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14-P-1965                                               Appeals Court

               COMMONWEALTH   vs.   NICOLAS DUTAN GUAMAN.


                              No. 14-P-1965.

            Worcester.     May 2, 2016. - August 17, 2016.

               Present:   Agnes, Massing, & Kinder, JJ.


Motor Vehicle, Operating under the influence,
     Homicide. Homicide. Wanton or Reckless
     Conduct. Evidence, Spontaneous utterance. Practice,
     Criminal, Required finding, Transcript of evidence,
     Duplicative punishment.



     Indictments found and returned in the Superior Court
Department on October 21, 2011.

     The cases were heard by David Ricciardone, J.


     Ethan C. Stiles for the defendant.
     Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.


     MASSING, J.    Following an afternoon of drinking beer, the

defendant, Nicolas Dutan Guaman, drove off in his pickup truck,

struck a motorcyclist, and continued to drive for several blocks

while dragging the victim to his death.        The defendant appeals
                                                                      2


from his convictions of manslaughter while operating a motor

vehicle under the influence of intoxicating liquor in violation

of G. L. c. 265, § 13½ (OUI manslaughter), felony motor vehicle

homicide in violation of G. L. c. 90, § 24G(a), and other

related charges. 1   He claims that the evidence was insufficient

to prove that he knowingly engaged in wanton or reckless conduct

to sustain his conviction of OUI manslaughter.    In addition, he

contests evidentiary rulings admitting the recording of a 911

call and an English translation of his video-recorded sobriety

tests.   We affirm, but because felony motor vehicle homicide is

a lesser-included offense of OUI manslaughter and the defendant

cannot be punished for both, we vacate the conviction and

sentence for felony motor vehicle homicide.

     Background.     As the defendant challenges the sufficiency of

the evidence, we recite the facts in the light most favorable to

the Commonwealth to determine whether a rational trier of fact

could find the defendant guilty of the charges beyond a

reasonable doubt.    See Commonwealth v. Latimore, 378 Mass. 671,

676-678 (1979); Commonwealth v. Giavazzi, 60 Mass. App. Ct. 374,


     1
       Reckless endangerment of a child, G. L. c. 265, § 13L;
leaving the scene of an accident causing death, G. L. c. 90,
§ 24(2)(a½)(2); failure to stop, G. L. c. 90, § 25; and
operating a motor vehicle without a license, G. L. c. 90, § 10.
The judge, sitting without a jury, found the defendant not
guilty on an indictment charging him with second degree murder,
G. L. c. 265, § 1.
                                                                     3


376 (2004) ("There must be adequate evidentiary support for each

essential element of the offense").

     At about 7:50 P.M. on August 20, 2011, the defendant,

driving his black Ford F-150 pickup truck with his six-year-old

son Jonathan and his brother as passengers, rolled through a

stop sign on Fayette Street in Milford.    Matthew Denice was

driving his motorcycle up Congress Street when the defendant's

truck pulled out in front of him.    As the victim quickly applied

his brakes, the front driver's side of the truck hit the

motorcycle.   Motorcycle and rider rolled over the hood of the

truck, crashed into the windshield, and landed on the

passenger's side.   After a moment's hesitation, the defendant

quickly accelerated and drove south on Congress Street.

     The victim, separated from his motorcycle, somehow got

tangled with his legs beneath the chassis of the truck.    A

number of people saw the defendant's truck drag the victim along

the street.   At first the victim banged on the truck and yelled

for the defendant to stop, but the truck continued moving down

Congress Street, turned right on West Street, and then attempted

to turn left on Bancroft Street.    The victim emitted

"bloodcurdling" screams as he was dragged along the road.      As

the truck drove on, dragging the victim for a nearly quarter of

a mile, several witnesses banged on the truck or yelled for the
                                                                    4


defendant to stop, but the defendant continued to drive,

outpacing the people who were trying to get his attention.

     Unable to turn left because of damage to the truck, the

defendant drove onto the curb, put the truck in reverse, and

then accelerated down Bancroft Street.    This manoeuver released

the victim, who was left lying in the street.   One of the first

police officers on the scene attended to the victim.   When the

officer removed the victim's helmet, he took a final breath and

died.

