Opinion
15-P-980
02-08-2016
COMMONWEALTH v. DENNIS J. PETRIDES.
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
On appeal from his conviction of operating a motor vehicle while under the influence of alcohol, the defendant contends that the evidence was insufficient to support the conviction. We affirm.
When reviewing the sufficiency of the evidence, we ask 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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (citation omitted). In a prosecution for operating a motor vehicle while under the influence of alcohol, the Commonwealth "need not prove that the defendant actually drove in an unsafe or erratic manner"; it must simply prove "a diminished capacity to operate safely." Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).
The police officer testified that the defendant appeared to be intoxicated. The officer observed that the defendant's eyes were glassy and bloodshot and that he smelled of alcohol. After initially telling police he had consumed no alcohol, then saying he had had only one drink, the defendant eventually admitted having had two drinks. When the defendant stepped out of the car, a cold can of beer that had been mostly consumed was in plain view on the driver's side floor. The defendant was unable to stand on one leg for more than fifteen seconds, and during the walk-and-turn test he stepped off the line and raised his arms to balance. This evidence, taken together, was sufficient to support the conviction. See Commonwealth v. Gibson, 82 Mass. App. Ct. 834, 837-838 (2012) (evidence sufficient where defendant "lost his balance a few times," skipped several letters while reciting the alphabet, and smelled of alcohol). The defendant's objections amount to an attack on the weight assigned to the evidence, which is a question for the jury. See Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353 (2015) ("[T]he weight of the evidence is not the yardstick we use to test whether the evidence satisfies the requirement of proof beyond a reasonable doubt").
Judgment affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk
Entered: February 8, 2016.