Opinion
No. 12–P–820.
2013-03-15
COMMONWEALTH v. Hud D. BYNUM.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a District Court jury of operating a motor vehicle while under the influence of intoxicating liquor, fifth offense. Claiming that the Commonwealth failed to prove beyond a reasonable doubt that he was under the influence, the defendant had moved at trial for a required finding of not guilty, which was denied. He now appeals.
In reviewing a denial of a motion for a required finding of not guilty, “[w]e consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Cordle, 412 Mass. 172, 174 (1992).
The defendant contends that the Commonwealth did not meet its burden because its only witness, a State trooper, gave highly self-contradictory testimony. We disagree.
“[I]n a prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely. The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely.”
Commonwealth v. Kendall, 451 Mass. 10, 13 (2008), quoting from Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). To support his contention that the testimony was self-contradictory, the defendant points to the following evidence, drawn from the trooper's testimony: the defendant did not swerve or drift into different lanes while driving; the defendant reacted normally to the police cruiser's blue lights; during field sobriety tests, the defendant presented “as a perfectly balanced, perfectly straight human being”; the defendant also did not sway while standing and listening to the trooper; and during the heel-to-toe test, the defendant walked a “perfectly straight line.”
Despite the evidence listed above, the trooper also presented testimony that would allow the jury to conclude that the defendant was under the influence of intoxicating liquor. The trooper testified that he smelled an “overpowering” odor of alcohol on the defendant's person and breath and that the defendant's eyes were glossy and bloodshot. He also testified that the defendant struggled with many of the field sobriety tests. For example, while reciting the alphabet, the defendant recited “A” through “F,” but then skipped to “P.” The defendant started over. Again, he recited “A” through “F,” but then skipped to “R.” Similarly, when asked to count backwards from 40 to 20, the defendant managed to count from 40 to 36, but then skipped to 31. The defendant retreaded to 38 and successfully counted down to 36. But then he skipped down to 28, then to 21, and then jumped back up to 38 before stopping completely. Finally, the trooper instructed the defendant to stand on one leg and count to 30. The defendant made it to 4 before he lost his balance and had to put his foot back down on the ground. The defendant restarted and successfully counted from 1 to 10, but he failed to raise his leg on this second attempt.
Based on the totality of the trooper's testimony, a rational jury could have found beyond a reasonable doubt “that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely.” Kendall, supra. See Cordle, supra; Commonwealth v. Ferreira, 77 Mass.App.Ct. 675, 678 (2010) (“To the extent that there were any inconsistencies or contradictions ..., they only would affect the weight and credibility of the evidence, which are matters within the jury's province to resolve”). And on the facts of this case, the jury so found. We therefore affirm.
Judgment affirmed.