     Other officers pursued the defendant's truck.   He ignored

their lights and sirens and sped up.   At last the defendant

turned down a narrow street and the officers were able to force

his truck to a stop.   He did not respond to orders to get out of

the truck, so the officers pulled him out.   His eyes were

bloodshot and extremely glassy, he was unsteady on his feet, and

his breath smelled strongly of alcohol.   The interior of the

truck also reeked of alcohol and was littered with empty beer

cans, open cans that were still cold, and the remainder of a

thirty-pack of beer.

     During the course of the arrest the police realized that

the defendant did not speak English.   A Spanish-speaking

officer, Angel Arce, took over the arrest.   Arce had little

trouble communicating with the defendant, although it later

became known that the defendant was a native of Ecuador and
                                                                   5


spoke both the Quechua language and dialect of Spanish.   The

police took the defendant to the station, where Arce conducted

sobriety tests and then booking procedures, which were video

recorded.   The defendant was unable to follow instructions and

at one point informed Arce that he was having difficulty with

the tests because he had drunk six beers.

     The defendant had been drinking for several hours before he

hit the victim's motorcycle.   Earlier that afternoon, around

4:30 P.M., the defendant had driven his truck to his brother's

apartment in Milford and parked behind the building.   The

defendant brought Jonathan with him, as well as a supply of

beer.   He already appeared drunk.

     The defendant and his brother drank beer in and around the

truck and the back porch, while Jonathan played in the backyard

with his nine-year-old cousin Vivian (the defendant's brother's

step-daughter) and other neighborhood children.   After an hour

or two, in which the defendant drank at least five cans of beer,

the defendant, Jonathan, and his brother got in the truck to

drive away.   Concerned for her cousin's safety, Vivian told

Jonathan not to get into the truck because his father was drunk.

She also told the defendant not to take Jonathan.   When the

defendant nonetheless drove away with his son and brother,

Vivian, scared and worried that something would happen, called

her mother.   When her mother arrived home soon after, Vivian
                                                                     6


called 911 at 6:15 P.M. to report that the defendant was driving

drunk with her cousin in the truck.

     Discussion.    1.   Sufficiency of the evidence -- wanton or

reckless conduct.    General Laws c. 265, § 13½, inserted by St.

2005, c. 122, § 20 (known as "Melanie's Law"), punishes

"[w]hoever commits manslaughter while operating a motor vehicle

in violation of paragraph (a) of subdivision (1) of section 24

of chapter 90."    General Laws c. 90, § 24(1)(a), incorporated by

reference in the OUI manslaughter statute, punishes operating a

motor vehicle under the influence of intoxicating alcohol (OUI).

Thus, G. L. c. 265, § 13½, consists of the elements of

manslaughter plus the elements of OUI.

     On the facts of this case, as in most scenarios in which

OUI manslaughter would be charged, the crime requires proof of

involuntary manslaughter based on wanton or reckless conduct. 2

See Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 83 (2011).

The elements of involuntary manslaughter are (1) that the


     2
       "Alternatively, involuntary manslaughter may consist of a
battery causing death in circumstances in which the defendant
'is, or should be, cognizant of the fact that the battery he is
committing endangers human life.'" Commonwealth v. Knight, 37
Mass. App. Ct. 92, 103 (1994), quoting from Commonwealth v.
Catalina, 407 Mass. 779, 787 (1990). A violation of G. L.
c. 265, § 13½, could conceivably be proven under an involuntary
manslaughter theory of battery or under a voluntary manslaughter
theory of intentional infliction of injury, but such proof is
often unavailable when a drunk driver causes a homicide -- and
unnecessary when the driver's conduct is wanton or reckless.
                                                                   7


defendant caused the victim's death, (2) that the defendant

intended the conduct that caused the victim's death, and (3)

that the defendant's conduct was wanton or reckless.

See Commonwealth v. Welansky, 316 Mass. 383, 397 (1944)

(Welansky); Commonwealth v. Life Care Centers of America, Inc.,

456 Mass. 826, 832 (2010); Supreme Judicial Court Model Jury

Instructions on Homicide 75 (2013).

     The defendant challenges the sufficiency of the evidence

only with respect to the mens rea element of wanton or reckless

conduct (he does not contend that the evidence was insufficient

to prove that he caused the victim's death while OUI).      His

defense at trial was that he did not realize that he was

dragging the victim and that, because of language and cultural

barriers, he did not understand what the people on the street

were trying to communicate to him.    He asserts that the

Commonwealth failed to prove that he acted recklessly in that he

knowingly ran the risk that his conduct would result in the

victim's death.

