Opinion
19-P-453
01-27-2020
COMMONWEALTH v. Willie BETHUNE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury found the defendant, Willie Bethune, guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI); unlicensed operation of a motor vehicle; and resisting arrest. On appeal, Bethune claims that there was insufficient evidence to support the OUI and unlicensed operation convictions and that, prior to trial, the motion judge erred by denying his motion to dismiss the OUI charge. For the reasons that follow, we order that judgment enter for the defendant on the charge of unlicensed operation, and affirm the judgments on the remaining charges.
Bethune does not appeal from the judgment on the resisting arrest charge.
Background. We summarize the evidence presented at trial, and the reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On January 13, 2017, Massachusetts State Police Trooper Thomas Mace initiated a motor vehicle stop after he observed Bethune driving with a defective headlight. After Bethune told Trooper Mace that he did not have his license, Mace conducted a Criminal Justice Information System (CJIS) computer inquiry that led him to believe that Bethune's license was expired and nonrenewable. Trooper Mace observed Bethune to have bloodshot and glassy eyes and slurred speech, and smelled a strong odor of alcohol emanating from Bethune's vehicle. After an unsatisfactory performance by Bethune in field sobriety tests, Trooper Mace formed the opinion that Bethune was intoxicated. Trooper Mace then attempted to place Bethune in his cruiser, but ultimately required the assistance of two other officers because Bethune refused to cooperate.
Discussion. 1. Unlicensed operation. Bethune contends that the evidence adduced at trial was insufficient to support the unlicensed operation of a motor vehicle conviction. We agree. As a preliminary matter, the Commonwealth argues that, since the conviction for unlicensed operation of a motor vehicle was placed on file by the judge, Bethune's right to appeal the conviction is suspended for as long as the case remains on file. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975). Where there is no showing of a defendant's affirmative assent to the filing of a conviction, however, we may consider the filed conviction. See Commonwealth v. Paniaqua, 413 Mass. 796, 797 n.1 (1992) ; Commonwealth v. Nowells, 390 Mass. 621, 629-630 (1983). Here, the transcript is ambiguous as to whether the defendant consented to the filing of the conviction. We therefore address Bethune's appeal.
In placing the conviction on file, the judge stated: "Guilty with the Defendant's consent, I'll place the matter in file, Count II." Counsel for both the Commonwealth and the defendant responded, "Thank you, Your Honor."
When reviewing a claim of insufficient evidence, we consider whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, 378 Mass. at 677. To support a conviction of the unlicensed operation of a motor vehicle under G. L. c. 90, § 10, the Commonwealth must prove that the defendant was operating a motor vehicle without being "licensed by the registrar," G. L. c. 90, § 10, first par., or, as relevant here, at a time when his license was "suspended or revoked" and had "not been restored or a new license [had] not been issued to him." G. L. c. 90, § 10, second par.
Here, since the Commonwealth argued its case under G. L. c. 90, § 10, second par., in fairness, the Commonwealth was required to establish that the defendant had notice of the suspension. See c. 90, § 10, second par. (imposing same penalties as for violation of G. L. c. 90, § 23, operating after license suspension or revocation). Compare Commonwealth v. Parenteau, 460 Mass. 1, 5-6 (2011). In any event, as we shall discuss, none of the documents introduced by the Commonwealth established that the defendant's license was suspended on the day he was apprehended.
At trial, the Commonwealth offered three documents from the registry of motor vehicles (registry) to show that Bethune's license had been suspended at the time of the traffic stop: a letter addressed to the defendant dated November 15, 2016, a mailing confirmation document, and a notice of suspension certification that the Worcester District Attorney's office had requested from the registry. None of these documents, however, show that Bethune's license was suspended or otherwise inactive, or that Bethune had notice of any such suspension, prior to Trooper Mace pulling him over. The November 15 letter stated: "You are hereby notified that your pending license suspension as the result of outstanding __________ noted below has been removed." Rather than stating that Bethune's license was suspended or expired, this letter evidently states just the opposite -- that the pending suspension on his license had been removed. The mailing confirmation document states that the post office did not receive the letter for which the confirmation was created (which letter was not included as an exhibit) until January 18, 2017 -- five days after Bethune was pulled over. Similarly, the registry certificate provided at the request of the Commonwealth does not indicate when the purported license suspension went into effect.
While Trooper Mace testified that Bethune did not have his license with him and that Mace learned from a CJIS computer inquiry that Bethune's license was expired, his testimony does little to offset the gaps in the registry documents. Furthermore, the Commonwealth offered no testimony from a registry official to explain the documents or the notification process. Even viewing the evidence in the light most favorable to the Commonwealth, finding beyond a reasonable doubt that Bethune's license was suspended at the time Trooper Mace pulled him over and that Bethune had notice of the suspension would "require[ ] a leap of conjecture with respect to [an] essential element[ ] of the crime charged in order to obtain a conviction." Commonwealth v. Latney, 44 Mass. App. Ct. 423, 426 (1998). The conviction on the charge of unlicensed operation of a motor vehicle therefore cannot stand.
2. Operating under the influence. Bethune also contends that the evidence at trial was insufficient to persuade a rational trier of fact that his capacity to operate a motor vehicle was impaired. We disagree.
Bethune stipulated to the other elements of operating under the influence -- that he was operating a motor vehicle and was doing so on a public way.
--------
In the light most favorable to the Commonwealth, Bethune exhibited classic symptoms of alcohol intoxication: his eyes were bloodshot and glassy; an odor of alcohol emanated from his vehicle; his speech was slurred; he admitted to drinking two beers; and he was unable to properly perform either field sobriety test. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017). Moreover, evidence of Bethune's resisting arrest and use of force while doing so also "support[ed] an inference of diminished capacity to operate safely due to intoxication." Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
Bethune emphasizes that Trooper Mace never observed Bethune driving in an unsafe or erratic manner. However, an OUI conviction "does not require the Commonwealth to ‘prove the defendant actually drove unskillfully or carelessly.’ " Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 172 (1985). We conclude that the evidence was sufficient to prove that Bethune's ability to drive was impaired by his consumption of alcohol.
3. Motion to dismiss. Finally, Bethune contends that his motion to dismiss the OUI charge should have been allowed because he was not adequately advised of his rights under G. L. c. 263, § 5A. We disagree.
The burden is on the defendant to establish the facts to support a motion to dismiss. Commonwealth v. Whitcomb, 37 Mass. App. Ct. 929, 930 (1994). Here, after an evidentiary hearing, the motion judge found that Trooper Mace read Bethune his § 5A rights and that the rights were posted conspicuously on the front of the booking bench. On these facts, Bethune was adequately advised of his rights. See G. L. c. 263, § 5A ; Commonwealth v. Gruska, 30 Mass. App. Ct. 940, 941-942 (1991). "[W]e defer to the motion judge's finding[s] of fact in the absence of clear error." Commonwealth v. King, 429 Mass. 169, 172 (1999). Here, where Bethune has merely reasserted his argument from the motion hearing as proof that he was not informed of his § 5A rights, clear error has not been shown; nor do we otherwise discern such error from the record.
Conclusion. On the count of the complaint charging unlicensed operation of a motor vehicle, the order placing the conviction on file is vacated, and judgment shall enter for the defendant. The judgments on the remaining counts are affirmed.
So ordered.
Vacated in part; affirmed in part