Opinion
21-P-582
06-08-2022
COMMONWEALTH v. DAVID P. COLP.
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 2 3.0
The defendant, David Patrick Colp, appeals from his convictions of operating a motor vehicle while under the influence of liquor (OUI), third offense, in violation of G. L. c. 90, § 24 (1) (a.) (1); and furnishing false identification information to law enforcement, in violation of G. L. c. 268, § 34A. The defendant argues that there was insufficient evidence to support his convictions. We affirm.
The jury also found the defendant guilty of refusing to identify himself in violation of G. L. c. 90, § 25. The defendant does not appeal this conviction. At the request of the Commonwealth, the charge of operating a motor vehicle with a suspended license, subsequent offense, in violation of G. L. c. 90, § 23, was dismissed. The trial judge entered a finding of responsible for the civil charges of a marked lanes violation, G. L. c. 89, § 4A, and speeding, G. L. c. 90, § 17. After the jury trial, the trial judge also found the defendant guilty of OUI, third offense.
Discussion.
"'[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. . . . [The] question is whether, after viewing the evidence 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. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
1. QUI.
An OUI conviction requires the Commonwealth to prove three elements: "(1) operation of a vehicle, (2) on a public way, (3) under the influence of alcohol." Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). "[T]he Commonwealth need not prove that the defendant was drunk, only that alcohol diminished [his] ability to operate a motor vehicle safely." Commonwealth v. Gallagher, 91 Mass.App.Ct. 385, 392 (2017), citing Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988). The defendant argues that the Commonwealth failed to prove that the defendant was under the influence of alcohol such that his ability to safely operate a motor vehicle was diminished.
Viewing the evidence in the light most favorable to the Commonwealth, there was ample evidence to support the conviction of OUI. The defendant was speeding twenty miles over the fifty mile per hour speed limit on Route 1 in Saugus and did not slow when he passed a fully marked cruiser with its headlights illuminated. When the marked cruiser pulled behind the defendant's vehicle, the defendant was weaving between the left and center lanes multiple times without signaling or reasonable cause to do so. When the trooper signaled for the defendant to stop his vehicle, the defendant stopped in the right lane of travel and, despite the trooper's repeated instructions to move into a nearby parking lot, the defendant failed to do so. See Commonwealth v. Dussault, 71 Mass.App.Ct. 542, 545 (2008) (evidence of defendant's erratic driving among evidence supporting OUI conviction).
By his own admission, the defendant "had a few nips" that evening. The defendant's eyes were red and glassy, his speech was slurred, and there was an odor of alcoholic beverage coming from his breath and out of his vehicle. While the defendant was able to walk to the back of his vehicle with "no real issue," he was unable to stand with his feet together and his arms by his side as instructed. Also, the odor of alcohol traveled with him. The trooper placed the defendant under arrest and transported him to the State Police barracks located ten minutes away. At the barracks, the defendant attempted two field sobriety tests. During the one leg stand, the defendant held onto the cell next to him. During the nine-step walk and turn, the defendant took ten steps in each direction instead of nine, stepped off the line a number of times, used his hands for balance, and was swaying back and forth. During booking, the defendant became erratic, and was swearing, apologizing, offering bribes, and becoming noncompliant and nonverbal. See Commonwealth v. Lavendier, 79 Mass.App.Ct. 501, 506-507 (2011) (defendant's "slurred speech, belligerent demeanor, strong odor of alcohol, poor balance, and glassy, bloodshot eyes" were all evidence of intoxication).
The defendant argues that there was no evidence of when the defendant consumed those nips. However, the trooper asked about alcohol consumption "that evening." In the light most favorable to the Commonwealth, the defendant consumed the alcohol that evening.
2. Furnishing false identification information to law enforcement.
In relevant part, G. L. c. 268, § 34A, provides: "Whoever knowingly and willfully furnishes a false name, Social Security number, date of birth . . . to a law enforcement officer or law enforcement official following an arrest shall be punished." In Commonwealth v. Clark, 446 Mass. 620, 626 (2006), the Supreme Judicial Court held that "for purposes of G. L. c. 268, § 34A, a false name is one that a person has assumed for a dishonest purpose." The SJC further stated that
"[i]n the context of the statute, dishonest purposes include, without limitation, concealing one's criminal record for purposes of being charged (avoidance of
multiple offender status), concealing one's criminal record for purposes of bail, concealing one's identity to avoid answering to an outstanding warrant, or creating a new identity with the intent to default and avoid prosecution." Id.
The defendant argues that there was insufficient evidence that the defendant provided the name "Craig Colp" after he was arrested. We disagree.
"Craig Colp" is the name of the defendant's brother.
Here, the defendant first provided his brother's name, date of birth, and Social Security number to the trooper before he was arrested. After the defendant was placed under arrest, while the trooper transported the defendant to the barracks, the defendant continued to maintain that his identity was that of his brother. The defendant had the trooper review a picture of his brother, trying to convince the trooper that the picture was of the defendant. It was only during the booking process that the defendant admitted his true identity. See Commonwealth v. Brantley, 90 Mass.App.Ct. 901, 902 (2016) (sufficient evidence to survive motion for required finding of not guilty of furnishing false identification information where "defendant furnished a false name beginning with his capture and extending through the booking procedure").
Further, the defendant indicated to the trooper that he had lied about his identity because he knew there were several warrants out for his arrest and that his license had been revoked. See Clark, 446 Mass. at 626 ("concealing one's identity to avoid answering to an outstanding warrant" constitutes dishonest purpose).
Judgments affirmed.
The panelists are listed in order of seniority.