Opinion
19-P-1148
11-09-2020
COMMONWEALTH v. RANDY BUTLER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Randy Butler, appeals from his conviction of operating under the influence of alcohol. See G. L. c. 90, § 24 (1) (a) (1). On appeal, the defendant contends that the evidence was insufficient to support the conviction. We affirm.
The defendant was also convicted of negligent operation of a motor vehicle. See G. L. c. 90, § 24 (2) (a). That conviction is not challenged on appeal.
"We review for sufficiency of the evidence under the well-known standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), asking whether, after viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Proia, 98 Mass. App. Ct. 125, 127 (2020). In order to sustain a conviction of operating under the influence of intoxicating liquor, "the Commonwealth must prove three elements: (1) operation of a vehicle, (2) on a public way, (3) while under the influence of alcohol." Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 728 (2016). Only the third element of the offense is at issue on appeal. With respect to that element, "[t]he 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. Rarick, 87 Mass. App. Ct. 349, 352 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).
The evidence was more than sufficient to support the conviction. Officer Christopher Raymond of the Auburn Police Department saw the defendant's car cross the white fog line and the double yellow line at 1:37 A.M. on August 6, 2016. The car was traveling at approximately sixty miles per hour in a forty mile per hour zone on a flat tire that was down to its rim. The officer initiated a stop and the defendant drove another one hundred yards before he stopped. When the officer reached the defendant's car he detected a strong odor of alcohol. The defendant had difficulty differentiating his license from other cards in his wallet, he inadvertently revved the engine when he reached for his registration, he had bloodshot and glassy eyes, and his speech was slurred. He lied about whether he had been drinking and named two different towns from which he had come. The officer terminated the field sobriety tests because the defendant, who smelled of alcohol, was so unsteady on his feet that the officer was concerned the defendant would injure himself. At the police station, the defendant had difficulty getting out of the police car, and had trouble spelling his middle name at booking. When asked by the booking officer what color his eyes were, the defendant responded, "Glazed." The booking officer testified that the defendant was highly intoxicated. When the booking officer asked the defendant if he should have been driving, the defendant answered, "No."
The defendant testified in his defense and admitted he had been untruthful with the officer.
The Commonwealth met its burden by presenting not just evidence of the "classic indicia of impairment," such as testimony "that the defendant was unsteady on his feet, had bloodshot and glassy eyes, smelled of alcohol, and slurred his words," Commonwealth v. Jewett, 471 Mass. 624, 636 (2015), but far more. The defendant's inability to take the field sobriety test, coupled with his behavior and statements at the police station, underscored the severity of his impairment. The defendant told the jury that his behavior was attributable to a lack of sleep (he claimed to have been sleeping poorly because he was a night shift worker and had recently broken up with a long-term girlfriend), but the jury were not obligated to credit his version of events. Questions of credibility are for the jury to resolve, see Commonwealth v. Norris, 483 Mass. 681, 686 (2019), and the jury plainly credited the officers' testimony. The evidence of alcohol-related impairment was sufficient.
Judgment affirmed.
By the Court (Meade, Sullivan & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 9, 2020.