Opinion
No. 15–P–816.
05-27-2016
COMMONWEALTH v. William D. CRAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, William D. Cram, was convicted of possession of a class A substance and operating a motor vehicle while under the influence of drugs (OUI), third offense. On appeal, the defendant claims there was insufficient evidence to support the convictions. We affirm.
The defendant was also charged with possession of a class B substance. A required finding of not guilty entered on this charge. The defendant was charged with OUI, fourth offense, but was convicted, following a jury-waived trial, on so much of the complaint as alleged a third offense.
Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following facts. On January 27, 2012, at 2:25 A. M., Officer John Melto of the Danvers police department was dispatched to the Days Inn in Danvers where he found the defendant passed out inside a running motor vehicle. Officer Melto approached and observed the defendant in the driver's seat with his head back, eyes open, and in apparent need of medical attention. Officer Melto was only able to rouse the defendant by opening the door and physically shaking him. The defendant was groggy, unsteady on his feet, and had “pinpoint” pupils. His voice was “slow and thick,” and he initially told Officer Melto that he was “right here in front of [his] house” only to later explain that he was staying at a room in the Days Inn. The defendant initially provided an incorrect room number to the officer, but eventually remembered the correct number, which the hotel clerk confirmed was registered in his name.
In the hotel room, Officer Melto saw a man and a woman. The woman was in significant distress as she labored to breath. The defendant admitted that he had given the man a ride to the hotel in exchange for heroin. Officer Melto also found drug paraphernalia, including a rolled-up bill, needles, and a spoon. Officer Melto administered one field sobriety test to the defendant, which he failed. A patfrisk incident to the defendant's arrest revealed two and one-half bags of white powder in the defendant's pants pocket, a pill, and a sobriety coin. The defendant told the officer that he believed the bags contained heroin and that the pill was oxycodone. He also admitted and that he had snorted one bag of heroin in the hotel room.
The defendant was asked to recite the alphabet without singing. He proceeded from A until Q before stopping, saying that he did not know the rest. The defendant was then asked to perform balance tests, but declined, contending that he had a bad back.
Trooper Peter Sherber, a drug-recognition expert, testified at trial that signs of impairment from heroin use include drowsiness, lethargy, and flaccid muscle tone. He further testified that constricted pupil size is a symptom of heroin impairment, and that only a narcotic analgesic, such as heroin, will cause this to occur. Finally, he testified that the duration of these symptoms is from four to six hours.
1. Possession of heroin. The defendant argues that the Commonwealth presented insufficient evidence to prove that the substance seized from his pocket was heroin. The Commonwealth may meet its burden of proof on the identity of a substance through circumstantial evidence alone. Commonwealth v. Dawson, 399 Mass. 465, 467 (1987). Commonwealth v. Melendez–Diaz, 76 Mass.App.Ct. 229, 233 (2010). “Such evidence can include lay experience based on familiarity through prior use, trading, or law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying the substance as a drug; and behavior characteristic of sales and use such as testing, weighing, cutting and peculiar ingestion.” Commonwealth v. MacDonald, 459 Mass. 148, 154 (2011), quoting from United States v. Harrell, 737 F.2d 971, 978–979 (11th Cir.1984), cert. denied sub. nom Harig v. United States, 469 U.S. 1164, and cert, denied, 470 U.S. 1027 (1985).
Here, the circumstantial evidence was sufficient to prove possession of heroin. The defendant admitted that he had ingested heroin in the hotel room, which he had received in exchange for giving the male in the room a ride. Drug paraphernalia corroborating that ingestion was found in the hotel room. The defendant's physical appearance and demeanor were also consistent with recent heroin use. Finally, when Officer Melto removed the bags from the defendant's pocket, the defendant admitted that those bags contained heroin.
2. Operation under the influence of drugs. The defendant contends that the Commonwealth presented insufficient evidence of his impairment to prove that he was operating under the influence of drugs. General Laws c. 90, § 24(1) (a ) (1), as appearing in St.1994, c. 25, § 3, prohibits an individual from operating a motor vehicle on a public way “while under the influence of ... narcotic drugs.” See Commonwealth v. Sousa, 88 Mass.App.Ct. 47, 48 (2015). To prove the defendant was under the influence of a narcotic drug, the Commonwealth need only prove that he had a diminished capacity to operate the vehicle safely. Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 321 (1994). The defendant's demeanor, as described supra, his admission that he snorted heroin, in combination with the corroborating evidence found in the hotel room, were all permissible forms of circumstantial evidence from which the jury could have found impairment. See Commonwealth v. Johnson, 59 Mass.App.Ct. 164, 172 (2003) (“[T]he defendant's erratic behavior and appearance, ... and the discovery of cocaine and other controlled substances inside the vehicle permitted the inference that the defendant's capacity to operate was impaired by a narcotic drug”); Commonwealth v. Reynolds, 67 Mass.App.Ct. 215, 218 (2006). The motion for required findings of not guilty was properly denied on the two counts on which the defendant was convicted.
We reject the defendant's argument that the Commonwealth had the burden to prove the defendant was under the influence of a narcotic at the time he started the vehicle. It was sufficient for the Commonwealth to prove that the defendant was “making use of the power provided by [the vehicle's] engine” at the time he was impaired. Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320, quoting from Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987).
Judgments affirmed.