NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-688
COMMONMWEALTH
vs.
RICHARD MWANIKI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of operating a motor vehicle while under the
influence of alcohol (OUI), in violation of G. L. c. 90,
§ 24 (1) (a) (1), and negligent operation of a motor vehicle
(negligent operation), in violation of G. L. c. 90,
§ 24 (2) (a). On appeal, the defendant argues that (1) there
was insufficient evidence of impairment for OUI; (2) there was
insufficient evidence of negligent operation; (3) the judge
erred by allowing the arresting trooper to testify to his
opinion that the defendant was "bombed"; and (4) the judge's OUI
jury instruction created a substantial risk of miscarriage of
justice. We affirm.
Background. We summarize the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On May 3, 2019, at around
midnight, a Massachusetts State trooper saw a black Toyota Camry
driving in front of him in the left lane of Route 24 North in
Raynham. The Camry drifted to the left and nearly struck the
guardrail "in like a sideswipe manner" before returning to the
travel lane. The trooper activated his lights and siren and the
Camry pulled over to the right shoulder of the road. The
defendant was the sole occupant of the vehicle. During their
initial interaction, the trooper smelled alcohol and noticed the
defendant's eyes were bloodshot and glassy. The defendant
stated that he was had been at a pub in Bridgewater, where he
had two large beers. The trooper noticed during their
conversation that the defendant's speech was slurred.
The trooper then ordered the defendant out of the vehicle.
The defendant was very unsteady and had to use the car for
balance as he moved to its front. He agreed to perform field
sobriety tests. The defendant failed the nine step walk and
turn test, which involved walking nine steps, pivoting, and
returning nine steps toward the trooper. The defendant was
unable to stand in the instructional position, took the wrong
number of steps, used his arms for balance, did not follow
instructions after the ninth step, and turned improperly. He
also failed the one-leg stand test, which required him to raise
one of his feet six inches off the ground for thirty seconds
2 while holding his arms by his sides. The defendant leaned to
the side; put his foot down after four seconds; and, on a second
try, put his foot down after six seconds. The defendant was
arrested and almost fell on the way to the cruiser.
During trial, the trooper testified that he formed an
opinion based on the defendant's appearance, speech, and
performance on the field sobriety tests that the defendant was
"bombed." He elaborated that "bombed" meant "heavily
intoxicated." The defendant did not object to the testimony.
Discussion. 1. Sufficiency of evidence of impairment. We
review the evidence in the light most favorable to the
Commonwealth to determine "whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt" (citation omitted). Commonwealth v. Quinones,
95 Mass. App. Ct. 156, 162 (2019). Inferences supporting a
conviction "need only be reasonable and possible" and "need not
be necessary or inescapable" (citation omitted). Id.
The elements of operating under the influence are
(1) operation of a vehicle, (2) on a public way, (3) while under
the influence of intoxicating liquor. G. L. c. 90,
§ 24 (1) (a) (1). See Commonwealth v. AdonSoto, 475 Mass. 497,
509-510 (2016). The defendant challenges only the sufficiency
of evidence that he was under the influence.
3 The jury heard testimony that the defendant's vehicle
nearly drove into a guardrail before he displayed some of "the
classic indicia of impairment" -- an odor of alcohol emanating
from him, glassy and bloodshot eyes, and slurred speech.
Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). In addition,
the trooper testified regarding the defendant's admission to
drinking, difficulty keeping his balance, and inability to
perform the field sobriety tests as instructed. Lastly, the
trooper opined that the defendant was "bombed" or heavily
intoxicated. This evidence was sufficient to permit the trier
of fact to find that the defendant's consumption of alcohol
resulted in his diminished capacity to operate the motor vehicle
safely. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385,
392-393 (2017).
2. Sufficiency of evidence of negligence. Operating to
endanger requires proof that the defendant "(1) operated a motor
vehicle (2) upon a public way (3) negligently so that the lives
or safety of the public might be endangered." Commonwealth v.
Ross, 92 Mass. App. Ct. 377, 379 (2017). The defendant contends
that there was insufficient evidence that he operated his
vehicle negligently.
We are not persuaded by the defendant's assertion that the
proof of negligence was deficient because the only evidence the
jury could have found was "one instance of swerving and
4 immediately correcting" in light traffic at a late hour. To
satisfy the third element, the Commonwealth must present proof
that the defendant's conduct "might have endangered the safety
of the public, not that it in fact did." Commonwealth v.
