N.E.3d 343

COMMONWEALTH

v.Julie LEONARD (and a companion case¹ ).

No. 14–P–1464.

Appeals Court of Massachusetts, Essex.

Argued Feb. 11, 2016.

Decided Sept. 9, 2016.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

Matthew Wright Hemond for the defendants.

Present: KAFKER, C.J., RUBIN, & AGNES, JJ.

AGNES, J.

This is the Commonwealth's appeal from the dismissal of one count of assault and battery by means of a dangerous weapon against defendant Julie Leonard, and one count each of child endangerment against defendants Julie Leonard and Mark Leonard.² We conclude that the complaints established probable cause for the elements of the crimes charged. Accordingly, we vacate the judgments of dismissal and order that the complaints be reinstated.

Background. a. Police report. We recite the facts contained in the police report written by Detective Jeremiah Nicastro of the Gloucester police department in support of his application for the criminal complaints. On the evening of November 30, 2012, a group of youths (ages sixteen and seventeen) were invited to a party at the home of the defendants, Mark and Julie Leonard, the parents of one of the teens. The teens were supplied with alcohol by the twenty-three year old boyfriend of the defendants' daughter, and were drinking vodka, beer, and tequila when Mark arrived home at 9:30 P.M. Mark joined his daughter and her friends in consuming beer. Julie arrived home around 11:00 P.M. and also joined them, consuming red wine. Mark smoked marijuana with his daughter and her boyfriend, and the drinking continued until around 2:00 A.M .

One of the daughter's friends, Susan,³ aged sixteen, became “extremely ill and began to throw up” during the early morning hours, and stayed at the defendants' home overnight. Susan asked Julie, who is a nurse, to take her to the hospital, but Julie explained that “if she [went] to the hospital they [would] give her an IV and put a tube down her throat.” Susan was also concerned that she would get into trouble if her mother found out that she had been drinking at the defendants' home. Susan was not taken to the hospital.

The next morning, around 11:00 A.M., Susan was sober but “could not stop throwing up.” Julie told Susan that she had some medicine Julie had taken from her employer, a nursing home, that would help Susan stop throwing up. Julie used a syringe to inject Susan with an unknown substance.⁴ After the injection, Susan “felt better.”

When the mother of one of the teens called Mark the next day, Mark told her that his wife, Julie, “made a bad decision because she is a nurse,” and that “[Susan] asked Julie for the injection of medicine.” Mark went on to say that Julie “can[']t lose her job as a nurse, her job is on the line,” and that, if police became involved, Julie would tell them that “it was a tooth whitening tube with no needle and they tricked her but did not really give her an injection of medicine.” Mark said that “[Susan] would be too drunk to know the difference.” When Detective Nicastro called Julie on January 13, 2013, and asked her to come to the police station, she told him, “[W]e aren[']t coming down without an attorney and they are all lying.” Mark later consented to a search of the defendants' home, and during the search, he stated, “I sometimes come home and my daughter and her friends are here drinking, I am damn [sic ] if I do, damn [sic ] if I don[']t, if I send them home and they get into an accident I am screwed.”

b. Disposition of the criminal charges. Julie was charged with assault and battery by means of a dangerous weapon. Each defendant also was charged with delivery of an alcoholic beverage to a minor, reckless endangerment of a child, and contributing to the delinquency of a child. Julie moved to dismiss the assault and battery charge, and both defendants moved to dismiss the reckless endangerment charges. By a notation in the margin of the motion, the judge allowed defendant Julie's motion to dismiss the charge of assault and battery by means of a dangerous weapon against her, reasoning as follows: “The victim was not so intoxicated over a protracted time period so as to invalid[ate] consent to the shot. (Reckless assault and battery alleging serious interference with the victim's health or comfort may be sustainable).”

With respect to the charge of reckless child endangerment (one count against each defendant), the judge allowed the motions to dismiss on the basis that “[t]he victim did not suffer a ‘serious bodily injury’ as defined in G.L. c. 265, § 13L [,] as there was no permanent disfigurement and no protracted loss or impairment of bodily function, limb or organ. At best the Commonwealth's inference of a substantial risk of death is unsupported by any factual allegation.”

