Opinion
14-P-762
05-28-2015
COMMONWEALTH v. JACQUES JULES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Jacques Jules (defendant) appeals his conviction of negligent operation of a motor vehicle in violation of G. L. c. 90, § 24(2)(a). He claims that the complaint did not adequately charge an offense and that the Commonwealth's evidence was insufficient to show that his operation of the motor vehicle was negligent. We affirm.
The defendant argues that the complaint failed to charge an offense because, while it named the offense, it did not include the elements of the crime. Here however the complaint alleged that the defendant committed one count of "negligent operation of motor vehicle c. 90, § 24(2)(a)." The complaint also listed the date of the offense, the city in which it occurred, and the penalty for the crime.
"A complaint will not be dismissed if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him." Commonwealth v. Green, 399 Mass. 565, 566 (1987). Here, the complaint clearly stated a violation of the law and certainly allowed the defendant to know the nature of the accusation against him. "[I]t is not necessary for the Commonwealth to set forth in the complaint or indictment every element of the crime to withstand a motion to dismiss." Commonwealth v. Canty, 466 Mass. 535, 547 (2013), quoting from Commonwealth v. Fernandes, 430 Mass. 517, 519-520 (1999). Furthermore, the elements of the crime of negligent operation of a motor vehicle are contained in G. L. c. 90, § 24(2)(a), which is cited in the complaint. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 255 (2006). Cf. Commonwealth v. Brien, 67 Mass. App. Ct. 309, 311-312 (2006) (reference to penalty section of statute combined with other details in the complaint were sufficient to put the defendant on notice).
The citation included the names of the public ways on which the offense occurred and contained the notation that the defendant "ran over [the] foot of [a] passenger" as the basis for the charge. When the citation is read together with the complaint, the defendant clearly had sufficient notice of the offense with which he was charged. Even a serious omission in a complaint will not render it ineffective where the defendant is clearly put on notice of the offense charged. Commonwealth v. Serrano, 48 Mass. App. Ct. 163, 168 (1999), citing Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 459-460 (1999).
Finally, the defendant argues that there was insufficient evidence to prove that he negligently operated his motor vehicle. To determine whether the evidence presented at trial was sufficient, we must ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (citation omitted). Also, in order to find guilt beyond a reasonable doubt, the jury's inferences need not be "necessary or inescapable" but merely "reasonable and possible." Commonwealth v. Joyner, 467 Mass. 176, 179-180 (2014) (citation omitted).
Here, the defendant admits to the first two elements of the crime, that he operated the motor vehicle and that he operated it on a public way. His claim of insufficient evidence is directed to the requirement that he operated the vehicle "negligently so that the lives and safety of the public might have been endangered." A driver is negligent if he "fail[s] to exercise that degree of care, diligence, and safety that an ordinary prudent person would exercise under similar circumstances." Commonwealth v. Kline, 19 Mass. App. Ct. 715, 720 (1985). The question of negligence is considered to be a "fact determination" for the fact finder to decide. Nutt v. Florio, 75 Mass. App. Ct. 482, 485 (2009). Here the fact finder was the judge.
After reviewing all the evidence, and assessing it in the light most favorable to the Commonwealth, we conclude that a reasonable fact finder could find that the defendant failed to exercise the degree of care that an ordinary prudent person would have exercised under the circumstances. We reach this conclusion mindful of the fact that the existence of allegedly contradictory testimony does not prevent the fact finder from making decisions as to which testimony to believe. "If, from the evidence, conflicting inferences are possible, it is for the [fact finder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province." Commonwealth v. Lao, 443 Mass. 770, 779 (2005). Commonwealth v. Latimore, supra, asks whether the evidence if believed is sufficient as a matter of law to permit a guilty verdict; we should not determine whether the evidence ought to have been believed.
Judgment affirmed.
By the Court (Trainor, Grainger & Carhart, JJ.),
Panel members appear in order of seniority.
Clerk Entered: May 28, 2015.