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Appeals Court of Massachusetts.



Decided: March 29, 2021

By the Court (Massing, Henry & Ditkoff, JJ.1)


The defendant, Michael J. Hennessy, appeals from his convictions of operating under the influence of alcohol, in violation of G. L. c. 90, § 24 (1) (a) (1); negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a); and leaving the scene of a motor vehicle accident after property damage, in violation of G. L. c. 90, § 24 (2) (a).2 We affirm.

Background. On July 29, 2018, two Winchester police officers responded to a call about a single-car accident. The officers arrived at the intersection of Swanton Street and Loring Avenue “[o]nly a few minutes” after receiving the call and observed a telephone pole with “heavy damage” and “debris from the pole and a motor vehicle.” They spent three to five minutes at the scene of the accident, and then followed a “fresh” trail of fluid on the road from the area of debris. The trail ended “[i]n the driveway” of 20 Arthur Street, where the officers observed a Jeep Cherokee that was “still leaking fluid, had heavy damage to the right passenger side, and damage to the windshield.” The windshield had a “spider-webbing” break.

The police officers then attempted to locate the driver, whom they believed to be injured because of the damage to the vehicle. The officers entered 20 Arthur Street, a two-family home, and knocked on the second-floor door. The officers talked to one resident of the second floor, who appeared to have just woken up, was clad only in boxer shorts, and did not appear to have been drinking. The officers knocked on the other unit door; nobody answered. One of the police officers went to the back of the house, where he found the defendant lying on cinder blocks. The defendant “had some lacerations to his cheek, and he appeared intoxicated, and you could smell the alcohol.” The defendant's eyes were “bloodshot and glossy” and he was “very unsteady on his feet.” The police officers did not ask the defendant to perform field sobriety tests at that time but called an ambulance to transport him to the hospital.

The Commonwealth introduced in evidence photographs and a diagram of the accident scene and a map of the town of Winchester including the intersection where the accident occurred. The Commonwealth's exhibits also included photographs of the Jeep, the registry of motor vehicles (RMV) record of the defendant, and his medical records from the night of the accident. The license plate in the photographs of the Jeep matched the license plate number of a Jeep registered to the defendant. The defendant's address on the RMV records and the address at which the Jeep was registered both matched the address at which the defendant and the Jeep were found on the night in question.

At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty on all three charges, contending that the Commonwealth had not introduced sufficient evidence that he operated the motor vehicle. The judge denied the motion. The defendant rested without presenting evidence and renewed the motion.

Discussion. “When reviewing the denial of a motion for a required finding of not guilty, ‘we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378 (2017), quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017).

“As the Commonwealth did in this case, it may rely wholly on circumstantial evidence.” Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Ross, 92 Mass. App. Ct. at 378, quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016). “This principle is no less true in a case like this in which proof of an essential element of the offense (operation) rests entirely on circumstantial evidence.” Commonwealth v. Beltrandi, 89 Mass. App. Ct. 196, 198 (2016). “A web of convincing proof can be made up of inferences that are probable, not necessary, Commonwealth v. Hilton, 398 Mass. 63, 67 (1986),” however, such an inference “is not reasonable if the fact finder must resort to ‘speculation, conjecture or surmise,’ Commonwealth v. Shea, 324 Mass. 710, 714 (1949).” Beltrandi, supra at 199-200.

A rational trier of fact could have found beyond a reasonable doubt that the defendant operated the motor vehicle. Within approximately fifteen minutes of the one-car accident, the Jeep and the defendant were found at the same address, the defendant's residence, and the place where the Jeep was registered. The Jeep was leaking the fluid that led from the accident to the defendant's residence. In addition, while there was no evidence whether the defendant had the Jeep's keys, the defendant had facial lacerations consistent with the damage to the windshield of the Jeep. See Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 & n.6 (2011) (sufficient evidence of operation where truck was registered to defendant and he was in close proximity, there were fresh tire tracks on lawn, burning scent coming from vehicle, and no reason to suggest anyone else had operated truck); Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006) (sufficient evidence of operation where car on lawn still warm when police arrived, defendant was registered owner, lived in neighborhood, and appeared at scene intoxicated with keys to car shortly after police arrived). “This is not a case in which the evidence limited the jury to ‘a choice between, at the very most, equal inferences.’ ” Beltrandi, 89 Mass. App. Ct. at 201, quoting Commonwealth v. Mullen, 3 Mass. App. Ct. 25, 27 (1975). The jury were “not required to make a ‘leap of conjecture’ to infer the defendant was the operator of the vehicle.” Id. at 202, quoting Commonwealth v. Latney, 44 Mass. App. Ct. 423, 426 (1998). We conclude that this evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove beyond a reasonable doubt that the defendant operated the motor vehicle.

Judgments affirmed.


2.   The defendant was also found responsible for a civil motor vehicle infraction, a marked lanes violation. See G. L. c. 89, § 4A. The defendant presents no argument about this infraction.

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