Opinion
21-P-587
10-12-2022
COMMONWEALTH v. WILLIAM H. HILL.
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 23.0
Following a jury trial in the District Court, the defendant was convicted of operating under the influence of liquor (OUI), and he was convicted of the third offense portion of the OUI charge in a subsequent bench trial. On appeal, he challenges the sufficiency of the evidence to support his OUI conviction and the subsequent offense portion of the conviction. We affirm.
The judge entered a finding of not guilty on a charge of vandalism with a noxious or filthy substance. The jury found the defendant not guilty of negligent operation.
Facts.
We set forth the facts in the light most favorable to the Commonwealth. See Commonwealth v. Colas, 486 Mass. 831, 833 (2021), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On August 11, 2019, at approximately 1:50 A.M., Tewksbury police officer Matthew Donovan noticed a pickup truck speeding down Main Street with no taillights illuminated. Donovan eventually caught up with the truck and activated his overhead red and blue lights to conduct a stop. The truck took an abrupt, hard right turn, drove past the fog line and over a curb approximately one to two feet past the fog line, and came to a stop in a mulched area on the side of the road.
As Donovan approached the driver's side door of the truck, the driver (subsequently identified as the defendant), silently faced forward and did not acknowledge Donovan. The defendant first ignored Donovan's request for his license but eventually produced it. At this time, Donovan noticed that the defendant's speech was slow and slurred, and that his eyes were red, bloodshot, and glassy. Donovan also detected an odor of alcohol coming from the defendant's breath. The defendant told Donovan that he was coming from a pub about one-half mile from where he had been pulled over. It was at this time that Donovan noticed that the truck's dashboard was displaying a symbol that indicated that the front right tire had zero pressure. Despite the obvious flat tire, the defendant denied it was flat.
Donovan asked the defendant to put out the cigarette that he was smoking. Initially the defendant ignored the request, but eventually he "ashed" it on the driver's side mirror. Donovan twice asked the defendant to get out of the truck. When he finally did, the defendant was slightly unsteady on his feet. He only walked part way to the back of the truck. Donovan placed the defendant under arrest. During an inventory search of the truck, Donovan located an empty beer can in the foot area of the passenger's side of the truck. A cooler containing ice and unopened beer cans was located in the bed of the truck. While transporting the defendant in his cruiser, Donovan noted a "distinct" odor of alcohol and cigarette smoke in the cruiser that had not been present before the arrest.
During the booking procedure, the defendant was uncooperative. He refused to remove his boots and cursed at and mocked the police officers. It took more than eight hours to complete the booking process. At one point, the defendant urinated on the floor of the holding cell.
The judge could have found the following facts at the subsequent offense portion of the bifurcated trial. A certified copy of the defendant's records at the registry of motor vehicles and a certified copy of a criminal docket sheet established that the defendant had twice been convicted of OUI.
Discussion.
Sufficiency of the evidence of OUI.
"In determining whether the Commonwealth met its burden to establish each element of the offense charged, we apply the familiar Latimore standard. '[The] question is whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Colas, 486 Mass. at 836, quoting Latimore, 378 Mass. at 677.
The Commonwealth is required to "prove that the defendant (1) physically operated a vehicle; (2) 'on a public way or place to which the public has a right of access; and (3) . . . was impaired by the influence of intoxicating liquor.'" Commonwealth v. Faherty, 93 Mass.App.Ct. 129, 133-134 (2018), quoting Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016).The Commonwealth need not prove that the defendant drove in an unsafe or erratic manner, but only that his ability to operate safely was diminished. See Commonwealth v. Rarick, 87 Mass.App.Ct. 349, 352 (2015). Here there was ample evidence to support the defendant's conviction of OUI. He was speeding with no taillights on; when Donovan tried to stop the truck, the defendant pulled it over abruptly. He crossed the fog line and traveled over the curb into a mulched area. The defendant was either driving on a flat tire, or when the truck went over the curb, it did so with enough force to deflate the tire. The defendant exhibited signs of intoxication at the scene and at the police station. See Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 31 (1994) ("[t]hat a defendant was belligerent . . . [is a] factor[] that may support an inference of . . . intoxication"). An empty beer can was found in the foot area of the passenger's side of the truck, and the defendant admitted to drinking at a pub in close proximity to the stop.
The defendant only challenges the third element.
At the very least, the jury could have reasonably inferred that the defendant's ability to drive safely was compromised. "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable." Faherty, 93 Mass.App.Ct. at 133, quoting Commonwealth v. Waller, 90 Mass.App.Ct. 295, 303 (2016). Indeed, the jury could have concluded that the defendant in fact drove in an unsafe and erratic manner. See Commonwealth v. Reynolds, 67 Mass.App.Ct. 215, 218-219 (2006) (defendant's speed and erratic driving supported finding of diminished capacity).
Sufficiency of evidence of the subsequent offense.
The defendant contends that the certified records did not prove that he had two prior convictions of OUI, and that alleged procedural defects in the prior proceedings invalidated those convictions. "The sufficiency of docket sheets as evidence of prior convictions is well settled in the Commonwealth." Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). See G. L. c. 90, § 24 (4). The defendant concedes that he was the defendant named in the criminal docket sheet admitted at trial. Moreover, as the judge noted, the criminal docket sheet, which pertained to one of the defendant's prior OUI convictions, reflected that the defendant's sentence imposed in 2011 in that case required completion of a second offender's program. Compare G. L. c. 90, § 24 (second offense disposition), with G. L. c. 90, § 24D (first offense disposition). The defendant's claim that prior procedural defects invalidated his prior convictions fails where he has not presented "credible and reliable factual evidence," Commonwealth v. Yardley Y., 464 Mass. 223, 227 (2013), quoting Commonwealth v. Lopez, 426 Mass. 657, 663 (1998), to rebut the presumption of regularity in the convictions.
Judgment affirmed.
By the Court
The panelists are listed in order of seniority.