Opinion
14-P-1560
02-12-2016
COMMONWEALTH v. KIRK D. OVITT.
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
In determining whether the judge abused his discretion in revoking the defendant's probation, it is immaterial whether we would have revoked probation in the same circumstances. See L.L. vs. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ("[A] trial judge's decision . . . is plainly not an abuse of discretion simply because a reviewing court would have reached a different result"). Here, for the second time, the defendant violated his no alcohol condition of probation by consuming a sufficient quantity of a low alcohol product -- here, "non-alcoholic" beer containing, according to its label, less than .05 percent alcohol by volume, and in the previous case, in which probation was not revoked but the conditions of probation were modified, cough medicine and cold medicine -- to increase his blood alcohol level to a point where it measured .025 percent (.031 percent in the previous case). The judge was entitled to conclude that this was knowingly violative conduct and, given both that violation and the defendant's record of previous violations, which includes a violation of a pretrial release condition, we conclude that the judge acted within his discretion in revoking probation.
Order revoking probation affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 12, 2016.