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Appeals Court of Massachusetts.



Decided: November 02, 2021

By the Court (Sullivan, Sacks & Shin, JJ.1)


A Superior Court jury convicted the defendant of leaving the scene of an accident causing personal injury. See G. L. c. 90, § 24 (2) (a1/212) (1).2 The defendant's argument on appeal is that the evidence was insufficient to prove that he knowingly caused injury to another person, which he maintains is a necessary element of the crime.

The defendant's reading of the statute is contrary to its plain language, which criminalizes leaving the scene of an accident “after knowingly colliding with or otherwise causing injury to any person not resulting in death” (emphasis added). G. L. c. 90, § 24 (2) (a1/212) (1). “[T]he provisions in regard to ‘knowingly colliding with’ and ‘[knowingly] causing injury to,’ being stated disjunctively, describe alternative grounds for a conviction and not two elements of a crime both of which must be proved to support a conviction.” Commonwealth v. McMenimon, 295 Mass. 467, 469 (1936). The judge here instructed the jury in accordance with the statutory language. Thus, so long as the Commonwealth proved that the defendant knowingly collided with another person, this element of the offense was established regardless “whether the defendant knew that any person was injured by the collision.” Id. at 470.

Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was as follows. On October 18, 2018, Calvin Garcia was riding a bicycle in the Roxbury section of Boston when he was struck by a pickup truck driven by the defendant. Garcia was “bumped off” his bicycle but was uninjured. The defendant did not stop, but Garcia spotted the truck a “moment” later and approached the passenger's side window to request the defendant's information. Refusing to give his information, the defendant drove off while Garcia held onto the truck through the passenger's side window. The defendant drove down several streets with Garcia still attached to the truck and “begging” the defendant to stop. Eventually, when Garcia tried to grab the defendant's phone from the center console, the defendant “threw a punch” and “hit the gas at the same time,” ejecting Garcia from the truck. Garcia fell hard to the ground, hitting his back on the side of the truck on his way down. As he landed, the right rear tire of the truck ran over his arm, severely fracturing it. Garcia passed out, and, when he regained consciousness, the defendant was gone.

This evidence was sufficient to prove that the defendant knowingly collided with another person. A reasonable juror could have found that the defendant knew that his act of hitting the gas caused Garcia to be ejected forcefully from the truck and to collide with it.3 The defendant's suggestion that Garcia was at fault for the accident (because he chose to hold onto the truck despite having opportunities to let go) is immaterial to whether the evidence was sufficient. “It is well established that fault is not a determining factor; rather, we look to whether the defendant was in some way an actor, not a mere participant.” Commonwealth v. Constantino, 443 Mass. 521, 528 (2005). See Commonwealth v. Robbins, 414 Mass. 444, 448 (1993), quoting Commonwealth v. Bleakney, 278 Mass. 198, 202 (1932) (jury could have found knowing collision, regardless whether victim was injured from being hit by defendant's truck or from jumping from truck while it was moving, because under either theory “defendant was ‘in some way the actor, not a mere passive participant’ ”). Regardless of fault, the defendant was an actor in the collision, and the evidence was sufficient to sustain his conviction.

Judgment affirmed.


2.   The jury acquitted the defendant of assault and battery and of assault and battery by means of a dangerous weapon causing serious bodily injury.

3.   The Commonwealth contends that the jury's verdict is also supported by the evidence of the collision between the defendant's truck and Garcia's bicycle. This was not the Commonwealth's theory at trial, and we need not address it.

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