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Commonwealth v. Dragotta

Appeals Court of Massachusetts, Essex

February 25, 2016

Heather Dragotta (and one companion case [1] )

         Argued January 12, 2016

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

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

          Jacob B. Stone for Steven Amos.

          Patrick Levin, Committee for Public Counsel Services, for Heather Dragotta.

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

         Present: Kafker, C.J., Cohen, & Blake, JJ.


Page 120

          [46 N.E.3d 565] Kafker, C.J.

          After a joint jury-waived trial in the Superior Court, defendant Heather Dragotta was convicted of wantonly or recklessly permitting another to commit an assault and battery upon her infant daughter causing bodily injury (head injury), and defendant Steven Amos was convicted on three indictments charging assault and battery upon the same child causing bodily injury (two rib fractures, head injury, and arm fracture).[2] On appeal, Dragotta and Amos both claim that the evidence was insufficient to sustain their convictions, and Amos adds that the expert testimony exceeded the permitted scope of such evidence.

          Sufficiency of the evidence.

          Viewing the evidence in the light most favorable to the Commonwealth, the judge was warranted in finding the following. E.g., Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979).

         The victim was born on April 27, 2010, without any complications. Dragotta is the victim's mother. Amos was Dragotta's boyfriend but not the father of the child. On the evening of June 3, 2010, Dragotta and Amos brought the five and one-half week old infant to the Lawrence General Hospital emergency room because she was not using her right arm and cried when it was touched. The X-rays taken at the hospital showed that not only was the victim's right arm fractured, but that her left arm was bowing. The fracture of the right arm was a displaced transverse fracture, meaning that the fracture went entirely across the bone and the two ends were slightly offset. These findings prompted the hospital to file a report of abuse with the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A (51A report). The victim was transferred to Boston Children's Hospital, and Dr. Celeste Wilson, the medical director of the child protective unit, was sought for consultation.

         The next day, Wilson examined the victim and spoke to Dragotta and Amos about the cause of the injuries. Dragotta told Wilson that she returned home on June 3 with the victim after visiting her relatives in New Hampshire, and she gave the baby to Amos while she went into the kitchen. Shortly thereafter, Dragotta noticed the victim was not using her right arm.

         Because of the unexplained injury to the victim's arm, Wilson ordered a full skeletal survey (X-rays), a computerized tomography

Page 121

scan (CT scan), and magnetic resonance imaging (MRI) of the victim's head. The X-rays, as the Commonwealth's expert, [46 N.E.3d 566] Dr. Paul Kleinman,[3] testified, revealed seven rib fractures near the spine, six rib fractures on the side and the front of the ribs, one fracture of the right leg, five fractures of the left leg, and fractures of the right and left arms. He testified that rib fractures indicated the child's chest had been compressed with a force equivalent to that which occurs in a motor vehicle accident. Kleinman explained that rib fractures are " very very uncommon in infants," in part because a baby's rib cage is flexible; rather, they are " overwhelmingly seen in children who have been victims of abuse." The location and nature of the leg fractures were also very uncommon and would have occurred from significant twisting and pulling forces that are delivered to that extremity. According to Kleinman, the leg fractures were highly specific for abuse. While the right arm fracture was the single injury that an active child might incur, neither that fracture nor the fracture to the left arm was typical for a five and one-half week old infant who is not mobile.

         Kleinman described the fractures as being of various ages, with the arm fracture being the most recent and the two fractures to the lateral ribs being more recent than the other fractures, having likely been incurred somewhere between seven days and two to four weeks earlier.[4] In Kleinman's opinion, all of the victim's fractures were caused by inflicted injury.

         Wilson reviewed the test conducted on the victim's head and testified that there was a subdural hematoma or bleeding on the brain. Wilson gave an opinion that the injury was the result of inflicted trauma from an acceleration or deceleration motion to the head. Two theories account for such an injury, either the head goes back and forth in such a motion as to create a whiplash or banging of the brain against the skull, or the head may accelerate into a solid object causing the skull to stop when it strikes the object while the brain continues going forward.

         Wilson further opined that the victim would have been in pain when the fractures were inflicted, and she agreed that the arm

Page 122

injury was " acute." Regarding the rib and leg fractures, the victim would have been " fretful," " irritable," or " fussy" when she was lifted or raised by others, or when her extremities moved. Based on the " entire picture," Wilson formed the opinion and testified that someone had inflicted injuries on ...

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