Opinion
15-P-588
02-23-2017
COMMONWEALTH v. William DOTEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, following a bench trial, of operating while under the influence of intoxicating liquor and other motor vehicle offenses, arguing that his motion for required findings of not guilty should have been allowed because the Commonwealth failed to present sufficient proof that he was the operator of the motor vehicle. We affirm.
He was also found responsible for a violation of the open container law, G. L. c. 90, § 24I.
Background . We recite the facts and permissible inferences therefrom in the light most favorable to the Commonwealth. See Commonwealth v. Latimore , 378 Mass. 671, 676-677 (1979). At approximately 8:00 P.M. on January 3, 2013, a public safety dispatcher with the town of Avon received a 911 call. The caller reported that he was in charge of a vehicle and further stated, "I ran out of gas.... I've got my blinkers on." The responding officer received a report that there was a disabled motor vehicle or accident on West Main Street, and proceeded to that location. He observed a pickup truck pulled over to the right-hand side of the southbound lane, not running, with the headlights off and the interior lights on. The vehicle had not been present about one hour to ninety minutes earlier, when the officer had last driven by the location.
The caller identified himself as "Billy." After a recording of the 911 call was played at trial, the responding officer testified that the caller "sounds like" the defendant.
The officer activated his cruiser's blue lights, pulled over, and approached the vehicle on foot, observing the defendant in the driver's seat and another individual in the passenger seat. The defendant was talking on the telephone; the officer later learned that he was speaking to the dispatcher. After the officer knocked on the window, the defendant rolled it down and the officer noted a "strong" odor of an alcoholic beverage. The defendant told the officer that "he was out of gas." He told the officer that he did not have a license, and the officer noticed that the defendant's speech was "slow and slurred." When asked where he was going, the defendant told the officer that he was "taking his friend," the passenger, to the Veterans Administration hospital (VA) in Brockton, where he had picked the friend up earlier. The officer observed a partially-empty 1.75-liter bottle of vodka and container of "Bud Light" inside the vehicle.
The officer asked the defendant to step out of the vehicle to perform field sobriety tests, and caught the defendant as he "stumbled" exiting the vehicle. The defendant "messed up" and missed letters while reciting the alphabet twice in a row. He was very unsteady on his feet and was unable to perform the one-leg stand. After unsuccessfully attempting the heel-to-toe test, the defendant stated to the officer, "[F]uck it, I'm going to jail," and turned around and placed his hands behind his back. The defendant was placed under arrest, after which the officer discovered the keys to the pickup truck in the vehicle's glove compartment.
At trial, the defendant stipulated that his license had been revoked prior to his arrest. At the close of the Commonwealth's case, he moved for required findings of not guilty, arguing that there was insufficient evidence that he had been operating the pickup truck. The motion was denied, and he now appeals.
The defendant's written motion also argued that the Commonwealth also failed to prove the element of impairment, but he does not renew this argument on appeal.
Discussion . Drawing all reasonable inferences in the Commonwealth's favor, we ask whether the evidence is sufficient to convince any rational fact finder, beyond a reasonable doubt, of the defendant's guilt as to each element of the crimes. On appeal, the defendant concedes all elements of the crimes of which he was convicted, with the exception of the operation element.
"An individual ‘operates' a motor vehicle within the meaning of G. L. c. 90, § 24, ‘when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.’ " Commonwealth v. Ginnetti , 400 Mass. 181, 183 (1987), quoting from Commonwealth v. Uski , 263 Mass. 22, 24 (1928). The Commonwealth may prove this element using either direct or circumstantial evidence. Commonwealth v. Woods , 414 Mass. 343, 354-355, cert. denied, 510 U.S. 815 (1993).
There was ample circumstantial evidence to support the fact finder's conclusion that the defendant had operated the pickup truck. A person who identified himself as "Billy" (a common nickname for William) telephoned 911 to report that he was "in charge" of a vehicle, that "[he] ran out of gas," that "[his] blinkers" were on, and that the vehicle was in a precise location. When an officer arrived at that location, the defendant, who was seated in the driver's seat, was on the telephone with a dispatcher. The jury could have credited the officer's testimony that the 911 caller and the defendant were one and the same, and drawn an inference that he was operating the vehicle when "[he] ran out of gas." Moreover, the defendant effectively admitted that he was the driver when he told the officer that he was "taking his friend" to the VA. He displayed consciousness of guilt when, after failing the field sobriety tests, he stated to the officer, "[F]uck it, I'm going to jail," and turned around and held his hands together behind his back—inferentially, as if to be handcuffed. See Commonwealth v. Swartz , 343 Mass. 709, 713 (1962) (while not conclusive, consciousness of guilt may combine with other evidence to support guilty finding).
It is true that without corroboration, a confession alone is insufficient to prove the element of operation. See Commonwealth v. Leonard , 401 Mass. 470, 472-473 (1988), citing Commonwealth v. Forde , 392 Mass. 453, 457-458 (1984). Here, however, that confession was corroborated when the officer directly observed the defendant in the driver's seat while on the phone with the dispatcher, and by the Registry of Motor Vehicles records connecting the vehicle with a relative of the defendant. This evidence supported an inference by the fact finder that the defendant was driving the vehicle shortly before his arrest.
The Commonwealth also introduced in evidence a certified copy of Registry of Motor Vehicles records indicating that the vehicle was registered to one Claire Doten. Claire Doten's home address from those records matched an address listed in Brockton Hospital records as provided by the defendant and belonging to his next of kin, his sister. In cases where the defendant himself is the registered owner, it is reasonable to infer that he was the vehicle's operator. See Commonwealth v. Deramo , 436 Mass. 40, 43-44 (2002). In this case, the evidence of a connection between the defendant and the vehicle's owner provides some, albeit more limited, support for the inference that the defendant was operating the vehicle.
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The defendant contends that the presence of the passenger presented two equal, possible inferences as to which person was operating the vehicle. We disagree. The defendant's own words, combined with his position within the vehicle and his cooperation with the field sobriety tests, suggested a greater probability that he was the driver, rather than his friend. See Commonwealth v. O'Connor , 420 Mass. 630, 632 (1995) (operation may be inferred from defendant's cooperation with field sobriety tests); Commonwealth v. Beltrandi , 89 Mass. App. Ct. 196, 201 (2016) (officer observed defendant in driver's seat). The fact finder was not forced to resort to "a leap of conjecture" to conclude that the evidence was sufficient on the essential element of operation. See Commonwealth v. Latney , 44 Mass. App. Ct. 423, 426 (1998).
The defendant also argues that there was no evidence that the defendant was in possession of the car keys, because they were found in the glove compartment on the passenger's side of the vehicle. The fact finder was free to reject the notion that the defendant and his friend had switched positions in the vehicle prior to telephoning 911 to report that it had run out of gasoline. See Beltrandi , supra at 201 n.6 (not unreasonable for jury to draw inference that defendant had been seated in driver's seat the entire time).
There was no error in the denial of the defendant's motion for required findings of not guilty.
Judgments affirmed.