Opinion
20-P-348
02-10-2022
COMMONWEALTH v. Sam D. OUSMANE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction for operating under the influence of liquor (OUI), third offense, pursuant to G. L. c. 90, § 24 (1) (a ) (1). In the bifurcated, jury-waived portion of the trial, the Commonwealth proved two prior OUI convictions that had occurred in New York State, using records from both New York and the Massachusetts Registry of Motor Vehicles (Massachusetts RMV). On appeal, the defendant argues that there was insufficient evidence of those two prior OUI convictions, based primarily on alleged inadequacies in the evidence regarding the New York records. We affirm.
Background. At approximately 1:00 A.M. on April 25, 2018, the defendant speeded through a red light at the intersection of Boylston Street and Berkeley Street in downtown Boston. Police officers attempted to pull the defendant over, but the defendant only pulled over briefly, before speeding away again once the officers stepped out of their vehicle. The defendant's vehicle then ran another red light and crashed into a fence.
Following the crash, the defendant tried to flee by climbing over the fence. The defendant did not comply with the police officers' orders and had to be restrained. An officer testified at trial that the defendant was slurring his words, smelled like alcohol, and had glassy eyes. No field sobriety tests were conducted because the officers felt it was not safe to attempt them.
In the first portion of the bifurcated trial, a jury found the defendant guilty of OUI, among other charges. The second portion of the bifurcated trial -- in which the defendant waived his right to a jury -- focused on whether the defendant had been previously convicted of OUI (or "like offense[s]") "by a court of the commonwealth, or any other jurisdiction." G. L. c. 90, § 24 (1) (a ) (1). The Commonwealth introduced three exhibits to establish the defendant's prior convictions: a New York certificate of disposition (2011 New York records), and two Massachusetts RMV documents consisting of the defendant's RMV record and his RMV photograph (Massachusetts records). The judge, after reviewing the exhibits, sentenced the defendant based upon three OUI convictions.
On the defendant's motion, the judge excluded two other New York certificates of disposition, dated 2005 and 2013.
At trial, the defendant did not dispute that he was the subject of the Massachusetts RMV record, nor did he dispute the RMV photograph. The Massachusetts records reflected that "Sam, Ousmane D," born September 15, 1967, had a lengthy history of traffic violations, including an entry that the defendant's license was revoked on June 17, 2003, for a violation in New York. The Massachusetts RMV record and the RMV photograph have several internal points of correlation, including the birth date, name, license number, and one of the listed addresses.
The Massachusetts records include entries showing 2014 and 2015 convictions in New York for operating under the influence. These convictions are not the prior convictions that the Commonwealth proved in this case.
As to proof of the defendant's convictions in New York, however, the defendant did dispute that the 2011 New York records identified him and established two prior convictions. The 2011 New York records stated that "Ousmane, Sam D," born September 15, 1967, pleaded guilty on April 8, 2011 to "DWI: previous conviction designated offense." The 2011 New York records also included an affidavit from a New York police officer that stated that the "deponent is further informed by the records of the New York State Division of Criminal Justice Services that defendant had pleaded guilty 08/30/2005 ... to driving while intoxicated in violation of [the New York State Vehicle Traffic Law (VTL)] Section 1192(3)." Further, the affidavit portion of the 2011 New York records also reflected that Sam D. Ousmane's license was revoked on June 17, 2003.
Discussion. The defendant argues that the 2011 New York records were insufficient to establish that he had two prior convictions for operating under the influence. When conducting a sufficiency review, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quotations, emphasis, and citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Here, the defendant argues that there is insufficient evidence that (1) he is the person described in the 2011 New York records, and (2) the 2011 New York records demonstrate two prior convictions. We disagree on both counts.
The defendant does not challenge that the New York offense -- under VTL § 1192.3 -- is a "like offense" to a Massachusetts OUI charge.
As to whether the defendant is the person described in the 2011 New York records, the defendant contends that the records are not even identical as to the name, and that in any event, identity of name and date of birth are not sufficient to prove the prior conviction. But while it is true that "[m]ere identity of name is not sufficient to indicate an identity of person" (citation omitted), Commonwealth v. Maloney, 447 Mass. 577, 582 (2006), here there is more than just a name uniting the 2011 New York records and the Massachusetts records. The records from each state have the same unusual name, Ousmane Sam; the same middle initial; the same date of birth; the same race; and the same gender. Moreover, both the New York and the Massachusetts records reflect a license revocation dated June 17, 2003, stemming from a New York violation. Conviction records -- like the 2011 New York records -- that "include more identifying information than merely the offender's name" are sufficient to link the record to the defendant. Id. at 588. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008) (concluding unusual name, date of birth, and town of residence were sufficient to prove identity).
The defendant points out that in the 2011 New York records the order of the first and last names are reversed -- indicating the name "Sam Ousmane." Upon review of the entire record, we are confident that this is a scrivener's error explained by the defendant's unusual name. We note that when the defendant's counsel realized at trial that she had been reversing the defendant's first and last names during the entirety of her representation, the defendant himself stated that "[e]veryone does that."
The defendant argues that there are inconsistencies between the New York and Massachusetts records, most notably that the Massachusetts records reflect New York convictions in 2014 and 2015, while the admitted 2011 New York records reflect only 2011 and 2005 convictions. These discrepancies, when considered with the other points of correlation discussed herein, do not undermine the conclusion that both the Massachusetts records and the 2011 New York records refer to the defendant.
While a closer case, we are also satisfied that the Commonwealth introduced sufficient evidence of two prior convictions. Certified and attested copies of court records -- such as the 2011 New York docket sheet -- constitute prima facie evidence of a prior conviction. G. L. c. 90, § 24 (4). Although the defendant argues that the 2011 New York records can establish only the 2011 conviction, not the 2005 conviction that is also referenced therein, that argument is contrary to our law. "A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses." Commonwealth v. Bowden, 447 Mass. 593, 599 (2006). Here, the 2011 New York records describe a conviction for "DWI: previous conviction designated offense." Viewing the 2011 New York records as a whole, and applying the Latimore test for sufficiency of the evidence, we are satisfied a fact finder could reasonably interpret the above statement to mean that the defendant was convicted in 2011 for operating a vehicle under the influence, and that he had previously been convicted of a similar offense. Accordingly, the 2011 New York records are sufficient to establish two predicate offenses for purposes of G. L. c. 90, § 24 (1) (a ) (1).
Judgment affirmed.