Criminal – Assault and battery – Child endangerment

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Where (1) a police report established that a teenager’s parents consumed alcohol and drugs at their home with her and her friends and (2) the mother, a nurse, injected one of the friends with a syringe of medicine to stop her from vomiting, there was sufficient probable cause to support a charge of assault and battery by means of a dangerous weapon against the mother, as well as one count each of child endangerment against both the mother and father.

Accordingly, judgments of dismissal must be vacated and the complaints reinstated.

“ … 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. 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 ‘capable of producing serious bodily harm.’ …

“… Here, the victim was a minor who had recently consumed a large amount of alcohol to the point of vomiting, and there is a serious question whether she had the capacity to consent to the touching. … We conclude that this evidence established probable cause to allow the issue whether the victim could consent (and, by extension, whether the elements of assault were established) to be considered by the fact finder at trial.

“In the alternative, a theory of attempted battery by harmful touching is also viable. Because the syringe and its contents were potentially harmful, attempting to administer the injection could be an attempted battery, to which consent is immaterial. … The fact that the victim had recently consumed a large quantity of alcohol may have affected the drug’s efficacy or harmfulness. Whether the drug contained in the syringe posed a threat of physical harm to the victim is a question for the fact finder. …

“Although it is not clear from the police report, the alcohol consumed by the victim may have been provided by one or both defendants. … We infer that a violation of [G.L.c. 138,] section34 is sufficient to establish that a defendant had the requisite mens rea for the crime of reckless child endangerment. The police report’s allegations therefore support a finding of probable cause as to the wanton or reckless intent element of section13L.

“ … The potential serious bodily injury alleged by the Commonwealth is aspiration and possible protracted impairment of her digestive organs, demonstrated by the alleged victim’s uncontrolled vomiting. We agree that this potential constituted sufficient probable cause on the serious bodily injury element of section13L.”

Commonwealth v. Leonard (and a companion case) (Lawyers Weekly No. 11-120-16) (15 pages) (Agnes, J.) (Appeals Court) Motions to dismiss heard by Jennings, J., in District Court. Marcia H. Slingerland for the commonwealth; Matthew Wright Hemond for the defendants (Docket No. 14-P-1464) (Sept. 9, 2016).