Opinion
15-P-1688
08-08-2016
COMMONWEALTH v. JONATHAN FERREIRA.
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
The defendant, Jonathan Ferreira, appeals from the judgments after his convictions of operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). He contends that the evidence was insufficient to prove that he committed the offenses charged in the complaint, and that the judge erred in denying his motion for required findings of not guilty, because while the complaint correctly alleged that the offenses occurred on May 12, 2013, the Commonwealth's witnesses mistakenly testified that the conduct occurred on March 12, 2013. We affirm.
"In general, a crime must be proved as charged and must be charged as proved." Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). However, "a variance between the allegations and proof shall not be a ground for the defendant's acquittal 'if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defence.'" Commonwealth v. Day, 387 Mass. 915, 922 (1983), quoting from G. L. c. 277, § 35.
The date of the offense is not an essential element of the crime of OUI or negligent operation of a motor vehicle. See Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995) (listing elements of OUI); Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004) (listing elements of negligent operation of motor vehicle). Thus, the discrepancy between the date alleged in the complaint and the date proved at trial was not material to the defendant's guilt of the crimes charged. See Commonwealth v. Campiti, 41 Mass. App. Ct. 43, 50 (1996) ("The time alleged for an offense is ordinarily treated as a matter of detail rather than substance"); Commonwealth v. Megna, 59 Mass. App. Ct. 511, 514-515 (2003) ("although there was a variance between the proof and the indictment, the variance was not material").
"Accordingly, the time discrepancy may be a ground for acquittal only if the defendant was prejudiced." Id. at 515. The defendant has not demonstrated that his defense was prejudiced by the date discrepancy. He was not misled or surprised, and the Commonwealth's apparent error as to the date of the conduct did not in any way affect his defense. See Commonwealth v. Kope, 30 Mass. App. Ct. 944, 945 (1991). "[I]n the absence of prejudice the defendant [is] not entitled to an acquittal even if the [trier of fact] found a variance between the date alleged in the [complaint] and the date proved." Day, supra.
We are not persuaded by the defendant's argument that G. L. c. 277, § 35, applies only when the error is in the complaining document, or only in cases where the variance is a matter of days not months, rather than, as here, where the error appears to have been in the evidence presented at trial. Whether the date is included in the charging document or in the evidence proved at trial, "unnecessary specifics about the crime alleged beyond the bare elements" are superfluous and do not provide the basis for an acquittal in the absence of prejudice. Commonwealth v. Geane, 51 Mass. App. Ct. 149, 152 (2001).
Judgments affirmed.
By the Court (Vuono, Massing & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: August 8, 2016.