Heard: April 9, 2018
found and returned in the Superior Court Department on April
1, 2011. The cases were tried before E. Susan Garsh, J.
J. Connors for the defendant.
Cho, Assistant District Attorney, for the Commonwealth.
Present: Meade, Hanlon, & Blake, JJ.
jury trial, the defendant, Elvis Garcia, was convicted of
assault and battery on a child with substantial bodily
injury, G. L. c. 265, § 13J (b); assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (b);
and reckless endangerment of a child, G. L. c. 265, §
13L. He now appeals, challenging the
sufficiency of the evidence, various aspects of the
judge's instructions to the jury, and the
prosecutor's closing argument. We affirm, and address the
defendant's claims in turn.
jury heard the following evidence. On January 29, 2011,
James,  the four year old victim, was admitted
to Boston Children's Hospital (Children's Hospital)
with a severe anal wound as well as extensive bruising over
multiple areas of his body. James was seven years old at the
time of trial and he testified that the defendant, a friend
of his mother, inflicted the bruises as well as the anal
injury by hitting him with a belt.
mother first developed a friendship with the
defendant in the spring of 2010, shortly after the
dissolution of her relationship with James's father.
James, then three years old, lived with his mother and his
older sister and brother in New Bedford. For a number of
years, the mother had been addicted to "pills,
" but, prior to June of 2010, she was
able to keep her life "in control" and maintain her
job as a hair stylist.
to June of 2010, the apartment where the family lived was
clean and "nice." James attended day care full
time, and his sister attended with him in the afternoon at
the end of her school day. Prior to June of 2010, James and
his brother and sister appeared happy, clean, and normal.
James would see his maternal grandmother almost every day
and, along with his siblings, would attend family parties and
June of 2010, James's extended family saw the mother and
James less frequently, and noticed that they attended fewer
family events and parties. James's siblings would
sometimes attend family events when the mother and James did
not. Over the course of the summer and fall, on various
occasions when family members did see James, some reported
noticing bruises on his face. The cleanliness of the
family's apartment deteriorated, and the mother was
terminated from her job after being increasingly absent and
late. During that time, both the mother and James were at the
defendant's home almost every day. In addition, the
mother frequently would leave James alone with the defendant,
sometimes for hours or even days.
the summer of 2010, James's day care teachers noticed
that James began to change. When he returned from a June
vacation in Florida, James was distant and not like his usual
self. When he got in trouble, he would become particularly
emotional and start to cry, which had not been the case
previously. The defendant started dropping James off on some
days, and at one point told his teacher, "[I]f he
doesn't listen, just tell him that you guys can . . .
call me." At the end of July, his teacher noticed that
James began to cling to her "more than usual." Also
in July, a teacher noticed an apparent burn mark on
James's inner thigh. In August, on one occasion, she
noticed scratches on his face. Later that month, the
defendant brought James in with a bruise on his cheek and
said, "I'm sure he'll be perfect for you
that month, the mother changed the emergency contacts and the
list of individuals permitted to pick up James from day care;
she removed all of the other family members who had been on
the list, including James's grandmothers and others,
leaving only herself and the defendant on the
list. James, who had had very good
attendance previously, began to be absent frequently in July
and August of 2010. In September, the day care program
discharged him because of excessive unexcused absences.
of 2010, James's maternal grandmother came to visit the
mother at work. The grandmother saw the defendant waiting
outside in a car with James in his car seat. She was happy to
see James as she had not seen him for a long time, and she
ran to the car. James looked sad and was very quiet, and not
like his normal self. As the mother came out of her
workplace, the defendant told her forcefully to get into the
car, ending the encounter.
August of 2010, the mother allowed James's paternal
grandmother to take him on a vacation to Florida. During the
trip, James complained frequently that his "bum"
hurt. He would sit sideways, and would cry when he went to
the bathroom. His grandmother looked at the area and saw a
mid-October, after James turned four years old, he visited
with his maternal grandmother after a family apple-picking
trip; this was the first time that she had seen James since
July. Although James seemed happy, he told her that "his
butt hurt." She gave him a bath, and observed that
"his butt was red" and that he had a short, deep
cut in the area.
October 25, 2010, the mother took James to his pediatrician.