     Proof of wanton or reckless conduct requires "more than a

mistake of judgment or even gross negligence."    Commonwealth

v. Michaud, 389 Mass. 491, 499 (1983).    Wanton or reckless

conduct is defined as "intentional conduct, . . . which conduct

involves a high degree of likelihood that substantial harm will
                                                                     8


result to another."    Welansky, supra at 399.   "What must be

intended is the conduct, not the resulting harm."     Id. at 398.

     The Commonwealth may prove wanton or reckless conduct under

a subjective standard, based on the defendant's specific

knowledge, or an objective standard, based on what a reasonable

person should have known under the circumstances.    Commonwealth

v. Pugh, 462 Mass. 482, 496 (2012).    "If based on the subjective

measure, i.e., the defendant's own knowledge, 'grave danger to

others must have been apparent and the defendant must have

chosen to run the risk rather than alter [his] conduct so as to

avoid the act or omission which caused the harm.'"     Id. at 497,

quoting from Welansky, supra.    "If based on the objective

measure of recklessness, the defendant's actions constitute

'wanton or reckless conduct . . . if an ordinary normal [man]

under the same circumstances would have realized the gravity of

the danger.'"    Id. at 496-497, quoting from Welansky, supra at

398–399.

     Here, a rational trier of fact (in this case, the trial

judge) could have found beyond a reasonable doubt that the

defendant intentionally drove his truck in a wanton or reckless

manner.    To begin, the defendant chose to drive after he was

visibly drunk and even his nine-year-old niece had warned him

not to take his son with him.    While evidence of the defendant's

drunkenness standing alone may not have been sufficient to prove
                                                                    9


wanton or reckless conduct where, as here, the separate element

of impairment must also be proven, but see Commonwealth

v. Scott, 359 Mass. 407, 410 (1971) (evidence sufficient "to

warrant the jury to find that in driving his automobile while

his mental and physical faculties were substantially impaired by

the effect of intoxicating liquor, the defendant committed a

wanton or reckless act"), the trier of fact may properly

consider the defendant's decision to drive while drunk as a

factor toward proof of recklessness.   See Commonwealth v. Dyer,

77 Mass. App. Ct. 850, 857 n.9 (2010).

     Furthermore, the defendant continued to drive his truck

after he hit the victim, causing the victim and his motorcycle

to roll over his hood and crash into the windshield.   Even if

the defendant did not actually apprehend the grave danger of

continuing to drive, any ordinary person in his circumstances

would have.   Notwithstanding banging on the truck by the victim

and witnesses, people yelling at him to stop, and the victim's

screams, the defendant drove on.   A rational trier of fact could

have found that the defendant intentionally ignored a plethora

of readily apparent warning signs.   Even if the judge credited

the defendant's claim that he did not understand what was

happening, the judge could have convicted based solely on the

determination that any reasonable person in the defendant's

place would have realized the danger of continuing to drive.
                                                                   10


The evidence was sufficient to convict the defendant of OUI

manslaughter.

     2.   Admissibility of 911 call as excited utterance.    The

defendant filed a motion in limine to exclude from evidence the

audio recording of the 911 call that his nine-year-old niece

Vivian made to the police shortly after she saw him drive off

with her six-year-old cousin as a passenger.   In connection with

the motion, the parties submitted a transcript of Vivian's

pretrial deposition.   Based on the deposition testimony, the

judge concluded that Vivian's concern for her cousin's safety

was sufficient "to constitute a level of excitement necessary"

to admit the call under the spontaneous utterance exception to

the hearsay rule. 3



     3
       A spontaneous utterance is admissible "if (1) there is an
occurrence or event 'sufficiently startling to render
inoperative the normal reflective thought processes of the
observer,' and (2) if the declarant's statement was 'a
spontaneous reaction to the occurrence or event and not the
result of reflective thought.'" Commonwealth v. Santiago, 437
Mass. 620, 623 (2002), quoting from 2 McCormick, Evidence § 272,
at 204 (5th ed. 1999). See Mass. G. Evid. § 803(2) (2016). To
determine whether a statement meets this test, a judge may
consider "the degree of excitement displayed by the person
making the statements, whether the statement is made at the
place where the traumatic even occurred or at another place, the
temporal closeness of the statement to the act it explains, and
the degree of spontaneity [shown by the declarant]."
Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 415 (2002)
(citations and quotations omitted). "[T]he statements need not
be strictly contemporaneous with the exciting cause; they may be
subsequent to it, provided there has not been time for the
exciting influence to lose its sway and be dissipated."
                                                                   11


     The dispatcher who received the call testified to

authenticate the recording, which was then admitted and played

for the judge.   The defendant renewed his objection.   Although

after listening to the recording the judge stated that Vivian

"seemed a little calmer than he expected," and that as the call

went on "she was responding to questions and, therefore,

reflecting on what she was saying, which is the antithesis of

excited utterance," he concluded that "on balance" her

motivation to make the call was her concern that her cousin was

in peril, and he held the recording to be admissible.

