Heard: December 6, 2016.
found and returned in the Superior Court Department on
October 1, 2010.
cases were heard by Richard E. Welch, III, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Patrick Levin, Committee for Public Counsel Services, for the
H. Slingerland, Assistant District Attorney, for the
Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk,
Hines, Gaziano, Lowy, & Budd, JJ. 
jury-waived trial, Heather Dragotta was convicted on one
indictment charging her with wantonly or recklessly
permitting another person to commit an assault and battery
that resulted in bodily injury to her infant daughter
(victim). G. L. c. 265, § 13J. The injury, an
interhemispheric subdural hematoma, that is, bleeding between
the hemispheres of the victim's brain, was recklessly
inflicted by Dragotta's boy friend, Steven Amos, after
Dragotta left the victim in his sole care while she took a
shower. The Appeals Court affirmed Dragotta's
conviction, and we granted her application for further
appellate review. Commonwealth v. Dragotta, 89
Mass.App.Ct. 119, S.C., 475 Mass. 1102 (2016). Because we
conclude that the evidence was insufficient to establish that
her conduct was wanton or reckless, we reverse the
the evidence presented at trial was directed to explaining
the victim's injuries and their cause. Now, however, we
are primarily concerned with Dragotta's state of mind
when she left the victim in Amos's care to take a shower.
Viewing the evidence at trial in the light most favorable to
the Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), the trial judge, as fact finder,
reasonably could have found the following facts.
victim, who was Dragotta's first child, was born on April
27, 2010. Amos was not the victim's father, but he
participated actively in her care and acted as her father in
all respects. After the birth, Dragotta and Amos
temporarily stayed with Dragotta's parents in Weare, New
Hampshire, so that the victim's grandmother could help
with the baby. Also living in the Weare house were
Dragotta's brother and his girl friend, as well as two of
Dragotta's sisters. Dragotta, Amos, and the victim stayed
in an upstairs bedroom in the Weare house for the first three
weeks of the victim's life. Dragotta was the victim's
primary caregiver during this time, with the grandmother
taking care of her for a few hours each night to allow
Dragotta and Amos to rest. For the first week of the
victim's life, Amos spent almost all his time with
Dragotta and the victim. He thereafter returned to work, but
when he returned to the Weare house each evening, he again
spent his time with Dragotta and the baby.
days after the victim was born, Dragotta took her to a
pediatrician for a well-baby check. According to the
pediatrician, the victim was healthy at that time and he had
no concerns about Dragotta's conduct.
point in the first two weeks of the victim's life, the
grandmother noticed an unusual intermittent cracking sound in
the victim's upper back. She testified that the sound did
not appear to be associated with any particular movement and
that it did not appear to be causing any pain. Dragotta
telephoned the pediatrician's office to ask about it, and
a nurse there told her there was no cause for concern so long
as it was not bothering the victim.
the next two weeks, the victim became more fussy. Both the
grandmother and Dragotta attributed this to gas-related
discomfort, which is common in breastfed infants. Dragotta
and Amos gave the victim over-the-counter medications in an
effort to relieve her symptoms, without success. On May 11,
2010, at another well-baby appointment with the pediatrician,
Dragotta mentioned her concern about the gas-related
symptoms. The pediatrician showed Dragotta a
"bicycle" technique to help relieve the symptoms:
laying the victim down on her back and then gently grasping
her legs and rotating them, either alternately or together.
The doctor explained that this can alleviate the ...