Opinion
14-P-186
02-19-2015
COMMONWEALTH v. SERGIO MENDOZA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, the defendant, Sergio Mendoza, was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), second offense, G. L. c. 90, § 24(1)(a)(1), and leaving the scene of an accident after causing property damage, G. L. c. 90, § 24(2). The defendant appeals, asserting that the trial judge erred in denying his motion for required findings of not guilty. We affirm the OUI conviction, but reverse the conviction of leaving the scene of an accident.
Sufficiency of evidence of OUI. The evidence of OUI was overwhelming. Winthrop Police Officer Shawn McCarthy found the defendant in the driver's seat of his car, with the engine running, in the driveway of his home. The car had "heavy damage" to the front, a flat front left tire, and further damage to both the front and side bumpers. The defendant had difficulty standing and was "unsteady on his feet" when he got out of the car. The officer detected a "very heavy" smell of alcohol. When McCarthy asked the defendant for his license and registration, the defendant replied, "Nope. I'm home. You can't make me." The defendant also told McCarthy that he had consumed "four, five, six, maybe more" alcoholic beverages. His speech was slurred, and he needed three tries to produce his license from his wallet.
The defendant took his wallet out of his pocket "and pulled out a photograph. Looked at it. Put it back in the wallet. Looked through the wallet some more. Pulled out the same photograph. Stared at it again and then put it back in his wallet and then pulled out a driver's license."
Based on McCarthy's testimony regarding the location of the defendant's driveway and the traffic pattern in the neighborhood of his one-way street, the trial judge could fairly conclude, as he did, that the defendant must have been driving on a "public way" just before McCarthy found him parked in the driveway with the engine on. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010).
The defendant's reliance on the corroboration rule of Commonwealth v. Forde, 392 Mass. 453, 457-458 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 472-473 (1988), is entirely misplaced. The defendant's admissions were not even central to the Commonwealth's case, let alone the sole basis for the conviction. Even disregarding the substance of the defendant's statements, the evidence of OUI was substantial. Furthermore, in light of the other evidence, the defendant's statements, which he characterizes as "flippant," "irreconcilable," and "designed to irritate Officer McCarthy," could reasonably be construed as indicative of intoxication. The trial judge correctly denied the defendant's motion for a required finding of not guilty with respect to the OUI charge.
Sufficiency of evidence of leaving the scene of an accident. To prove the crime of leaving the scene of an accident, the Commonwealth must establish beyond a reasonable doubt "that (1) the defendant operated a motor vehicle (2) on a public way (3) and collided with or caused injury in some other way to another vehicle or to property; (4) the defendant knew that he had collided with or caused injury in some other way to that other vehicle or property; and (5) after such collision or injury, the defendant did not stop and make known his name, address, and the registration number of his motor vehicle." Commonwealth v. Velasquez, 76 Mass. App. Ct. 697, 698-699 (2010).
Officer McCarthy testified that a civilian named Albert Vanbuskirk brought him to the defendant's driveway. After telling McCarthy that he had had more than a few drinks, the defendant said to Vanbuskirk, "You should have taken the money. I just wanted a driver's license." The defendant twice denied being in an accident, but said that Vanbuskirk "should have just given me his information," that he "should have taken a hundred dollars," and that the defendant "just wanted his license. He would have paid for the damages." Vanbuskirk did not testify, nor did Officer McCarthy testify that he observed any damage to Vansbuskirk's property.
Other than the condition of the defendant's car, the Commonwealth presented no evidence that the defendant had been in a collision, and there was no evidence at all "that a collision ha[d] occurred causing damage to property of another." See Commonwealth v. Velasquez, 76 Mass. App. Ct. at 701. Nor was any evidence presented that the defendant left the scene of a damage-causing collision without identifying himself.
Disregarding the defendant's denial of being in any accident, the trial judge inferred that the defendant had caused damage to another vehicle from the defendant's statement that "[h]e would have paid for the damages." We find this inference insufficient to prove the crime beyond a reasonable doubt. To sustain a conviction, "it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "Nor may a conviction rest upon the piling of inference upon inference or conjecture and speculation." Commonwealth v. Mandile, 403 Mass. 93, 94 (1988).
Moreover, unlike the evidence of OUI, the evidence that the defendant was involved in a collision that caused property damage here is based entirely on an inference from the defendant's uncorroborated statement. The defendant's statements that he would have paid for the damages "fall short of being a confession of all the elements of guilt but are admissions pertaining to the only contested issue." Commonwealth v. Leonard, 401 Mass. at 473. With respect to the element of causing damage to the property of another, "[a]part from his statements, there was no such evidence." Ibid.
Conclusion. On the charge of leaving the scene of an accident after causing property damage, the judgment is reversed, the finding is set aside, and judgment shall enter for the defendant. On the charge of operating a motor vehicle while under the influence of intoxicating liquor, second offense, the judgment is affirmed.
So ordered.
By the Court (Cohen, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 19, 2015.