Opinion
16-P-1062
05-30-2017
COMMONWEALTH v. Angel L. FUERTE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in the District Court, the defendant was convicted of: 1) leaving the scene of an accident that caused property damage, and 2) operating a motor vehicle after a license suspension for operating a motor vehicle under the influence. On appeal, he raises three arguments regarding the sufficiency of the evidence. For the reasons that follow, we reverse the judgment on count 1, leaving the scene of an accident, and affirm the judgment on count 2, operating a motor vehicle after a license suspension for operating under the influence.
Background. Based on the trial evidence, the judge could have found the following facts.
1. 2013 license suspension. On April 7, 2013, the defendant was arrested in Newton on a number of driving-related charges including operating under the influence, third offense. His license was "taken [at] arrest." As documented by records from the Registry of Motor Vehicles (RMV), the defendant's license was suspended for five years (that is, until April 7, 2018) because of his refusal to take a breathalyzer test. See G. L. c. 90, § 24(1)(f )(1).
A change of plea hearing was held in the 2013 case on August 26, 2013. As the transcript of that hearing indicates, the judge rejected the initial plea agreement the Commonwealth and the defendant had reached. She then detailed the disposition that she would accept, as follows:
"I'd give [the defendant] one year house of correction[ ], six months to serve, of which 150 days are mandatory; three years probation with the 24Q evaluation and any follow-up treatment recommended; and, of course, the eight year loss of license, which would be the Registry of Motor vehicles."
After conferring with his counsel, the defendant then accepted the offered disposition and pleaded guilty. The docket reflects both "notice of loss of license" and "[eight] yr. LOL."
The record includes a copy of a letter from the RMV to the defendant dated August 28, 2013 (that is, two days after the change of plea hearing in the 2013 case). That letter states: "You are hereby notified that effective 04/06/18, your license/right to operate a motor vehicle is revoked for an additional [eight] years for DWI liquor." The Commonwealth did not supply any evidence regarding its notice or mailing procedures for such notices.
2. 2014 charges. On July 14, 2014, the defendant was involved in a car accident in Waltham. The car that he was driving rear-ended a car that had stopped at an intersection. The only eyewitness who testified was the passenger of the car that was hit. She described the accident as follows: "We were stopped at the traffic light, and all of a sudden a car hit from behind and—kind of stunned us. You know, it frightened me. Didn't really hurt me." The prosecutor then asked the passenger: "Where in your car was hit?" The eyewitness answered, "Right—I would say, directly across the whole back bumper. It wasn't to the left side or the right, where it broke a taillight, so it had to hit the whole bumper, hard—" The eyewitness was never asked whether there was any damage to the car.
Both parties interpret the reference to a broken taillight as an example of damage that did not happen. We do as well.
The trial was extremely brief. The eyewitness's testimony totaled fewer than five transcript pages, and the entirety of the testimony from the Commonwealth's three witnesses totaled twenty-one pages.
The defendant left the scene without providing any information to those in the other car, but he was apprehended by police shortly thereafter. The police "ran the license plate and found that [the defendant's] license was suspended." The defendant admitted to police to driving the car at the time of the accident and to leaving the scene of the accident. The police cited him for the infractions for which he eventually was convicted.
Discussion. 1. Leaving the scene. A defendant cannot be convicted of leaving the scene of an accident that caused property damage absent proof of such damage. Commonwealth v. Velasquez, 76 Mass. App. Ct. 697, 699-701 (2010) (where defendant's car had crashed into telephone pole, but there was no evidence that the accident damaged the pole, conviction for leaving scene of an accident causing property damage overturned). As the parties agree, there was no direct proof of damage to the eyewitness's car here. The Commonwealth is left to argue that a rational fact finder could infer that such damage occurred from the eyewitness's testimony that the defendant's car hit her car's bumper in a "sudden" and "hard" manner that "stunned" and "frightened" her.
Dicta in Velasquez that the Commonwealth must prove that operation of a motor vehicle on a public way has since been abrogated by Commonwealth v. LeBlanc, 475 Mass. 820, 824 & n.7 (2016). However, Velasquez otherwise stands.
As we have recognized, it is "conceivable" that evidence as to "the nature of the collision might alone suffice to support a rational inference that damage inevitably resulted." Id. at 701. However, the eyewitness's testimony does not come close to meeting that standard. This is particularly true given that her conclusion that the defendant's car "had to hit the whole bumper"—a statement that she made directly after noting the absence of damage such as a broken taillight—suggests an absence of observable damage to the bumper. See Commonwealth v. Oyewole, 470 Mass. 1015, 1017 (2014) (in considering what reasonable inferences could be drawn from evidence in assessing its sufficiency, taking into account uncontested evidence that pointed in the other direction). In sum, the demonstrated likelihood that the accident caused damage to the bumper is not sufficient to supply proof beyond a reasonable doubt that such damage in fact did occur. Because there was insufficient evidence to prove an element of the offense of leaving the scene of an accident causing property damage, we reverse the conviction, set aside the verdict, and direct that judgment enter for the defendant on that charge.
