Criminal – Reckless endangerment

Listen to this article

Where a defendant was convicted of three counts of reckless endangerment of a child in violation of G.L.c. 265, section13L, one of those convictions must be reversed because the evidence failed to prove that the defendant acted wantonly or recklessly with respect to one of the three children.

“For the protracted abuse of K.K., M.K., and B.M., 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, section15A(c)(iv), and three counts of reckless endangerment of a child in violation of G.L.c. 265, section13L. 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. …

“Turning to Nababi’s sufficiency arguments, we conclude that the evidence was sufficient to sustain her convictions of recklessly endangering K.K. and M.K. …

“Nababi’s conviction for recklessly endangering B.M is a different matter. The Commonwealth was required to prove her ‘subjective state of mind with respect to the risk involved. That is, [she] must be shown to have been actually aware of the risk.’ … Even in the light most favorable to the Commonwealth, the evidence did not support beyond a reasonable doubt that Nababi was actually aware of the risk posed to B.M. by Kyambadde’s supervisory shortcomings. It was clear that Nababi worked long hours, including after B.M. was born. Further, there was no evidence she ever returned home to find B.M. alone. ‘[W]anton 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. Welansky, 316 Mass. 383, 399 (1944). On this record, the evidence failed to prove that Nababi acted wantonly or recklessly with respect to B.M. …

“For the foregoing reasons, the judgments on the counts against Kyambadde are affirmed. The judgment on count 9 for reckless endangerment of B.M. against Nababi is reversed, the verdict is set aside, and judgment shall enter for Nababi on that count. The remaining judgments against Nababi are affirmed.”

Commonwealth v. Nababi (and nine companion cases) (Lawyers Weekly No. 81-055-21) (Docket Nos. 18-P-1192 and 19-P-539) (April 22, 2021).

Click here to read the full text of the opinion.