Opinion
15-P-276
03-16-2016
COMMONWEALTH v. STEVEN NASON.
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 appeals from his conviction of operating a motor vehicle while under the influence of alcohol, second offense, on the basis that the Commonwealth's evidence of impairment was insufficient. We affirm.
Background. Based upon the evidence at trial, the jury could have found the following facts. At approximately 2:20 A.M. on May 18, 2013, Worcester police Officer Michael Piskator was on patrol when he came upon two vehicles that apparently had been in an accident at the intersection of Chestnut and Elm Streets. On one side of the intersection there was a Dodge Neon with a light pole on its roof. A dump truck was in the middle of the intersection. Piskator approached the Neon and observed that the windows of the car were blown out and that the two occupants were unconscious. Piskator also noticed that the operator of the dump truck, later identified as the defendant, was upright and alert. Piskator yelled at the defendant to stay in his truck. As Piskator removed the two occupants of the Neon from the now-burning car and placed them on the ground, Piskator noticed that the defendant was out of his truck and "milling" around by the driver's side door.
Worcester police Officer James Foley is a member of the accident reconstruction unit. He arrived at the scene about twenty-five to thirty minutes after being called and spoke with the defendant, who was seated on some steps of a nearby building. The defendant was evasive at first but then stated that he was the operator of the dump truck and that he got into a "crash" with the Neon. He told the officer that he was coming from "the 140," which was known to the officer as a "drinking establishment" on the Sterling-Princeton town line. Foley noticed that the defendant's eyes were "glassy/bloodshot," that he was swaying from side to side, and that there was a strong odor of alcohol emanating from his mouth. Some of the defendant's responses were unintelligible, and some questions had to be repeated. Foley formed the opinion that the defendant was not sober and placed him under arrest.
The defendant testified that he had two beers between 5:00 and 5:30 P.M., went home, had supper, and went to sleep. He stated that he got up around 1:00 A.M. and headed toward Palmer, where he was going to work the next day. The defendant stated that he was driving very slowly when the Neon hit him and that he hit his head on the driver's side window. He also stated that the two beers did not affect his ability to drive.
The parties stipulated that the defendant was operating on a public way. The defendant's motions for a required finding of not guilty were denied.
Although the transcript does not include the sidebar discussion after the Commonwealth rested, it is apparent from the sidebar discussion after the defendant rested that the defendant moved for a required finding of not guilty after the Commonwealth rested and at the closing of evidence.
Discussion. The defendant argues error in the denial of his motions for a required finding, because the Commonwealth's evidence of impairment was insufficient. In reviewing the denials, we ask "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." Commonwealth v. Arce, 467 Mass. 329, 333 (2014), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
"[I]n a prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352 (2015), quoting from Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Here, there was evidence that a serious collision occurred, that the defendant admitted to coming from a drinking establishment, and that, at least thirty minutes after the collision, the defendant was observed to have glassy eyes, to be swaying from side to side, to be unintelligible, and to emanate a strong odor of alcohol. Applying the Latimore standard to this evidence, we have no doubt that a rational fact finder could conclude that the defendant's ability to operate a motor vehicle in a safe manner was diminished by his ingestion of alcohol. A lack of direct evidence of the defendant's consumption of alcohol or level of intoxication did not require a verdict in his favor. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003) ("A conviction may be based on circumstantial evidence alone, as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt").
The defendant's testimony, that his physical symptoms were the result of a head injury rather than from the ingestion of alcohol, did not diminish the Commonwealth's case to an extent that the judge was required to allow the second motion for a required finding of not guilty. "Deterioration only occurs where the Commonwealth's evidence of necessary elements 'is later shown to be incredible or conclusively incorrect.'" Commonwealth v. Gomez, 450 Mass. 704, 710 (2008), quoting from Commonwealth v. O'Laughlin, 446 Mass. 188, 203 (2006). The defendant's only challenge to the Commonwealth's evidence came in the form of his own testimony, which the jury were free to believe or disbelieve. "[T]he weight and credibility of the evidence[ is] 'a matter wholly within the province of the jury[.]'" Commonwealth v. Platt, supra at 400, quoting from Commonwealth v. Martino, 412 Mass. 267, 272 (1992). The jury apparently did not believe the defendant's testimony that he had only consumed two beers on the night in question. This they were free to do.
Judgment affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 16, 2016.