Opinion
19-P-1166
10-20-2020
COMMONWEALTH v. Kevin M. GRAY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of operating under the influence of liquor (OUI), third offense. See G. L. c. 90, § 24 (1) (a ) (1). The defendant waived his right to a jury trial for the bifurcated portion of the trial regarding the subsequent offense, and it was tried by the court. The Commonwealth offered a certified copy of a conviction of OUI from 1993 and a certified copy of a conviction of OUI, second offense, from 1994. The trial judge upheld an objection to the admission of the 1993 conviction but admitted the certified copy of the 1994 conviction of OUI, second offense. The judge found the defendant guilty of OUI as a third offense. The defendant now appeals arguing that the defendant's prior OUI conviction as a second offense was not a sufficient basis on which to convict him of OUI, third offense.
The defendant also was convicted of negligent operation of a motor vehicle. See G. L. c. 90, § 24 (2) (a ). Although the defendant's notice of appeal encompasses that conviction, his brief makes no argument with respect to it. We therefore affirm that judgment without further discussion.
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The defendant does not argue that the certified copy of the 1994 conviction was improperly admitted. Rather, he argues that it was insufficient to support a conviction of OUI as a third offense. The defendant acknowledges that under the ordinary rule, a certified conviction of OUI, second offense, alone is sufficient to support a finding beyond a reasonable doubt that a defendant has twice before been convicted of OUI, since the defendant can be convicted of OUI, second offense, only on proof beyond a reasonable doubt that his or her OUI was a second offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006). The defendant argues, however, that that rule should not apply here because the certified copy of the 1993 conviction of OUI was not admitted.
While interesting, this argument lacks force. The certified conviction of OUI, second offense, remains sufficient evidence of two prior convictions of OUI. The fact that the 1993 certified conviction was not admitted is irrelevant. The Commonwealth was not required to prove that the defendant was in fact the defendant in the 1993 conviction of which it submitted a certified copy. Rather, it had to prove that he had previously been convicted twice of OUI. The 1994 certified conviction is sufficient to support a finding that he was, regardless of whether the first of his convictions was the 1993 conviction described in the excluded certified copy.
Judgments affirmed.