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Massachusetts Appeals Court Dismisses Reckless Endangerment Charge Against Defendant Whose Daughter Ate Suboxone Pill

The Massachusetts Appeals Court today concluded that a district court judge had properly dismissed a reckless endangerment charge against a Lakeville man whose daughter had consumed a Suboxone pill.  The name of the case is Commonwealth v. Costa

The defendant and the mother of his two-year-old daughter were in their yard when they noticed the little girl, who was playing in the defendant’s parked car, spit something out of her mouth.  The defendant realized his daughter had put a Suboxone pill in her mouth, swallowed half of it, and spit out the remainder (Suboxone is used to treat drug addicts by, among other things, preventing cravings).  The defendant called 911 and then took his daughter to a nearby fire station.  In a subsequent police interview, the defendant said he didn’t know the pill was in the car and didn’t know where his daughter had found it.  He further said that he had a prescription for the medication and sometimes kept the pills in his car, but always in a bottle.  The bottle was not in the car at the time of the incident.  The Lakeville Police Department applied for a criminal complaint against the defendant, charging him with reckless endangerment of a child.  The complaint issued and, following his arraignment, the defendant moved to dismiss, arguing there was not probable cause to believe he committed the crime.  A district court judge agreed, finding that the events were “regrettable” but not criminal.  The Commonwealth appealed and the Appeals Court affirmed.

There are limited circumstances in Massachusetts where a judge can dismiss a case over the objection of the prosecutor.  One such circumstance is when the police report fails to establish probable cause that the defendant committed a crime.  To prove a reckless endangerment case, the Commonwealth must prove the defendant engaged in wanton or reckless conduct that resulted in an unjustifiable and substantial risk that the victim (who was under the age of 18) would suffer serious bodily injury or sexual abuse.  The Appeals Court noted that a substantial risk of injury requires “a good deal more than a possibility” and a defendant’s conduct must constitute “substantially more than negligence.”  It also needs to be proven that the defendant was actually aware of the risk and consciously disregarded it.  In this case, the Appeals Court ruled the Commonwealth had not established even probable cause that the defendant had committed the offense.  There was no evidence the defendant’s daughter was unsupervised – in fact, the defendant contemporaneously observed the daughter spit out half of the pill (suggesting that the daughter was being closely supervised).  It can be reasonably inferred that the defendant was immediately adjacent to the car, which allowed him to see what his daughter was doing.  The Commonwealth argued that by virtue of allowing the daughter to play in the car, the defendant had recklessly endangered her because she could have put the car into gear, which might have caused the car to drift into traffic.  The Appeals Court correctly concluded the Commonwealth’s argument amounted to “nothing more than speculation.”  Accordingly, the police report contained insufficient evidence to establish probable cause that the defendant had recklessly endangered his daughter, and the case was dismissed.

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