     The judge did not abuse his discretion in admitting the

recording.    See Commonwealth v. Simon, 456 Mass. 280, 296

(2010).   Nine-year-old Vivian took the extraordinary step of

calling 911 because she was concerned that her cousin was in

danger.   Her initial statements -- which included the only part

of the call admitted for its truth, the assertion that the

defendant was drunk -- up to her asking "What can we do?," were

made under the influence of the traumatizing event of watching

her cousin drive away with her drunk uncle.   Even responses to a

dispatcher's question may be admissible as spontaneous

utterances.   See Ibid.   To the extent the influence of the

traumatic event dissipated during the rest of Vivian's


Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973), quoting
from Wigmore on Evidence § 1750 (3d ed. 1961).
                                                                    12


conversation with the dispatcher and it no longer qualified as

an excited utterance, it was not hearsay either, as none of

Vivian's statements identifying the defendant and his vehicle

made assertions that were used at trial for their truth.

     Moreover, any error in admitting the call was not

prejudicial. 4   The Commonwealth produced ample evidence,

including Vivian's in-court testimony, that the defendant was

drunk.   The most devastating aspect of Vivian's call was not

that she said the defendant was drunk, but that she was so

worried about his driving in that condition that she felt the

need to place the call.    The content of the call had little, if

any, effect on the verdict.    See Commonwealth v. Flebotte, 417

Mass. 348, 353 (1994).

     4
       The recording begins with Vivian telling the dispatcher
that her stepfather was "drinking beer with his brother . . . in
the car and his brother has a little kid in the car and drinking
beers. . . . His brother is kind of drunk too, and his brother
has a kid, a little kid, that's kind of like six or five years
old." When asked, "What's the emergency?," Vivian said, "He's
like drunk." When the dispatcher first began to question
Vivian, she asked, "What can we do?" For the remainder of the
call, the dispatcher asked questions aimed at identifying the
vehicle and its occupants. Because Vivian testified at trial
and the defendant had an opportunity to cross-examine her, the
admission of the 911 call did not implicate constitutional
confrontation clause concerns. See Crawford v. Washington, 541
U.S. 36, 59 n.9 (2004); Commonwealth v. King, 445 Mass. 217,
236-237 (2005); Commonwealth v. Napolitano, 42 Mass. App. Ct.
549, 555 (1997). Because the defendant preserved his hearsay
objection at trial, "[w]e evaluate whether the admission of this
information, if classified as hearsay, could constitute
prejudicial error." Commonwealth v. McLaughlin, 79 Mass. App.
Ct. 670, 680 (2011).
                                                                    13


     3.   Translated transcript of stationhouse video.    The

defendant also contends that the judge erred in admitting four

pages of an English-language transcript of the video recording

of the defendant's sobriety tests at the police station,

conducted in Spanish, in which the defendant is reported to say,

"I had about six beers."

     Officer Arce, who conducted the sobriety tests and the

booking procedure, testified about his questions, the

defendant's answers, and how the defendant performed on each of

the tests.    Arce and the defendant were able to understand each

other, albeit with some difficulty.   The Commonwealth introduced

the videotape of the interview in evidence with no objection,

but when the Commonwealth sought to admit an English-language

transcript of the conversation, the defendant objected, relying

on the best evidence rule ("It's not the best evidence.    The

best evidence is the video"), and contending that Officer Arce

was not qualified to verify the translation of the defendant's

Spanish dialect.   On appeal, he makes the slightly different

argument that the Commonwealth was required to produce expert

testimony from a qualified translator in order to introduce the

transcript.   We discern no error.

     Contrary to the defendant's "best evidence" argument at

trial, when the Commonwealth seeks to introduce a recorded

statement in a language other than English, "the prosecutor may
                                                                       14


not offer the recorded statement in evidence without an English-

language transcript."       Commonwealth v. Portillo, 462 Mass. 324,

328 (2012) (Portillo).       "In these cases, the only evidence of

the content of the recorded words is the English-language

transcript, not the foreign language recording."       Ibid.

