Opinion
14-P-1815
12-21-2015
COMMONWEALTH v. MIGUEL A. PIGO CRONIN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Miguel A. Pigo Cronin, was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI), third offense; child endangerment while OUI; and operating a motor vehicle with a suspended license. He appeals, claiming that the required documentation to establish that this was his third OUI offense was never properly submitted by the prosecutor and admitted in evidence by the judge. The defendant also challenges the sufficiency of the evidence as to the OUI and child endangerment charges, and claims that that he was denied his right to confrontation under the Sixth Amendment to the United States Constitution because the prosecutor never called a registry of motor vehicles (RMV) witness to testify about an RMV certificate showing that the defendant's license was suspended prior to the incident in this case. We affirm.
1. The prior convictions. The transcript reflects that during a bench trial on the subsequent offense portion of the OUI charge, the Commonwealth presented two certified prior convictions from the Clinton Division of the District Court Department as evidence of the defendant's two previous convictions for OUI. On appeal, the defendant claims that those documents were not officially marked as exhibits and were never formally admitted in evidence by the judge, and therefore, there was no evidence of the defendant's prior OUI convictions. Pursuant to St. 2005, c. 122, § 6A, the law governing proof of prior operating under the influence convictions, if those documents were admitted as evidence in the case, then they were prima facie evidence of the defendant's prior operating under the influence convictions even without the further corroborating evidence of the defendant's probation office records. See St. 2005, c. 122, § 6A; Commonwealth v. Maloney, 447 Mass. 577, 582-84 (2006); Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 911 n.4 (2009).
There is no question that the two certified prior convictions were presented by the Commonwealth and considered by the judge. Defense counsel acknowledged during the bench trial that "the Commonwealth bears the burden of . . . submitting . . . a certified attested copy of the court papers, which has been done . . . ." Although the introduction of the evidence was rushed, the cumulative information on the record before us leads us to conclude that the prior convictions were admitted in evidence and properly considered by the trial judge in reaching the finding that this was the defendant's third OUI offense.
2. Sufficiency of the evidence. a. OUI. At the close of the Commonwealth's evidence at the jury trial, the defendant moved for a required finding of not guilty, and that motion was denied. The defendant did not renew his motion for a required finding at the close of all the evidence. The defendant claims that there was insufficient evidence for the jury to convict him of OUI and child endangerment while OUI.
"In determining the validity of a claim challenging the sufficiency of the Commonwealth's evidence at trial, we review the evidence in the light most favorable to the Commonwealth to determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "[W]e recite the facts in the light most favorable to the Commonwealth . . . ." Commonwealth v. Almonte, 465 Mass. 224, 226 (2013).
The police officers who interacted with the defendant shortly after the accident gave testimony from which the jury could have concluded that the "defendant was belligerent, unsteady on his feet and smelled of alcohol[; these] are factors that may support an inference of diminished capacity to operate safely due to intoxication." Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994). According to the testimony of the arresting officer, the defendant's "eyes were glassy and red" and "[h]is speech was slurred," both of which are signs of intoxication. See Commonwealth v. Haley, 23 Mass. App. Ct. 10, 12 (1986). In the estimation of the arresting officer, the defendant had difficulty performing field sobriety tests, and the jury could have considered that as evidence of the defendant's intoxication. See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 774 n.1 (2013) ("Field sobriety tests are based upon the relationship between intoxication and the loss of coordination which intoxication produces. . . . A lay juror understands that intoxication leads to diminished balance, coordination, and mental acuity from common experience and knowledge" [quotations and citations omitted]). The arresting officer concluded that the defendant "was drunk," and such "opinion testimony of police who observed the defendant may also be taken into account" to determine whether the defendant had diminished capacity to operate a motor vehicle. Sudderth, supra at 321. In sum, "there was ample evidence to support a determination that the defendant was under the influence of alcohol at the time he 'operated' the motor vehicle." Ibid.
b. Child endangerment while OUI. The defendant was also convicted of child endangerment while OUI pursuant to G. L. c. 90, § 24V(a). On appeal, the defendant challenges whether there was sufficient evidence, as required by § 24V(a), that he was OUI with a child in the vehicle who was fourteen years of age or less. As we have already addressed the sufficiency of the evidence as to the OUI element, we now turn to the evidence of child's age.
The defendant testified at trial that his six year old daughter was in the car with him on the day in question. Further, there was testimony from two other witnesses that a child was with the defendant on the day in question, and that her age was between six and eleven. Defense counsel did not object to that testimony. The defendant's claim of insufficient evidence as to his daughter's age is meritless.
3. Operating a motor vehicle with a suspended license. The defendant next challenges the admission in evidence of an RMV certificate attesting to a notice that the defendant's license was suspended. The suspension was for a period that included the date of the incident in this case. The certificate was admitted in evidence over the defendant's objections. It was accompanied by an RMV business record which reported that the notice of suspension had been mailed to the defendant on July 25, 2012, a little over two weeks prior to the incident in this case. The defendant conceded at trial both that he had received the notice and that his license was suspended on the date of the incident.
The defendant claims that the certificate "was inadmissible without testimony from a witness on behalf of the registry." Relying on the Supreme Judicial Court's decision in Commonwealth v. Parenteau, 460 Mass. 1, 5-10 (2011), the defendant further claims that the admission of the RMV certificate without such testimony violated his rights under the confrontation clause. This case is distinguishable from Parenteau because the RMV notice in the instant case was mailed to the defendant weeks prior to the incident that transpired here, and the certificate was thus a nontestimonial business record prepared in the ordinary course of business and not for use at the defendant's trial. See id. at 10. The RMV certificate was thus "prima facie evidence . . . as to the facts contained therein," and it was properly admitted in evidence. G. L. c. 90, § 22(d).
Judgments affirmed.
By the Court (Kafker, C.J., Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 21, 2015.