Commonwealth v. Nababi

99 Mass.App.Ct. 1120

167 N.E.3d 910 (Table)

COMMONWEALTH

v.Gloria NABABI

(and nine companion cases

).

18-P-1192

19-P-539

Appeals Court of Massachusetts.

Entered: April 22, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

For the protracted abuse of K.K., M.K., and B.M.,³ a Superior Court jury convicted the defendants, Gloria Nababi and Richard Kyambadde, each of two counts of assault and battery by means of a dangerous weapon (ABDW) on a child under the age of fourteen in violation of G. L. c. 265, § 15A (c ) (iv), and three counts of reckless endangerment of a child in violation of G. L. c. 265, § 13L. On appeal, the defendants raise three identical issues: (1) the evidence was insufficient to support their convictions for reckless endangerment; (2) the failure of the trial judge to provide a specific unanimity instruction on the ABDW and reckless endangerment charges resulted in a substantial risk of a miscarriage of justice; and (3) the trial judge improperly limited cross-examination such that the defendants were deprived of their right to present a defense. We conclude that the evidence was sufficient to support Kyambadde's convictions for reckless endangerment. With respect to Nababi, the evidence was sufficient to support her convictions for reckless endangerment of K.K. and M.K., but not of B.M. We reject both defendants’ second and third claims. Therefore, as to Nababi, the judgment on count 9 for reckless endangerment of B.M. is reversed, the verdict is set aside, and judgment shall enter for Nababi on that count. The remaining judgments are affirmed. With respect to Kyambadde, all judgments are affirmed.

Background. Because the defendants challenge the sufficiency of the evidence, we recite the facts the jury could have reasonably found in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

When K.K. and her sister, M.K., first arrived in the United States from Uganda in 2012, they lived in a one-bedroom apartment in Waltham with their mother, Nababi, and Nababi's boyfriend, Kyambadde. K.K. was nine years old; M.K. was six years old. Nababi was rarely home, working two jobs from approximately 11 A.M. to 11 P.M. Except for certain religious obligations on Wednesdays and Sundays, Kyambadde spent most of his time at home. Shortly after K.K. and M.K. began school, Kyambadde told K.K. that "the honeymoon's over" and ordered her and M.K. to do various household chores including washing dishes, cleaning, dusting, and vacuuming. K.K. was also responsible for cooking breakfast and dinner, as well as cleaning up the kitchen afterward. When B.M. was born in 2013, K.K. was required to care for him. Despite being home quite often, Kyambadde did not help with the chores or the girls’ schoolwork.

If the chores or schoolwork were not completed to Kyambadde's satisfaction, he would physically punish them. At first, he beat K.K. and M.K. with a stick that he retrieved from outside. Kyambadde told the girls to lay prone on the ground, and he proceeded to beat them through their clothes. On occasion, K.K. would be punished for M.K.’s failure to adequately perform chores. Kyambadde beat the victims "everywhere on [their bodies]" for about an hour at a time. When they would run away to avoid these beatings, Kyambadde would follow and strike them again.

The nature and severity of the beatings escalated thereafter. Kyambadde began to strike the victims with the wooden handle of a bathroom plunger. To restrict their movement during the beatings, he would tie the victims up by their hands and feet. Although most of these beatings occurred while Nababi was at work, she would sometimes join Kyambadde in the beatings when she was home, and, in one instance, beat the victims herself. The beatings occurred almost every day in this form, leaving the victims bruised and bleeding. After beating M.K., Kyambadde had K.K. untie her.

Before B.M. was born, the family moved into a two-bedroom apartment. There, from time to time, Kyambadde instructed the victims to remove their clothing. As before, he proceeded to tie them up and beat them for up to an hour. Kyambadde threatened to beat the victims further if they cried too loudly. B.M. was present for some of the beatings. The victims were ordered to wear long sleeve uniforms to school to conceal their bruises. On occasion, K.K. and M.K. were also beaten for failing to eat moldy, leftover food.