The pediatrician observed a rash on James's scrotum,
buttocks, and anal area. He prescribed an antibiotic, an
anti-inflammatory cream, and a medicine to protect the skin
in the area. At a follow-up appointment on November 9, the
doctor noted that there was a small ulcerative lesion around
the anus, but that the rash did not seem worse, and had
cleared on the buttocks. At a further follow-up visit three
days later, he observed that the area appeared to be
improving. On December 6, James returned to the office, and
the doctor observed that the area appeared worse and had
ulcers. He referred James to Children's Hospital the same
was admitted to Children's Hospital on December 6, 2010,
where doctors observed an irregularly shaped ulcer under the
scrotum, and another ulcer on his anal area. James underwent
various tests and examinations to rule out potential causes
of the ulceration. Doctors ruled out infection but were
ultimately unable to determine a cause for his condition. At
the time of his discharge, after a six-day hospitalization,
James's condition had "improved somewhat,"
although the ulcers were still present.
2010, James's maternal grandmother obtained the
assistance of James's second cousin, who is an attorney,
in filing a petition for legal guardianship of James. On
January 27, 2011, the petition was allowed after a hearing at
which James's father assented to the guardianship and the
mother did not appear. James's maternal grandmother had
last seen James in the mother's car two days earlier at
his sister's school. At that point, she noted that James
was able to sit without complaining, and that he had no
the cousin obtained guardianship of James on behalf of his
maternal grandmother, the cousin was unable to locate either
the mother or James until January 29, when the cousin was
notified that the mother was in police custody. The mother
refused to disclose James's specific location, but she
eventually connected the cousin with Elizabeth Quinn, who was
the girl friend of the defendant's best friend. The
cousin engaged in "several conversations several minutes
at a time" with Quinn over approximately twenty-five
minutes, with male voices in the background of the telephone
calls. Quinn eventually told the cousin to come to an
intersection a couple of houses away from the defendant's
home to receive James. Quinn directed her to report there
with "no police."
then retrieved James from the defendant's apartment,
where James was sleeping on the couch. She brought him to the
agreed-upon street corner and handed him to the cousin, who
was accompanied by a State police officer. James was having a
difficult time walking. He was extremely upset and crying,
saying, "Make it go away," and that his
"bum" hurt. He could not sit down. The cousin and
the officer brought James to St. Luke's Hospital, where,
a nurse later testified, "[h]e appeared afraid to me, he
wouldn't . . . let me touch him." She observed
"multiple bruises to his face, his eyes, a good per cent
of his body, his back, his legs, arms." She identified
photographs of the injuries she observed, including
photographs of James's rectum, penis, and scrotum. The
photographs were admitted in evidence. After several hours,
hospital staff made a decision to transfer James to
Children's Hospital, examination confirmed that James had
extensive bruising and abrasions over multiple areas of his
body, including his forehead, cheek, arms, back, waist,
buttocks, inner and outer thighs, legs, and shins.
Superimposed on the bruising on James's thigh were three
curvilinear marks that were suggestive of having been struck
by a "flexible implement that's been doubled"
onto itself. He had a cut under his chin, and blood behind
his right eardrum.
also had a very deep anal wound: a widely split laceration
extending from just behind his scrotum to his tailbone. His
anus was completely detached from the skin around it and was
"floating way up inside the buttocks." The wound
had accumulated filth and fecal debris, and it appeared to be
at least a couple of days old but was not infected. There was
no abscess and no evidence of ulceration that could explain
the injury. James ultimately required surgery to reconstruct
Steven Fishman, James's surgeon, opined that James's
anal wound was induced externally by blunt force trauma, and
that no natural disease process or hygiene issues could have
created it. Dr. Fishman testified that, in over twenty years
of experience as a pediatric surgeon, he had previously only
seen a completely "floating" anus as a result of
surgery. Dr. Fishman noted that, because of the tensile
strength in the tissues in the area, if there is impact,
there is a particular susceptibility to tearing in that spot.
Without successful surgery to reconstruct his anus and
perineum, Dr. Fishman testified that James risked having no
control over defecation, or being unable to defecate.
January 31, 2011, police officers went to the defendant's
apartment to search the premises. They knocked on the door,
loudly said "Police," and waited. No one came to
the door. They knocked and announced themselves several
additional times and, receiving no answer, kicked the door in
and entered the ...