Ferreira, 70 Mass. App. Ct. 32, 35 (2007). Here, in addition to
swerving toward and nearly colliding with the guardrail, the
evidence showed, as noted above, that the defendant admitted
that he had consumed two large beers earlier that night, failed
to perform field sobriety tests satisfactorily, and appeared
heavily intoxicated. The defendant's erratic driving coupled
with evidence of his intoxication provided the jury with an
adequate basis to find the defendant guilty of negligent
operation. See Ross, 92 Mass. App. Ct. at 380 (affirming
conviction of negligent operation based on evidence of
intoxication and excessive speeding at night on residential
road); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 254-255
(2006) (affirming conviction of negligent operation based on
evidence of intoxication, meandering back and forth over fog
line, crossing two lanes of traffic, and nearly striking large
road sign). Cf. Commonwealth v. Teixeira, 95 Mass. App. Ct.
367, 367 (2019) (affirming conviction of negligent operation
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-688
COMMONMWEALTH
vs.
RICHARD MWANIKI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of operating a motor vehicle while under the
influence of alcohol (OUI), in violation of G. L. c. 90,
§ 24 (1) (a) (1), and negligent operation of a motor vehicle
(negligent operation), in violation of G. L. c. 90,
§ 24 (2) (a). On appeal, the defendant argues that (1) there
was insufficient evidence of impairment for OUI; (2) there was
insufficient evidence of negligent operation; (3) the judge
erred by allowing the arresting trooper to testify to his
opinion that the defendant was "bombed"; and (4) the judge's OUI
jury instruction created a substantial risk of miscarriage of
justice. We affirm.
Background. We summarize the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On May 3, 2019, at around
midnight, a Massachusetts State trooper saw a black Toyota Camry
driving in front of him in the left lane of Route 24 North in
Raynham. The Camry drifted to the left and nearly struck the
guardrail "in like a sideswipe manner" before returning to the
travel lane. The trooper activated his lights and siren and the
Camry pulled over to the right shoulder of the road. The
defendant was the sole occupant of the vehicle. During their
initial interaction, the trooper smelled alcohol and noticed the
defendant's eyes were bloodshot and glassy. The defendant
stated that he was had been at a pub in Bridgewater, where he
had two large beers. The trooper noticed during their
conversation that the defendant's speech was slurred.
The trooper then ordered the defendant out of the vehicle.
The defendant was very unsteady and had to use the car for
balance as he moved to its front. He agreed to perform field
sobriety tests. The defendant failed the nine step walk and
turn test, which involved walking nine steps, pivoting, and
returning nine steps toward the trooper. The defendant was
unable to stand in the instructional position, took the wrong
number of steps, used his arms for balance, did not follow
instructions after the ninth step, and turned improperly. He
also failed the one-leg stand test, which required him to raise
one of his feet six inches off the ground for thirty seconds
2 while holding his arms by his sides. The defendant leaned to
the side; put his foot down after four seconds; and, on a second
try, put his foot down after six seconds. The defendant was
arrested and almost fell on the way to the cruiser.
During trial, the trooper testified that he formed an
opinion based on the defendant's appearance, speech, and
performance on the field sobriety tests that the defendant was
"bombed." He elaborated that "bombed" meant "heavily
intoxicated." The defendant did not object to the testimony.
Discussion. 1. Sufficiency of evidence of impairment. We
review the evidence in the light most favorable to the
Commonwealth to determine "whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt" (citation omitted). Commonwealth v. Quinones,
95 Mass. App. Ct. 156, 162 (2019). Inferences supporting a
conviction "need only be reasonable and possible" and "need not
be necessary or inescapable" (citation omitted). Id.
The elements of operating under the influence are
(1) operation of a vehicle, (2) on a public way, (3) while under
the influence of intoxicating liquor. G. L. c. 90,
§ 24 (1) (a) (1). See Commonwealth v. AdonSoto, 475 Mass. 497,
509-510 (2016). The defendant challenges only the sufficiency
of evidence that he was under the influence.
3 The jury heard testimony that the defendant's vehicle
nearly drove into a guardrail before he displayed some of "the
classic indicia of impairment" -- an odor of alcohol emanating
from him, glassy and bloodshot eyes, and slurred speech.
Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). In addition,
the trooper testified regarding the defendant's admission to
drinking, difficulty keeping his balance, and inability to
perform the field sobriety tests as instructed. Lastly, the
trooper opined that the defendant was "bombed" or heavily
intoxicated. This evidence was sufficient to permit the trier
of fact to find that the defendant's consumption of alcohol
resulted in his diminished capacity to operate the motor vehicle
safely. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385,
392-393 (2017).
2. Sufficiency of evidence of negligence. Operating to
endanger requires proof that the defendant "(1) operated a motor
vehicle (2) upon a public way (3) negligently so that the lives
or safety of the public might be endangered." Commonwealth v.
