Commonwealth v. Cruz (Lawyers Weekly No. 11-131-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1552 Appeals Court COMMONWEALTH vs. FILIP M. CRUZ. No. 13-P-1552. Bristol. February 27, 2015. – September 4, 2015. Present: Vuono, Milkey, & Blake, JJ. Wanton or Reckless Conduct. Practice, Criminal, Duplicative convictions, Lesser included offense. Indictments found and returned in the Superior Court Department on August 18, 2011. The cases were tried before D. Lloyd Macdonald, J. Joseph J. Czerwonka for the defendant. Owen J. Murphy, Assistant District Attorney, for the Commonwealth. VUONO, J. The defendant’s mother, Olivia Cruz, was ninety-one years old when she died of sepsis caused by an infection from wounds that developed on her buttocks as a result of sitting in her feces and urine over a period of several weeks. The defendant was Olivia’s[1] caretaker. A Bristol County grand jury returned two indictments charging the defendant with offenses that, as alleged by the Commonwealth, resulted in Olivia’s death. The first indictment charged him with wantonly or recklessly permitting serious bodily injury to Olivia, an elder or person with a disability under his care. See G. L. c. 265, § 13K(e). The second charged him with having wantonly or recklessly committed or permitted another to commit abuse, neglect or mistreatment upon Olivia. See G. L. c. 265, § 13K(d 1/2). He was then convicted on both charges. On appeal, the defendant challenges the sufficiency of the evidence claiming, in particular, that the Commonwealth failed to prove that he acted wantonly or recklessly. He also argues that his convictions are duplicative because § 13K(d 1/2) is a lesser included offense of § 13K(e). We affirm. When the evidence is viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found as follows. In September, 2008, the defendant lived with his parents, Olivia and Antonio, in Fall River. Olivia suffered from dementia associated with Alzheimer’s disease. She was obese and could not move without assistance. Antonio, who was eighty-nine years old at the time of the events in question, was also in poor health and could not care for Olivia on his own.[2] Thus, the defendant assumed responsibility for his mother’s care. He claimed to have bathed, dressed, and fed Olivia daily, and had left his job in order to provide her with full-time care. On September 28, 2010, paramedics were dispatched to the Cruz’s home in […]