(Emphasis in original).

       Portillo set forth the procedure for the admission of

English-language transcripts.       First, "the prosecutor must

provide defense counsel an English-language transcript

sufficiently in advance of trial to enable defense counsel to

determine whether agreement can be reached regarding the

transcript or whether a translator should be retained to prepare

and defend a different English-language transcript."       Id. at

330.       If the parties are unable to agree on a translation, each

may offer its own transcript "through the testimony of a

translator who meets the criteria to be considered an expert in

the foreign language."       Id. at 329.

       The Commonwealth followed the Portillo protocol to the

letter, providing defense counsel with the video recording and

the transcript with its discovery materials on December 13,

2011. 5     On May 15, 2013, defense counsel obtained funds for an



       5
       By providing the defendant with its English-language
transcript on December 13, 2011, the Commonwealth actually
anticipated the rule announced in the Portillo decision, which
                                                                  15


interpreter to assist with trial preparation.    Thus, the

defendant had ample time and opportunity to review and verify

the translation, but he did not raise any objection until the

moment the prosecutor offered it in evidence at trial.    Even

then, he did not make any argument that the translation was

inaccurate or unreliable.   The prosecutor provided the

transcript to defense counsel well before offering it in

evidence, as the Portillo protocol requires, "leaving sufficient

time to resolve in advance of trial any questions regarding the

accuracy of the translation."   Id. at 332 (emphasis supplied).

The defendant raised his objection far too late to contest the

transcript's accuracy or to permit the Commonwealth to produce

an expert to verify it.   At this point in the trial, the judge

did not err or abuse his discretion in allowing the only

available translation in evidence.

     4.   Duplicative punishment.    Finally, the defendant

contends that his convictions of OUI manslaughter under G. L.

c. 265, § 13½, and of felony motor vehicle homicide under G. L.

c. 90, § 24G(a), violate the prohibition against "duplicative"




was issued on May 29, 2012. The trial in this case took place
in May, 2014, almost two years after publication of Portillo.
                                                                   16


convictions because felony motor vehicle homicide is a lesser-

included offense of OUI manslaughter. 6   We agree.

     A defendant may be punished for two crimes arising out of

the same conduct so long as each crime requires proof of an

element that the other does not.   See Morey v. Commonwealth, 108

Mass. 433, 434 (1871); Commonwealth v. Vick, 454 Mass. 418, 431-

432 (2009) (Vick); Commonwealth v. Flanagan, 76 Mass. App. Ct.

456, 462 (2010).   A lesser offense is considered duplicative of

a greater offense if all of its elements are included within the

greater offense.   Ibid.   But "[i]f the lesser crime requires

proof of an additional fact that the greater crime does not,

then it is not a lesser included offense of the greater

crime."   Commonwealth v. Murray, 51 Mass. App. Ct. 57, 60

(2001).   "As long as each offense requires proof of an

additional element that the other does not, "neither crime is a

lesser-included offense of the other, and convictions on both

are deemed to have been authorized by the Legislature and hence




     6
       OUI manslaughter is punishable by a state prison term of
up to twenty years, with a mandatory minimum term of five years.
See G. L. c. 265, § 13½. Felony motor vehicle homicide is
punishable by a state prison term of up to fifteen years or a
house of correction term of up to two and one half years. See
G. L. c. 90, § 24G(a). The judge sentenced the defendant to a
term of twelve to fourteen years on the manslaughter conviction
and a concurrent term of nine to ten years on the motor vehicle
homicide conviction.
                                                                   17


not [duplicative].'"   Vick, supra at 431, quoting

from Commonwealth v. Jones, 382 Mass. 387, 393 (1981).

