Opinion
20-P-1425
03-17-2022
COMMONWEALTH v. Michael BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the District Court, the defendant, Michael Brown, was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI). On appeal, he contends that the Commonwealth did not prove every element of the offense beyond a reasonable doubt and, therefore, the judge erred in denying his motion for a required finding of not guilty. We affirm.
The defendant was charged with operating under the influence of intoxicating liquor, second offense, but was found not guilty of the second offense portion of the complaint.
Background. We summarize the facts, as a fact finder could have found them, in the light most favorable to the Commonwealth. On June 25, 2019, at approximately 4:45 P.M. , Sergeant Kevin Henehan of the Groton Police Department was performing stationary traffic control when he observed a white Ford sedan take a left-hand turn into a shopping plaza. Sergeant Henehan observed the vehicle traveling down a one-way street in the wrong direction and noticed that the vehicle had an expired inspection sticker. After running the registration and verifying the inspection sticker's expiration status, Sergeant Henehan drove into the shopping plaza and observed the same white Ford sedan idling in front of two Dumpsters in the parking lot. He "[l]it up [his] blue lights" as "to effect a motor vehicle stop for the infractions of a restricted-way violation as well as an expired inspection" and pulled behind the white Ford sedan, which was the only vehicle in the area.
"[W]ithin seconds," Sergeant Henehan noticed a male individual, later identified as the defendant, emerge from an area between the two Dumpsters. After the defendant returned to the vehicle, Sergeant Henehan approached him, revealed the reason for the stop and questioned him as to why he was behind the Dumpsters. The defendant "apologized for going down the restricted way, [and] said that [he has] done that a couple of times in the past and that he always forgets that [it is] a one-way." The defendant then explained that he "usually doesn't take the vehicle he took today to help a friend deliver flowers ... and apologized for the inspection sticker."
Sergeant Henehan testified that on approaching the vehicle near the Dumpsters, he saw that the "passenger door" was open. He saw the defendant return to the vehicle, enter it, "and then shut the passenger door." At that time, Sergeant Henehan "exited [his] vehicle and made contact at the driver's side with the operator."
As he spoke with the defendant, Sergeant Henehan observed a "strong odor of an alcoholic beverage emanating from his breath[,] ... his eyes [were] bloodshot and glassy[,] ... [and] he spoke with a slight slur...." This prompted Sergeant Henehan to ask the defendant about his alcohol intake. The defendant initially stated that he had "one beer," but then made a correction and disclosed that "he had two Mike's Hard Cherry Lemonades" after work, which ended forty-five minutes prior at 4 P.M. Sergeant Henehan then asked the defendant to step out of his vehicle to perform a series of field sobriety tests. The defendant voluntarily agreed to participate and was given comprehensive instructions by Sergeant Henehan. The defendant attempted a nine-step walk and turn, one-legged stand, and recitation of the alphabet from letters D to W with several errors.
At this point, Sergeant Henehan formed the opinion that the defendant was intoxicated
"based on the totality of what [he] had observed, starting with driving, going down a one-way ... as well as [his] interaction with [the defendant], the smell of alcohol on [the defendant's] breath, slurred speech and glassy eyes and red eyes, and [the defendant's] performance on the standardized field sobriety tests...."
The defendant was placed under arrest, following which Officer Nicholas Beltz conducted an inventory of the vehicle revealing numerous empty alcoholic beverage cans in the passenger compartment and back seat. Officer Beltz also uncovered a "16-ounce Mike's Hard Lemonade ... half empty and ice cold to the touch ... stuffed under the driver's seat."
Discussion. 1. Sufficiency. The defendant claims that the judge should have allowed his motion for a required finding of not guilty because the Commonwealth failed to prove beyond a reasonable doubt the elements of operation and "impairment." The arguments are unavailing.
In determining whether a motion for a required finding of not guilty was properly denied, we "must consider whether, viewing the evidence in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence ‘need only be reasonable and possible; [they] need not be necessary or inescapable’ " (citation omitted). Commonwealth v. Grandison, 433 Mass. 135, 141 (2001). To meet its burden on an OUI offense, the Commonwealth must prove beyond a reasonable doubt that the defendant operated a motor vehicle on a public way, and while operating the vehicle, the defendant was under the influence of intoxicating liquor. See G. L. c. 90, § 24 (1) (a ) (1). See also Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).
The Commonwealth presented sufficient evidence to show that the defendant operated the motor vehicle. First, the defendant's statements, in which he apologized for going down the restricted way, explained that he "usually doesn't take the vehicle he took today," and apologized for the inspection sticker, viewed in the light most favorable to the Commonwealth, constituted an admission that he drove the white Ford sedan. The defendant responds that he never said he was driving. However, his statement regarding operation was unsolicited and unprompted. Sergeant Henehan merely asked why the defendant was behind the Dumpsters, and the defendant chose to respond to this question with an apology for entering the parking lot in the wrong direction. Viewed in context, a finder of fact could have viewed the statement as an admission to driving the vehicle.
Second, considerable circumstantial evidence corroborated the defendant's admission. "The corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary." Commonwealth v. Forde, 392 Mass. 453, 458 (1984). "[A]n uncorroborated confession is ‘insufficient to prove guilt’ " (citation omitted). Commonwealth v. Leonard, 401 Mass. 470, 472 (1988). Here, the Commonwealth introduced evidence, through Sergeant Henehan's testimony, that he drove into the shopping plaza parking lot and spotted the vehicle in front of the Dumpsters approximately two minutes after first witnessing its entrance via a one-way exit; that the white Ford sedan was the only vehicle in this area of the lot; that the vehicle was idling near two Dumpsters while the defendant was, by his admission, urinating behind them; that no other individuals were situated in the surrounding vicinity or located inside of the vehicle; and that, when Sergeant Henehan approached the defendant, the defendant was seated in the driver's seat. Viewed in the light most favorable to the Commonwealth, this evidence, combined with the defendant's statements, were sufficient to prove that the defendant was the operator of the white Ford sedan. See Commonwealth v. Hilton, 398 Mass. 63, 67 (1986) (holding that trier of fact could infer, based on sufficient circumstantial evidence, that defendant was operator of vehicle when she was found on her own in the front seat of vehicle, keys remained in vehicle's ignition, and she responded to officer's questioning by making note of her vehicular travels prior to being approached). Contrast Leonard, supra at 472-473 (concluding that uncorroborated statements were insufficient to prove defendant's operation where two individuals with ability to operate vehicle remained present).
The Commonwealth also presented sufficient proof that the defendant was intoxicated. The evidence showed that the defendant entered the shopping plaza parking lot down a one-way exit; that he admitted to drinking alcoholic beverages; that he had a strong odor of alcoholic beverages on his breath, bloodshot and glassy eyes, and slurred speech; and that he failed field sobriety tests, which, in Sergeant Henehan's training and experience, indicated intoxication. "[T]he 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." Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Based on Sergeant Henehan's observations, a reasonable fact finder could have found that the defendant operated the vehicle while he was intoxicated and impaired. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010) (holding that it was reasonable for trier of fact to conclude that defendant was intoxicated when he "was observed ... smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public"). See also Hilton, 398 Mass. at 68 ; Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994). Accordingly, the judge did not err in denying the motion for a required finding of not guilty.
Judgment affirmed.