Opinion
No. 15–P–563.
07-28-2016
COMMONWEALTH v. William F. MOFFORD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, William F. Mofford, was convicted after a jury-waived trial of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense; leaving the scene of an accident causing property damage; and negligent operation of a motor vehicle. On appeal, the defendant's sole contention is that there was insufficient evidence in support of the element of operation as to each charge. We affirm.
After being found guilty of the underlying OUI charge, the defendant stipulated to the third offense portion of that charge.
The defendant was acquitted of operating a motor vehicle with a suspended license.
“In reviewing the denial of a motion for a required finding of not guilty, ‘we consider the evidence, together with permissible inferences from that evidence, in the light most favorable to the Commonwealth and “determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ‘ “ Commonwealth v. Carter, 442 Mass. 822, 823 (2004), quoting from Commonwealth v. Platt, 440 Mass. 396, 400 (2006). See Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). “To make this determination, we look only to the evidence presented by the Commonwealth, and disregard any contrary evidence presented by the defendant.” Commonwealth v. Platt, supra at 400–401. “Proof of operation of a motor vehicle may ‘rest entirely on circumstantial evidence.’ “ Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), quoting from Commonwealth v. Cromwell, 56 Mass.App.Ct. 436, (2002).
Viewed in light most favorable to the Commonwealth, the circumstantial evidence and the reasonable inferences drawn therefrom were sufficient in this case to establish that the defendant operated the vehicle that struck the telephone pole at the corner of North Main Street and West Street in Randolph. First, two minutes or less had expired between the report of a motor vehicle accident (at about 1 A.M. ) and the firefighter's arrival, which suggests that the vehicle had been recently operated. See Commonwealth v. Cromwell, supra at 439 (collision appeared to have been “recent”). Second, there was no evidence to suggest the possibility of another driver. See ibid. (“absence of evidence tending to suggest that someone other than the defendant was operating the [vehicle]”). The firefighter saw one individual approximately fifty yards from the abandoned vehicle, walking in a direction away from the accident. When the police arrived next, they saw no one in the immediate vicinity. A police officer began “checking the area” and went “right around the corner” to an apartment complex. In the parking lot of that complex, the officer found the defendant, who was alone and standing within 200 yards of the immobilized vehicle. The mere fact that the defendant was found outside of the vehicle and not in the driver's seat does not render the Commonwealth's case insufficient. See Commonwealth v. Petersen, supra at 52–53; Commonwealth v. Congdon, 68 Mass.App.Ct. 782 (2007).
Here, the defendant also possessed a key, which included the key fob, to the immobilized vehicle. He gripped it tightly and initially “pulled it away” when asked by the officer a number of times what was in his hand. The officer, however, gained custody of the key when, for the defendant's safety, he placed the defendant in protective custody. The officer used the key to activate the immobilized vehicle's alarm system and lights. See Commonwealth v.. Petersen, supra. Contrary to the defendant's contention, that evidence supported a reasonable inference that the key in the defendant's possession was also capable of activating the vehicle's ignition. Together the circumstantial evidence linked the defendant to recent operation of the vehicle.
In addition, the judge could fairly consider evidence of the defendant's physical condition and the manner of the accident in finding sufficient evidence of the defendant's operation of the vehicle. The defendant was highly intoxicated (necessitating that he be placed in protective custody) and this was a single-vehicle accident with a stationary object. See Commonwealth v. Manning, 41 Mass.App.Ct. 18, 21–22 (1996) (“The position of the [vehicle], on an island in the middle of the intersection and resting on top of a toppled traffic control signal, alone was sufficient to raise an inference of operating under the influence”). Drawing on the totality of the evidence and the reasonable inferences to be drawn therefrom, we conclude that the judge did not err in denying the defendant's motion for required findings of not guilty.
The defendant stipulated to and did not contest intoxication at trial.
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Judgments affirmed.