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Appeals Court of Massachusetts.



Decided: April 13, 2021

By the Court (Milkey, Kinder & Sacks, JJ.1),


A Boston Municipal Court jury convicted the defendant of leaving the scene of property damage caused by a motor vehicle.2 On appeal, the defendant alleges that the evidence was insufficient, and that certain testimony was improper.

Background. We summarize the Commonwealth's evidence as follows. On October 13, 2010, Boston police Officer Paul Delaney was working a detail in the Dorchester section of Boston. He brought his own car to the scene, and he parked it along Centre Street. At one point, Delaney heard a loud “thump,” and immediately thereafter he saw a van being driven by the defendant passing by his parked vehicle. He then discovered a scratch on his car that was not there before. Delaney got into his car and followed the defendant's van, catching up to it some 500 yards away on a different street. He observed fresh property damage on the defendant's van that corresponded with that on his own car.

Discussion. Sufficiency. In assessing the sufficiency of the Commonwealth's evidence, we, of course, view that evidence in the light most favorable to the Commonwealth, including by drawing all reasonable inferences in the Commonwealth's favor. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The just-recited evidence provided ample circumstantial proof that while operating a motor vehicle, the defendant caused property damage, and failed to stop to provide his name, home address, and vehicle registration number. Indeed, the defendant makes no argument to the contrary. Thus, there is no dispute that the Commonwealth plainly satisfied three of the four elements it needed to prove to convict under G. L. c. 90, § 24 (2) (a).

The only element of the offense for which the defendant now maintains there was insufficient proof was that he knew that he had hit Delaney's car, causing property damage, when he left the scene. Based on Delaney's testimony, rational jurors could infer, beyond a reasonable doubt, that the defendant had seen, heard, or felt his van hit Delaney's car. The question then is whether the defendant's own evidence caused the Commonwealth's evidence to “deteriorate” so as to render the Commonwealth's evidence insufficient. See Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017).

The defendant testified in his own defense that he was deaf in one ear, and that at the time he passed Delaney's car, his radio was on and there were jackhammers going outside.3 Thus, there was evidence based on which the jury might have concluded that the defendant did not hear the “loud thump” that Delaney was able to hear, and otherwise was unaware that he had hit Delaney's car.

However, nothing required the jury to credit the defendant's testimony. In the face of conflicting evidence, it was for the jury to determine the facts. See, e.g., Commonwealth v. Platt, 440 Mass. 396, 400 (2003). The defendant's own testimony did not undermine the Commonwealth's case in a manner that required entry of a finding of not guilty. See Ross, 92 Mass. App. Ct. at 381, quoting Kater v. Commonwealth, 421 Mass. 17, 20 (1995) (“Deterioration occurs where ‘evidence for the Commonwealth necessary to warrant submission of the case to the jury is later shown to be incredible or conclusively incorrect’ ”).

Touching on defendant's guilt. The defendant separately argues that he is entitled to have his conviction vacated because of one aspect of Delaney's testimony. Specifically, the defendant argues that Delaney directly commented on his guilt by testifying that the defendant “was fleeing the scene and I wanted to get at least the license plate number of the vehicle so that I could put a report in with my insurance company.” We are unpersuaded by the defendant's argument that such testimony so directly commented on his guilt as to be improper. See Commonwealth v. Canty, 466 Mass. 535, 543 (2013). Moreover, the defendant lodged no objection to that testimony at trial, and, in our view, nothing about the testimony in any event created a substantial risk of a miscarriage of justice.

Judgment affirmed.


2.   The defendant was also charged with operating a motor vehicle while his license was suspended, but that charge was dismissed prior to trial.

3.   The defendant also testified that he was distracted by an unsecured lawn mower rolling around in the van.

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Docket No: 20-P-49

Decided: April 13, 2021

Court: Appeals Court of Massachusetts.

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