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Appeals Court of Massachusetts.



Decided: November 29, 2021

By the Court (Sullivan, Sacks & Shin, JJ.1)


A grand jury indicted the defendant, Bruce L. Boddie, on charges of murder, G. L. c. 265, § 1, and assault and battery causing substantial bodily injury (ABSBI) on a child, G. L. c. 265, § 13J (b), fourth par., following the death of his four month old son. The defendant pleaded guilty to involuntary manslaughter, see G. L. c. 265, § 13, and ABSBI on a child. The defendant now appeals from the denial of his Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), motion to vacate the conviction of ABSBI on a child, on the basis that ABSBI on a child is a lesser included offense of involuntary manslaughter. We affirm the denial of the motion.

Discussion. “[A] defendant is not precluded from challenging his convictions (based on guilty pleas) on double jeopardy grounds where the defendant claims that the charges pleaded to are duplicative on their face and further expansion of the record or evidentiary findings are not required.” Commonwealth v. Dykens, 473 Mass. 635, 639 (2016), citing Commonwealth v. Negron, 462 Mass. 102, 106-107 (2012). “[W]e review the motion judge's decision de novo.” Commonwealth v. Rodriguez, 476 Mass. 367, 369 (2017).

The same elements test informs our double jeopardy analysis. Id. at 370-371. Under the same elements test, “[a] defendant may be punished for two crimes arising out of the same conduct so long as each crime requires proof of an element that the other does not.” Commonwealth v. Brule, 98 Mass. App. Ct. 89, 93 (2020). If each offense requires proof of an additional element, then “neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].” Negron, 462 Mass. at 109, quoting Commonwealth v. Anderson, 461 Mass. 616, 633, cert denied, 568 U.S. 946 (2012). “With respect to the application of this well-established rule, we have stated that the actual criminal acts alleged are wholly irrelevant ․ rather, the elements of the crimes charged are considered objectively, abstracted from the facts of any particular case” (quotation and citation omitted). Commonwealth v. Vick, 454 Mass. 418, 431 (2009).

The elements of the common law offense of involuntary manslaughter are (i) an unintentional killing resulting from either (ii) wanton and reckless conduct or (iii) “a battery not amounting to a felony which the defendant knew or should have known endangered human life” (quotation and citation omitted). Commonwealth v. Moseley, 483 Mass. 295, 303 (2019). The defendant contends that the Commonwealth proceeded at the plea hearing on the basis that the defendant acted in a wanton and reckless manner.2 While the Commonwealth contests this, we agree that the defendant's plea was based on an admission to willful, wanton, and reckless conduct.

As to the ABSBI on a child conviction, “[w]hen statutory crimes [such as ABSBI on a child] can be violated in multiple ways, comparison of their elements must focus on the specific variations that the defendant is alleged to have committed.” Commonwealth v. Roderiques, 462 Mass. 415, 421 (2012). Therefore, as is applicable here, we examine the elements of wanton or reckless assault and battery on a child causing substantial bodily injury, in violation of G. L. c. 265, § 13J (b), fourth par. The elements of that offense are (i) a person having care and custody of a child; (ii) who wantonly or recklessly permits; (iii) substantial bodily injury to the child. See G. L. c. 265, § 13J (b), fourth par. See also Roderiques, supra at 422. A child is defined as a person under the age of fourteen. See G. L. c. 265, § 13J (a). Substantial bodily injury is a “bodily injury which creates a permanent disfigurement, protracted loss or impairment of a function of a body member, limb or organ, or substantial risk of death.” Id. See Commonwealth v. Chapman, 433 Mass. 481, 484 (2001).

Each of these offenses has an element the other does not. The death of the victim is an element of the offense of involuntary manslaughter. See Moseley, 483 Mass. at 303. Death, however, is not an element of the offense of ABSBI on a child. See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 189 (2015). Cf. Commonwealth v. LaBrie, 473 Mass. 754, 767 (2016). The offense of ABSBI on a child requires proof that the child was under fourteen years of age, see G. L. c. 265, § 13J (a), an element that plays no part in proof of involuntary manslaughter. See The Ngoc Tran, supra (holding that assault and battery by means of dangerous weapon on person sixty years of age or older is not lesser included offense of murder because murder does not require proof of age of victim or use of dangerous weapon). Each offense contains an element the other does not.

Relying on Commonwealth v. Suero, 465 Mass. 215, 219–220 (2013), the defendant nonetheless argues that because the crime of involuntary manslaughter contains no age limit, ABSBI on a child is subsumed within the manslaughter offense. We are not persuaded. In cases such as Suero, involving indecent assault and battery on a child under the age of fourteen, and rape of a child under the age of sixteen, the Supreme Judicial Court has departed from the strict elements-based approach enunciated in Vick, 454 Mass. at 431, to hold that one offense is a lesser included offense of the other where the evidence is clear that the child was under the age of fourteen. See Suero, supra. See also Commonwealth v. Porro, 458 Mass. 526, 532–533 (2010); Commonwealth v. Walker, 426 Mass. 301, 305 (1997).

In a case such as this, that is, the beating death of an infant, the policy considerations that animated Walker, Porro, and Suero do not apply. In those cases the statutory offenses defined “child” differently, but there was no dispute that the age of the child in question fell below the age limit of the lesser included offense. Where the record was clear, the court sought to avoid jury confusion by treating the elements as coterminous. See Porro, 458 Mass. at 533 (“where there was no dispute as to the age of the victims, adherence to the strict elements approach to lesser included offenses in the Walker case was contrary to the underlying purpose of the doctrine because, where the jury were convinced there was indecent touching but were uncertain whether penetration had been proven beyond a reasonable doubt, they should not be required to choose between convicting the defendant of rapes that had not been proven or acquitting a defendant who had sexually assaulted young children”).

By contrast, this case is governed by the reasoning in The Ngoc Tran, 471 Mass. at 187-189, namely that the wanton and reckless assault and battery on a person in a protected age category contains an element not included in the offense of involuntary manslaughter, a crime which does not distinguish between the ages of the victims.3 Accordingly, because each offense contains an element the other does not, ABSBI on a child pursuant to § 13J (b), fourth par., is not a lesser included offense of involuntary manslaughter.4

Order denying motion to vacate conviction affirmed.


2.   “Wanton or reckless conduct involves a high degree of likelihood that substantial harm will result to another, and depends on whether the defendant realized the risk of harm or if a reasonable person, who knew what the defendant knew, would have realized such risk” (quotation and citation omitted). Commonwealth v. Hardy, 482 Mass. 416, 421 (2019).

3.   Roderiques involved a different situation, where both the greater and lesser offenses required proof of the age of the victim, and proof of the age element in the greater offense necessarily would have satisfied the age element of the lesser offense. 462 Mass. at 423.

4.   In view of our disposition on this ground, we need not reach the defendant's other arguments supporting his claim that the convictions were duplicative.

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