In addition, as the defendant has pointed out, while the eyewitness did say "hard," the prosecutor interrupted her before she was able to reveal how she was using that word. Indeed, it is even possible that the eyewitness was in the midst of saying "hardly," not "hard."
We observe, as we did in Velasquez, supra at 701, that our holding places "very little burden" on the Commonwealth. Indeed, the prosecutor here simply could have asked the eyewitness if there was any damage to the car but—for whatever reason—did not do so.
2. Operating a vehicle after a license suspension for an OUI. On the second count, "the Commonwealth was obligated to prove, beyond a reasonable doubt, (1) that the defendant operated a motor vehicle; (2) that at the time of that operation the defendant's license was revoked or suspended; (3) that the license suspension or revocation was pursuant to a violation of one of the specified statutory sections (including [OUI] in violation of G. L. c. 90, § 24 [1][a ] ); and (4) that the defendant was notified that his license had been suspended or revoked." Oyewole, supra at 1016 (quotation omitted). The defendant concedes that there was sufficient proof that he drove his vehicle while his license was suspended, and that the first two elements were satisfied. He challenges the sufficiency of the proof of the last two elements, which we address in turn.
a. Nature of the suspension. The defendant argues that, at the time of the incident, his license was under suspension, not for the 2013 OUI conviction, but for other reasons. He maintains there is an RMV document in the record stating that his eight-year license suspension for the 2013 OUI conviction is not "effective" until April 6, 2018. However, regardless of what the RMV notice stated, the statute itself commands that an OUI conviction "shall revoke the license or right to operate of the person so convicted" (subject to an exception not here relevant). G. L. c. 90, § 24(1)(b ), as amended through St. 1982, c. 373, § 3. The statute goes on to preclude the RMV from restoring the license before a specified period of time "after the date of conviction." See DiGregorio v. Registrar of Motor Vehicles, 78 Mass. App. Ct. 775, 779-780 (2011) (explaining statutory scheme). Where, as here, the driver had two OUI convictions prior to his 2013 conviction, the RMV is prohibited from restoring the license for "eight years after the date of conviction." Id. at 780, citing G. L. c. 90, § 24(1)(c ).
Therefore, by operation of law, the defendant's license was suspended for the 2013 OUI offense upon his conviction, and the RMV was prohibited from restoring his license for the next eight years. It follows that his license was under suspension for an OUI at the time of the 2014 incident, regardless of whether, for administrative purposes, the RMV chose to characterize that suspension as becoming effective at a later date. The fact that the defendant's license simultaneously was under suspension for other reasons is beside the point.
The validity of the RMV's policy of treating one license suspension as tacked onto another is not directly before us. We do reiterate that even if the period during which the RMV is barred from restoring the defendant's driver's license began to run from the date of his 2013 OUI conviction, this does not mean that he therefore automatically would be entitled to get his license back when the statutory bar period expired. See DiGregorio, supra at 783 (declining to address "the extent of the registrar's discretion to refuse to restore [the driver's] license after [the date the automatic bar period ran out]").
b. Notice of the suspension. The defendant additionally argues that the Commonwealth provided insufficient proof that he had been notified that his license was suspended at the time of the accident. He argues that the nature and quantum of proof on this point is comparable to that of Oyewole, supra. For the reasons that follow, we are unpersuaded.
In Oyewole, 470 Mass. at 1015-1016, the Commonwealth had sought to prove notice by relying solely on records from an earlier court proceeding that indicated that the defendant's license had been suspended. There was no transcript or other showing that the defendant had been notified of that disposition in that earlier court proceeding. See id. at 1016. Moreover, the court in Oyewole found it significant that there was some affirmative evidence there that the defendant was not aware that his license had been suspended (since he had a license on him when he was stopped). See id. at 1017.
Here, by contrast, the admitted records indicate that the defendant's license had been taken from him when he was arrested in 2013, and the transcript of the change of plea hearing in the 2013 case specifically documents that he was told, and had accepted, that he would lose his license for eight years if he agreed to the disposition offered by the judge. Unlike in Oyewole, there was ample proof here that the defendant had been given notice that his license was under suspension for the relevant period.
To the extent that the wording of the multiple RMV notices might have created some confusion as to the precise nature of the various license suspensions in effect as of the date of the 2014 incident, this is beside the point. So long as the defendant's license was suspended for an OUI conviction at the time he was operating, and he had notice that his license was under suspension at that time, that is sufficient. See Oyewole, supra at 1016 (laying out the elements). Whether the defendant was led to believe that the license suspension for an OUI conviction was not yet in effect is immaterial.
--------
Conclusion. On count 1, leaving the scene of an accident causing property damage, we reverse the judgment, set aside the verdict, and order that judgment for the defendant be entered on that charge. On count 2, operating a motor vehicle with a suspended license for an OUI conviction, we affirm the judgment.
So ordered.
Affirmed in part, reversed in part.