Ross, 92 Mass. App. Ct. 377, 379 (2017). The defendant contends
that there was insufficient evidence that he operated his
vehicle negligently.
We are not persuaded by the defendant's assertion that the
proof of negligence was deficient because the only evidence the
jury could have found was "one instance of swerving and
4 immediately correcting" in light traffic at a late hour. To
satisfy the third element, the Commonwealth must present proof
that the defendant's conduct "might have endangered the safety
of the public, not that it in fact did." Commonwealth v.
Ferreira, 70 Mass. App. Ct. 32, 35 (2007). Here, in addition to
swerving toward and nearly colliding with the guardrail, the
evidence showed, as noted above, that the defendant admitted
that he had consumed two large beers earlier that night, failed
to perform field sobriety tests satisfactorily, and appeared
heavily intoxicated. The defendant's erratic driving coupled
with evidence of his intoxication provided the jury with an
adequate basis to find the defendant guilty of negligent
operation. See Ross, 92 Mass. App. Ct. at 380 (affirming
conviction of negligent operation based on evidence of
intoxication and excessive speeding at night on residential
road); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 254-255
(2006) (affirming conviction of negligent operation based on
evidence of intoxication, meandering back and forth over fog
line, crossing two lanes of traffic, and nearly striking large
road sign). Cf. Commonwealth v. Teixeira, 95 Mass. App. Ct.
367, 367 (2019) (affirming conviction of negligent operation
despite absence of erratic driving where defendant consumed
alcohol and drove substantially below speed limit while holding
cell phone one foot from his face).
5 3. Opinion testimony regarding sobriety. The defendant
further argues that the trooper's testimony that, in his
opinion, the defendant was "bombed" should not have been
admitted. He contends that this testimony impermissibly spoke
to the ultimate question whether the defendant was operating
while under the influence of intoxicating liquor. The defendant
did not object to the testimony or request a curative jury
instruction at trial, therefore "[o]ur review is limited to
whether there was error, and if so, whether it created a
substantial risk of a miscarriage of justice." Commonwealth v.
Orben, 53 Mass. App. Ct. 700, 703 (2002).
"[L]ay witnesses, including police officers, may not opine
as to the ultimate question whether the defendant was operating
while under the influence, but they may testify to his apparent
intoxication" (citation omitted). Commonwealth v. Canty, 466
Mass. 535, 541 (2013). "Provided that a witness does not
directly offer an opinion regarding the defendant's guilt or
innocence in a criminal case, we have no rule in Massachusetts
prohibiting an opinion that touches on an ultimate issue"
(citation omitted). Id. at 543.
Here, the trooper testified to the defendant's apparent
intoxication, but did not opine as to the ultimate question of
whether the defendant was operating a motor vehicle while under
the influence of intoxicating liquor. The trooper's use of the
6 colloquial term "bombed" to describe the defendant's
intoxication merely represents a lay opinion regarding the level
of the defendant's insobriety. Where the trooper testified to
the specific bases for his opinion, we discern no risk that the
jury inferred any extraevidentiary foundation for it. Moreover,
any such risk was mitigated by the judge's instruction that the
jury's determination of the facts "must not be based on
speculation or conjecture." See Commonwealth v. Johnston, 467
Mass. 674, 692 (2014) (jury presumed to follow judge's
instructions). There was no error in the testimony regarding
the defendant's sobriety and thus no risk that justice was
miscarried by its admission.
4. Jury instructions. Finally, the defendant claims error
in the judge's instructions to the jury on the element of
impairment for the OUI charge. There was no objection to the
instructions, thus our review is for substantial risk of a
miscarriage of justice. AdonSoto, 475 Mass. at 510.
The defendant's arguments all stem from the use of the word
"bombed" by the trooper. Given our conclusion that the
trooper's testimony about the defendant's level of intoxication
was proper, we are not persuaded that any curative instruction
was required. Likewise, where the defendant failed to request
an instruction clarifying the propriety of lay testimony
concerning intoxication, we discern no abuse of discretion in
7 the judge's failure to provide one sua sponte. We further note
that any risk of prejudice to the defendant was diminished by
the judge's explicit final instruction to the jury that they
must determine whether the defendant was under the influence of
alcohol, and that they may consider any opinion they heard about
the defendant's sobriety "and accept it or reject it." See
Canty, 466 Mass. at 545. The judge's instructions on impairment
were otherwise comprehensive and clear, and we presume the jury
followed them. See Commonwealth v. Olmande, 84 Mass. App. Ct.
231, 237 (2013).
Judgments affirmed.
By the Court (Hand, Hershfang & Brennan, JJ.1),
Assistant Clerk
Entered: February 15, 2024.
1 The panelists are listed in order of seniority.