Opinion
14-P-584
02-25-2015
COMMONWEALTH v. VIRIATO F. DEPINA.
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
On appeal from his convictions of aggravated assault and battery and assault and battery by means of a dangerous weapon, the defendant contends that the trial judge erred in denying his motion for required findings of not guilty because the evidence was insufficient to prove that his actions were reckless. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence was sufficient to support the jury's verdicts, and we affirm.
Based on the evidence at trial, a jury could have found the following facts. Two bystanders heard the defendant and the victim arguing loudly, gradually getting closer to where the bystanders were standing. They heard the victim telling the defendant to leave her alone, and one bystander also heard the defendant telling the victim to get back in his car. The bystanders then saw a car approach with its headlights on and heard a loud bang. They saw the defendant get out of the driver's seat, drag the victim's limp body from in front of his car, put her inside his car, and speed away. He then drove the victim approximately five miles to a motel, where they spent the night. The following morning, the defendant took the victim back to her home, and the victim's sister subsequently took her to the hospital for treatment of her injuries.
In order to convict the defendant of the charged offenses based on wanton or reckless conduct, the Commonwealth must prove beyond a reasonable doubt "'that the defendant's conduct involve[d] a high degree of likelihood that substantial harm will result to another,' or that it 'constitute[d] . . . a disregard of probable harmful consequences to another.'" Commonwealth v. Correia, 50 Mass. App. Ct. 455, 458 (2000) (citations omitted). See Commonwealth v. Gerhartsreiter, 82 Mass. App. Ct. 500, 515-516 (2012). Reckless behavior is that which, "[a]lthough the conduct is intended, the result is not." Commonwealth v. Welch, 16 Mass. App. Ct. 271, 276 n.5 (1983). See Commonwealth v. Sostilio, 325 Mass. 143, 145 (1949) ("Wanton or reckless conduct has been defined as 'intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another'") (citation omitted).
The defendant does not argue that the evidence was insufficient to prove the other elements of the offenses.
The evidence presented supports an inference that the defendant pursued the victim with his vehicle as she walked away. A rational jury could reasonably find that the defendant's conduct created a high likelihood of substantial harm and resulted in the defendant striking the victim with his vehicle. See, e.g., Commonwealth v. Merola, 405 Mass. 529, 533 (1989) (inferences "need only be reasonable and possible; [they] need not be necessary or inescapable") (citation omitted). The conflicting testimony that the victim jumped onto the defendant's moving vehicle created a question of fact for the jury to resolve. Inconsistencies in testimony presented at trial go to the weight and credibility of the evidence rather than its sufficiency. See Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).
Furthermore, the defendant's behavior after hitting the victim with his car supports an inference of consciousness of guilt. See Commonwealth v. Toney, 385 Mass. 575, 583-585 (1982).
Judgments affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 25, 2015.