Opinion
14-P-1243
01-14-2016
COMMONWEALTH v. ELIZABETH ROMAN.
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
Following a bench trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a)(1). On appeal, she challenges the sufficiency of the evidence. We affirm.
The defendant was also charged with one count of negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a), and one count of marked lanes violation, G. L. c. 89, § 4A. After the defendant admitted to sufficient facts, the negligent operation charge was continued without a finding for three months. She was found responsible on the marked lanes violation.
To establish guilt under G. L. c. 90, § 24(1)(a)(1), the Commonwealth must prove that the defendant: "(1) was in physical operation of [a] vehicle; (2) on a public way or place to which the public has a right of access; and (3) had a blood alcohol content percentage of .08 or greater, or was impaired by the influence of intoxicating liquor." Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011). In this case, the Commonwealth proceeded under the theory that the defendant was impaired by alcohol. She claims that the Commonwealth's evidence as to this element of the offense was insufficient.
We summarize the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On August 10, 2013, Natick police officer Ryan P. Killeen was on patrol in a marked cruiser when, at about 1:21 A.M., he observed a Volvo sedan about fifteen to twenty feet in front of him cross over the center line and over the right fog line multiple times. The driver of the vehicle, later identified as the defendant, stopped at an intersection for an unusually long period of time before turning left, despite the absence of traffic. When she finally turned, she cut off another vehicle, forcing it to brake suddenly to avoid a collision. The officer activated his emergency lights and stopped the vehicle. Officer Killeen approached the passenger side door of the vehicle and asked the defendant for her license and registration, which she produced slowly. The defendant's eyes were glassy and bloodshot and she admitted to Officer Killeen that she felt dizzy and had been drinking. At first, she said she had consumed two "normal size" margaritas, then stated that she had three beverages. When Officer Killeen asked her about the discrepancy, she again stated that she had consumed two drinks. Officer Killeen then performed various field sobriety tests, one of which the defendant failed. Concluding that the defendant was under the influence of alcohol, Officer Killeen placed her under arrest. Upon arriving at the police station, the defendant agreed to take a breathalyzer test, which indicated a blood alcohol level of .06 percent.
After clear instructions and a demonstration by the officer, the defendant was told to walk along a painted line, heel to toe, for nine steps and then return. The defendant took several steps, stopped, stepped off the painted line and, after her ninth step, turned to walk in a perpendicular direction rather than returning to the point from which she started. When asked to stand on one leg for thirty seconds, the defendant dropped her leg after only ten seconds. However, the defendant satisfactorily performed the "one-legged stand" because she made only one mistake and otherwise was able to complete the task.
"There is sufficient support for a denial of a motion for a required finding of not guilty when 'the Commonwealth produce[s] enough evidence, taken in the light most favorable to the Commonwealth, to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime [is] present.'" Commonwealth v. Siciliano, 420 Mass. 303, 307 (1995), quoting from Aucella v. Commonwealth, 406 Mass. 415, 416 (1990). Here, the Commonwealth produced evidence that the defendant drove after consuming alcoholic beverages, crossed outside of the marked lane in which she was driving, stopped at an intersection for an excessive period of time, and forced another vehicle to brake by turning too closely in front of it. The defendant could not properly perform one of the field sobriety tests. She had bloodshot and glassy eyes, and the odor of alcohol on her breath. On the basis of these facts, it was both reasonable and permissible for the judge to infer that the defendant operated her motor vehicle while impaired by the influence of intoxicating liquor. See Commonwealth v. Platt, 440 Mass. 396, 403 (2003), citing Commonwealth v. Swartz, 343 Mass. 709, 713 (1962) (inference of defendant's guilt from all circumstances, "while not compelling, was at least permissible").
Judgment affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 14, 2016.