     The defendant's conviction of OUI manslaughter required

proof of the elements of involuntary manslaughter -- (1) that

the defendant caused the victim's death, (2) that the defendant

intended the conduct that caused the victim's death, and (3)

that the defendant's conduct was wanton or reckless -- plus the

elements of OUI -- (4) that the defendant operated a motor

vehicle (5) on a public way (6) while under the influence of

intoxicating liquor (or with a blood alcohol level of .08 or

higher).   See G. L. c. 90, § 24(1)(a); Commonwealth v. Colturi,

448 Mass. 809, 817–818 (2007); Commonwealth v.    Filoma, 79 Mass.

App. Ct. 16, 20 (2011).   Felony motor vehicle homicide requires

proof that the defendant (1) on a public way (2) while operating

a motor vehicle (3) under the influence of intoxicating liquor

(or with a blood alcohol level of .08 or higher) (4) "operate[d]

a motor vehicle recklessly or negligently so that the lives and

safety of the public might be endangered" (5) causing the

victim's death.   G. L. c. 90, § 24G(a).   See Commonwealth

v. Diaz, 19 Mass. App. Ct. 29, 36-37 (1984) (Diaz); Commonwealth

v. Williams, 73 Mass. App. Ct. 833, 837-838 (2009).   As to the

element of operating recklessly or negligently, "[a] finding of

ordinary negligence suffices to establish homicide by motor

vehicle as defined in G. L. c. 90, § 24G."    Diaz, supra at 36.
                                                                     18


See Commonwealth v. Labelle, 67 Mass. App. Ct. 698, 699 (2006)

(Labelle), and cases cited.    The felony motor vehicle homicide

indictment in this case charged the defendant solely under a

theory of negligent operation.

     The two crimes share several elements:    both include the

three elements of OUI and the element of causing the victim's

death.   The single difference is that OUI manslaughter requires

proof that the defendant intentionally engaged in wanton or

reckless conduct, whereas felony motor vehicle homicide requires

only negligence. 7   Recklessness is intentional conduct;

therefore, to convict for involuntary manslaughter, or any other

crime requiring wanton or reckless conduct, the Commonwealth

must prove that the defendant intended the conduct -- though not

necessarily the result.    Welansky, 316 Mass. at 398.   See Model

Penal Code and Commentaries § 2.02 comment 3, at 236 (1985)

("recklessness involves conscious risk creation").    It is the

consciousness of the risk that defines recklessness whether the

defendant actually appreciates the danger he is causing or,

given his knowledge, should have appreciated the danger.    See

Criminal Model Jury Instructions for Use in the District Court

5.260 [Operating Recklessly] (2009) (Model Instructions) ("A


     7
       Had the Commonwealth proceeded on the felony motor vehicle
homicide charge under a theory of reckless operation, its
elements would have been identical to those of OUI manslaughter.
                                                                     19


person drives recklessly when he ignores the fact that his

manner of driving is very likely to result in death or serious

injury to someone, or he is indifferent to whether someone is

killed or seriously injured").

       Negligence, on the other hand, lacks the element of intent.

See Diaz, supra at 37 ("The essence of the offense of vehicular

homicide is negligence, i.e., an unintended act").    Indeed,

reckless operation is defined as going "beyond mere negligence."

Model Jury Instructions 5.260 ("It is not enough for the

Commonwealth to prove that the defendant acted negligently --

that is, acted in a way that a reasonably careful person would

not.    It must be shown that the defendant's actions went beyond

mere negligence and amounted to recklessness").    See

also Labelle, supra at 700 ("The instruction on reckless conduct

conveyed to the jury that to convict on the basis of reckless

operation, they were required to find a heightened level of

fault substantially in excess of ordinary negligence").

       Thus, the element of negligent operation in the crime of

motor vehicle homicide is included within the element of

reckless operation in the crime of OUI manslaughter.      "A juror

finding the defendant's operation of his motor vehicle to be

reckless implicitly must also have found his operation to be

negligent so as to endanger the lives or safety of the

public."    Id. at 699.   In proving that the defendant
                                                                     20


intentionally drove his truck in a wanton or reckless manner to

sustain his conviction of OUI manslaughter, the Commonwealth

necessarily proved that he operated the truck negligently.      As

all of the elements of felony motor vehicle homicide are

included within the elements of OUI manslaughter, it is a

lesser-included offense and the defendant's convictions for both

crimes are duplicative.    Accordingly, while we affirm the

defendant's conviction and sentence for OUI manslaughter, the

more serious offense, we must vacate the motor vehicle homicide

conviction and sentence.    See Commonwealth v. Valliere, 437

Mass. 366, 371-372 (2002).

     Conclusion.   The judgments on the indictments for OUI

manslaughter, reckless endangerment of a child, leaving the

scene of an accident causing death, failure to stop, and

operating a motor vehicle without a license are affirmed.     The

judgment of conviction of felony motor vehicle homicide is

reversed as duplicative, the verdict is set aside, and the

indictment is to be dismissed in the Superior Court.

                                     So ordered.