In June 2014, the defendants and the victims attended a banquet at a church in Cambridge where Kyambadde was a preacher. When they returned home, Kyambadde, who was upset that the girls had failed to iron their uniforms and polish their shoes, retrieved scissors from the bathroom and cut their hair. He brought them to a barbershop the next day to shave off their remaining hair. After this incident, Kyambadde discovered that K.K. had thrown away spoiled soup that she was supposed to have eaten for dinner. He tied up K.K. and beat her with such severity that she had difficulty sitting down at school the following day.

On June 6, 2014, Department of Children and Families (DCF) investigator Cryselle Greenaway responded to the girls’ school in Waltham. She met with the principal and Nababi. Greenaway informed Nababi that a report of neglect and physical abuse had been filed with respect to K.K. and M.K. Greenaway further observed red welts across K.K.’s arms. Nababi was aware that K.K. had been hit with a stick but not that K.K. had marks and bruises on her body. Greenaway and another investigator went to the defendants’ apartment with members of the Waltham Police Department. She informed Kyambadde that she had spoken with K.K. about the abuse and observed welts on her arms. Kyambadde admitted to striking the victims as a form of punishment for failing to eat leftovers and because, he claimed, he caught them watching pornography. Officer Eileen Williams photographed the victims’ injuries, which included welts and bruises on K.K.’s arms, legs, back, thighs, and quadriceps, and injuries to M.K.’s thighs, legs, arm, and back.

Discussion. 1. Sufficiency. First, the defendants claim that the evidence was insufficient to support their convictions of reckless endangerment. We review this claim by considering "the evidence introduced at trial in the light most favorable to the Commonwealth, and determin[ing] whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017), citing Latimore, 378 Mass. at 676-677. "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).

Pursuant to § 13L, in order to satisfy the elements of reckless endangerment of a child beyond a reasonable doubt, the Commonwealth must prove: "(1) a child under age eighteen, (2) a substantial risk of serious bodily injury or sexual abuse, and (3) the defendant wantonly or recklessly (i) engaged in conduct that created the substantial risk, or (ii) failed to take reasonable steps to alleviate that risk where a duty to act exists." Commonwealth v. Coggeshall, 473 Mass. 665, 667-668 (2016). The evidence must support that the risk of injury is "a good deal more than a possibility, and its disregard substantially more than negligence." Commonwealth v. Santos, 94 Mass. App. Ct. 558, 560-561 (2018), quoting Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008). Simply put, the Commonwealth was required to prove that the defendants were " ‘aware of and consciously disregard[ed] a substantial and unjustifiable risk that [their] acts ... would result in serious bodily injury ... to [the children],’ and that [their] disregard of that risk was a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Hendricks, supra at 104, quoting G. L. c. 265, § 13L.

The defendants focus their arguments on the second and third elements. Specifically, Kyambadde argues that the evidence presented by the Commonwealth with respect to his repeated beatings did not create a substantial risk of serious bodily injury within the meaning of the statute. Nababi argues that the evidence was insufficient that she (1) acted recklessly or wantonly, and (2) created a substantial risk of serious bodily injury. We address these contentions in turn.

Contrary to Kyambadde's arguments, the evidence was sufficient to prove that he recklessly endangered all three children. From early 2012 through June 2014, he struck K.K. and M.K. in a manner that progressively increased in severity. What began as beatings with a stick turned into beatings with the wooden handle of a plunger. When the victims would run away, he would follow. Kyambadde tied the victims up by their hands and feet prior to commencing the beatings. Occasionally, at his direction, the victims were ordered to take off their clothes before they were bound and beaten. The victims were left with welts and bruises on their bodies, which Kyambadde tried to conceal from school officials with long sleeve clothing. K.K. expressed difficulty sitting down after one such beating. In spite of the defendants’ arguments that the Commonwealth failed to provide specific evidence from a medical professional regarding the effect of these beatings on the victims, we have no doubt that "a person of common intelligence would understand that" the appalling abuse inflicted by Kyambadde upon K.K. and M.K. subjected them to "a substantial risk of injury" (emphasis added). Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 260-261 (2013).

With respect to B.M., the evidence adduced at trial established that K.K. and M.K. would occasionally return home from school to find B.M., who was less than two years of age, alone at home. B.M....