Commonwealth v. Pisano

COMMONWEALTH v. THOMAS P. PISANO.

15-P-296

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

January 13, 2016

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 was convicted by a District Court jury of operating a motor vehicle while under the influence of intoxicating liquor (OUI).¹ He appeals, contending that the trial judge erred in denying his motions for a required finding of not guilty. We affirm.

Discussion. We review the denial of a defendant's motion for a required finding of not guilty by considering whether the evidence, taken in the light most favorable to the Commonwealth and considering the reasonable inferences to be drawn therefrom, was sufficient to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime was proven. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We donot weigh "contrary evidence presented by the defense." Commonwealth v. Muise, 28 Mass. App. Ct. 964, 965 (1990), quoting from Commonwealth v. Hart, 26 Mass. App. Ct. 235, 236 (1988).² In order to sustain an OUI conviction, the Commonwealth must prove that the defendant (1) operated a motor vehicle (2) on a public way (3) while under the influence of alcohol. Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). We are satisfied that the evidence as to each element was sufficient.

1. Operation. "An individual 'operates' a motor vehicle within the meaning of G. L. c. 90, § 24, 'when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle." Commonwealth v. Ginnetti, 400 Mass. 181, 183 (1987), quoting from Commonwealth v. Uski, 263 Mass. 22, 24 (1928). Where the defendant was found asleep in the driver's seat of his car on a "dirt pull off" from Old Stockbridge Road with the keys in the ignition, the engine running, the dashboard lights illuminated, and the headlights on, there was sufficient evidence of operation. SeeCommonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994); Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 650 (2011). Cf. Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000). In fact, the Commonwealth's evidence of operation here is stronger than in McGillivary, supra, because the engine of the defendant's vehicle was actually running.

The defendant's reliance on Commonwealth v. Plowman, 28 Mass. App. Ct. 230, 233-234 (1990), is inapposite. In Plowman we were "only concerned with the correctness of the judge's instructions to the jury" on the issue of operation, and we reversed the conviction because based on those instructions the "jury was clearly left with the impression that evidence that the defendant was sleeping in the driver's seat of a parked automobile, with the keys in the ignition and the engine running, compelled, without more, a finding of 'operation'" (emphasis added). Id. at 234. The sufficiency of the evidence was not at issue in Plowman. Id. at 234 n.2. While "evidence that an intoxicated person was observed sleeping in the driver's seat of a parked vehicle, with keys in the ignition and the engine running, by itself, does not mandate a finding of 'operation' under G. L. c. 90, § 24" (emphasis added), id. at 234, such evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to support such a finding. See Sudderth, supra.

Moreover, as the Commonwealth argued to the jury in its closing and as discussed further below, there was sufficient circumstantial evidence from which the jury could have inferred, contrary to the defendant's testimony, that he had operated the vehicle while intoxicated by driving on Old Stockbridge Road prior to pulling off the road. See Commonwealth v. Hilton, 398 Mass. 63, 67-68 (1986); Commonwealth v. Otmishi, 398 Mass. 69, 70-71 (1986); Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010).

2. Impairment. The Commonwealth also produced sufficient evidence of the defendant's impairment based on his ingestion of alcohol and oxycodone. When Great Barrington police Officer Christopher Peebles first encountered the defendant, he was slumped over to the side in his vehicle. Peebles tried knocking on the window a few times, but the defendant did not stir. Peebles ultimately had to open the defendant's unlocked door and shake him to wake him up. The defendant then tried to get the dog that was in his passenger seat to attack Peebles, by yelling, "Kill, Kill." Peebles smelled a "moderate to strong" odor of alcohol emanating from the defendant.

Once Peebles managed to calm down the defendant and the defendant had agreed to step out of the vehicle, the defendant was unsteady on his feet and almost fell out of the vehicle. Peebles had to help him to his feet. The defendant slurred hisspeech and some of the words he was using did not sound like real words to Peebles. The defendant then performed poorly on two field sobriety tests, the nine-step walk and turn and the one-leg stand.

This evidence was more than sufficient to permit a finding of impairment. See, e.g., Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924 (1999); Commonwealth v. Ka, 70 Mass. App. Ct. 137, 140 (2007). Testimony that the defendant initially yelled at Peebles, attempted to sic his dog on him, and was later uncooperative at booking further supports this conclusion. "That a defendant was belligerent, unsteady on his feet and smelled of alcohol are factors that may support an inference of diminished capacity to operate safely due to intoxication." Sudderth, 37 Mass. App. Ct. at 321.

The jury had ample evidence to link this behavior to the defendant's consumption of alcohol and oxycodone. "[I]n cases . . . where the defendant is accused of operating a motor vehicle while under the influence of alcohol, and there is evidence both of the voluntary use of alcohol and of prescription medicine, taken as prescribed, . . . the jury need only to find that the liquor contributed to the defendant's impairment." Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 75 (2010), quoting from Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). Peebles recovered two pill bottles from thedefendant's vehicle, and the defendant told Peebles that he had taken a prescription oxycodone pill about ten hours earlier³ and further admitted to having had one beer. See Bishop, supra at 74, quoting from Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 361 n.7 (1982) (observing that "the effects of combining alcohol and drugs, even prescription drugs," are likely "well known to everybody").⁴ Peebles testified to the visible effects of the combination of alcohol and oxycodone, stating that he believed that the defendant was "highly intoxicated." See Sudderth, 37 Mass. App. Ct. at 321 ("The opinion testimony of police who observed the defendant may also be taken into account"). Based on the moderate to strong odor of alcohol emanating from the defendant, the depth of his stupor when Peebles first tried to rouse him, and the absence of roughly twenty-five pills from a prescription bottle that the defendant had filled about ten hours earlier, the jury were also free to infer that thedefendant had in fact consumed more alcohol and more oxycodone than he admitted to the officer and that he had done so before pulling off of Old Stockbridge Road.

3. Public way. There was also sufficient evidence that the defendant had driven his car on a public way and parked it in an area that was also accessible to the public by motor vehicle. See Belliveau, 76 Mass. App. Ct. at 832, quoting from G. L. c. 90, § 24(1)(a)(1) ("In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place 'upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees'").

The record indicates that the defendant was found in a "dirt rest area" or "pull off" that is accessible to the public and that can only be accessed by Old Stockbridge Road.⁵ Based on the description of the area in which the defendant was located as an area where motorists could pull off of Old Stockbridge to rest, as the defendant himself did, the jury would have been warranted in inferring that the dirt pull off area is "a place to which the public has a right of access by motor vehicle." Commonwealth v. George, 406 Mass. 635, 637 (1990). SeeCommonwealth v. Kiss, 59 Mass. App. Ct. 247, 250 (2003); Commonwealth v. Stoddard, 74 Mass. App. Ct. 179, 182 (2009) ("The essential question under the statute is whether the way is available for public use").

Although our cases have identified certain "typical physical circumstances that may bear on the question whether a...