Opinion
14-P-1512
05-26-2015
COMMONWEALTH v. BARNABE NAHIMANA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant, Barnabe Nahimana, was convicted of operating under the influence of alcohol, in violation of G. L. c. 90, § 24(1)(a)(1), and was found responsible on a marked lanes violation under G. L. c. 89, § 4A. On appeal, the defendant asserts that the trial judge erroneously denied his motion for a required finding of not guilty and that the evidence presented by the Commonwealth as to his intoxication was insufficient as a matter of law because he did not take a breathalyzer test and did not perform any field sobriety tests. We disagree and therefore affirm the conviction.
Conducted with the assistance of an interpreter in Kinyarwanda, a language spoken in Rwanda.
He was sentenced on the former charge to a term of probation for one year, assessed the statutory fees, fines, and costs, and ordered to complete the G. L. c. 90, § 24D, alcohol safety education program.
Background. Just after midnight on November 23, 2012, an off-duty Massachusetts state trooper pulled over the defendant, who was driving twenty-five miles per hour on Route 128 in Dedham. The speed limit on that roadway is fifty-five miles per hour. Trooper Bukhenik testified that this slow speed caused other cars to slam on their brakes or swerve to avoid the defendant. He also observed the defendant's car straddling the left dashed line in its lane and cross up to seventy-five percent into the left lane without signaling, then returning back to its own lane of travel. The trooper activated his emergency siren and proceeded to pull the defendant over to the side of the road, but the defendant did not pull entirely into the breakdown lane and still had the left side quarter panel of his vehicle protruding in the right travel lane. Approaching from the passenger side, the trooper detected a strong odor of an alcoholic beverage coming from the vehicle. Upon conversing with the driver, the trooper noticed that the defendant's speech was slurred and his eyes were glassy and bloodshot. The trooper then asked him if he had consumed alcohol, to which he responded that he had consumed "two beers." The trooper observed that the defendant spoke with an accent, but seemed to understand English and spoke English.
Soon after, Trooper Newton arrived on the scene and the defendant was asked to step out of the car. He appeared to have trouble maintaining his balance, and was swaying back and forth. At that point he was placed under arrest, and attempted to grab the guard rail. The troopers then guided the defendant to the ground where they placed handcuffs on him. No field sobriety tests or breathalyzer test were conducted. As the defense elicited on cross-examination, the troopers did not know whether the defendant had any foot or leg injuries. Trooper Bukhenik testified that based on his training and experience, the defendant was intoxicated.
Discussion. a. Standard of review. At the close of evidence, the defendant moved for a required finding of not guilty, which was denied. On appeal the defendant maintains that without evidence of the results of a breathalyzer test or field sobriety tests, the Commonwealth's evidence was insufficient to warrant the conclusion that he was impaired due to the consumption of alcohol. In reviewing the denial of a motion for a required finding of not guilty, we determine whether the evidence, in the light most favorable to the Commonwealth, is sufficient to permit the trier of fact to "have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under this standard, "we do not weigh the supporting evidence against conflicting evidence." Commonwealth v. Merry, 453 Mass. 653, 660 (2009).
b. Sufficiency of the evidence of impairment. "[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. Connolly, 394 Mass. 169, 173 (1985). "Proof of drunkenness is not required." Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
In this case, the Commonwealth presented sufficient evidence of impairment. Trooper Bukhenik observed the defendant operating his car on a major highway traveling only twenty-five miles per hour when the speed limit was fifty-five miles per hour. He also observed him swerving over the marked lane and into the left travel lane. Once pulled over, the car smelled of an alcoholic beverage, the defendant was slurring his speech and his eyes were bloodshot and glassy. The defendant told the trooper that he had consumed "two beers." Once Trooper Newton arrived on scene and the defendant was asked to step out of the car, he appeared to have trouble maintaining his balance, and was swaying back and forth. Taken in the light most favorable to the Commonwealth, that evidence is sufficient to permit the trier of fact to have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Bryer, 398 Mass. 9, 10-11, 17 (1986); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011). See also Commonwealth v. Sudderth, supra ("The opinion testimony of police who observed the defendant may also be taken into account").
In relying on Commonwealth v. Navarro, 39 Mass. App. Ct. 161 (1995), with regard to the sufficiency of the circumstantial evidence, the defendant omits to acknowledge that the Supreme Judicial Court criticized the analysis in that case (and others like it) and declined to follow its reasoning. Commonwealth v. Gonzalez, 452 Mass. 142, 149-151 (2008).
Judgment affirmed.
Finding of responsible affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: May 26, 2015.