Discussion. a. Probable cause for issuance of a criminal complaint. “After the issuance of a complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate (or judge).” Commonwealth v. DiBennadetto, 436 Mass. 310, 313, 764 N.E.2d 338 (2002). “The probable cause standard on a motion to dismiss a complaint is identical to that applied in the analysis of a motion to dismiss an indictment for lack of probable cause.” Commonwealth v. Ilya I., 470 Mass. 625, 627, 24 N.E.3d 1048 (2015). Judicial review is on the basis of an objective test. See id. at 628, 24 N.E.3d 1048. The complaint need only contain sufficient facts to establish the identity of the accused, and provide probable cause as to each element of the crime(s) charged. See Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982) ; Commonwealth v. Humberto H., 466 Mass. 562, 565, 998 N.E.2d 1003 (2013). A motion to dismiss for lack of probable cause “is decided from the four corners of the complaint application, without evidentiary hearing.” Ibid., quoting from Commonwealth v. Huggins, 84 Mass.App.Ct. 107, 111, 993 N.E.2d 734 (2013). “[P]robable cause exists where ... the facts and circumstances within the knowledge of police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Stewart, 469 Mass. 257, 262, 13 N.E.3d 981 (2014), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). A demonstration of probable cause “requires more than mere suspicion but something less than evidence sufficient to warrant a conviction.” Commonwealth v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993), quoting from Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982). We view the allegations set forth in support of probable cause in the light most favorable to the Commonwealth. See Commonwealth v. Levesque, 436 Mass. 443, 444, 766 N.E.2d 50 (2002).

b. Assault and battery by means of a dangerous weapon. The crime of assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A, requires proof of three elements: (1) the presence of all the elements of assault, and (2) a touching, however slight, (3) by means of a dangerous weapon. See Commonwealth v. Appleby, 380 Mass. 296, 308, 402 N.E.2d 1051 (1980). The facts alleged in support of the complaint are that a touching occurred. We examine in turn the evidence in support of the two remaining elements to consider whether the probable cause standard was satisfied. We conclude that it was sufficient for the elements of assault and to establish probable cause on the dangerous weapon element.

As a threshold matter, we recognize that the parties dispute the importance of the alleged victim's consent to the injection. In our view, however, the issue of consent is relevant only as to the lesser-included offense of simple assault and battery. “Consent is ... immaterial to a charge of assault and battery by means of a dangerous weapon, which necessarily entails a risk of bodily harm.” Commonwealth v. Burke, 390 Mass. 480, 482–483, 457 N.E.2d 622 (1983). The question whether the syringe was a dangerous weapon must be answered prior to any consideration by the fact finder of the victim's capacity to consent and whether she did in fact consent. We therefore address the dangerous weapon element first.

1. Dangerous weapon. Under Massachusetts law, there is a distinction between an instrumentality that is dangerous per se and an instrumentality used in a manner that makes it dangerous in fact. See Commonwealth v. Tarrant, 367 Mass. 411, 414–417, 326 N.E.2d 710 (1975). A weapon is dangerous as a matter of law when it is “in its ordinary use designed to produce death or serious bodily injury.” Id. at 416, 326 N.E.2d 710. A hypodermic syringe, under this definition, is not dangerous per se. See ibid. However, a hypodermic syringe may be dangerous in fact when “used in a dangerous fashion.” Commonwealth v. Sexton, 425 Mass. 146, 149, 680 N.E.2d 23 (1997), quoting from Appleby, supra at 304, 402 N.E.2d 1051. See Commonwealth v. Tevlin, 433 Mass. 305, 310–311, 741 N.E.2d 827 (2001) (sneakers qualified as dangerous weapon); Commonwealth v. McIntosh, 56 Mass.App.Ct. 827, 831, 780 N.E.2d 469 (2002) (windowpane qualified as dangerous weapon).

This is a highly fact-bound question that requires “not only consideration of any evidence as to the nature and specific features of the object but also attention to the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled.” Commonwealth v. Marrero, 19 Mass.App.Ct. 921, 922, 471 N.E.2d 1356 (1984). Viewing the evidence in the light most favorable to the Commonwealth, as we must, the defendant administered an unknown drug used for adult nursing home patients to a teenager for whom the drug had not been prescribed and did so without knowing whether it was contraindicated for the victim.⁵ The use of the syringe in such circumstances was dangerous. Therefore, it cannot be said as a matter of law that the syringe and its contents were not ...