January 12, 2016
Indictments found and returned in the Superior Court
Department on October 1, 2010.
cases were heard by Richard E. Welch, III, J.
B. Stone for Steven Amos.
Patrick Levin, Committee for Public Counsel Services, for
H. Slingerland, Assistant District Attorney, for the
Kafker, C.J., Cohen, & Blake, JJ.
N.E.3d 565] Kafker, C.J.
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). 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).
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.
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
of the unexplained injury to the victim's arm, Wilson
ordered a full skeletal survey (X-rays), a computerized
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, 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.
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. In Kleinman's opinion, all of
the victim's fractures were caused by inflicted injury.
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.
further opined that the victim would have been in pain when
the fractures were inflicted, and she agreed that the arm
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