Opinion
14-P-144
11-18-2014
COMMONWEALTH v. LISA D. RUFFIN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24(1)(a)(1). On appeal, she argues that her motion for a required finding of not guilty should have been allowed. We affirm.
The Commonwealth's case. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following facts. On January 19, 2009, at approximately 8:00 P.M., Officer Donna McNamara of the Stoughton police department was dispatched to Jimmy's Market, a convenience store in Stoughton. McNamara found the defendant's vehicle in the public parking lot in front of the store. The defendant, the sole occupant of the vehicle, was in the driver's seat and slumped over the steering wheel, and McNamara heard the vehicle's engine running.
McNamara knocked on the driver's side window, but the defendant was unresponsive and struggled to wake up. When McNamara asked the defendant to open the driver's window, she was unable to do so; instead, she repeatedly hit the door lock/unlock button. McNamara then asked the defendant to step out of the car. When the defendant opened the door, McNamara saw a small, empty, open bottle of wine between the door and the driver's seat. The defendant grabbed the bottle and placed it in the center console.
When the defendant emerged from the vehicle, she had to steady herself against the officer's cruiser. The defendant asked why the officer was bothering her and stated that she was waiting for her son to get home from basketball practice. McNamara noticed that the defendant's eyes were bloodshot and glassy and that she smelled of alcohol. The defendant admitted having consumed one small bottle of wine. At McNamara's request, the defendant attempted a one-legged stand; however, she was unable to complete it. After forming the opinion that the defendant was intoxicated, McNamara placed her under arrest.
Discussion. The Commonwealth was required to establish that the defendant operated a motor vehicle, on a public way, and while under the influence of intoxicating liquor. Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). Here, the defendant does not dispute that the convenience store parking lot, which was open to members of the public, qualified as a public way; however, she challenges the sufficiency of the evidence as to the other two elements.
There is no merit to the defendant's position. Along with the unaccompanied defendant's presence in the driver's seat, the officer's testimony that she heard the engine running was sufficient to prove the defendant's operation. See Commonwealth v. Eckert, 431 Mass. 591, 599 (2000). See also Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 646 (2011), quoting from Commonwealth v. Uski, 263 Mass. 22, 24 (1928) ("[A] person operates a motor vehicle within the meaning of G. L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle"). Likewise, the officer's testimony about the defendant's appearance, condition, and behavior, the discovery of the empty wine bottle and the defendant's attempt to remove it from sight, and the defendant's inability to perform a one- legged stand sufficed to prove that the defendant was under the influence of intoxicating liquor.
It matters not that the defendant gave contradictory testimony on these issues. The inconsistencies did not render the Commonwealth's evidence legally insufficient, but only raised issues of credibility for the jury to decide. See Commonwealth v. Cartwright, 447 Mass. 1015, 1016-1017 (2006).
Judgment affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 18, 2014.