Commonwealth v. Chad Roach.

• Court: Massachusetts Appeals Court
• Decided: July 5, 2023
• Docket: 22-P-0364
• Status: Unpublished

Opinion

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

22-P-364

COMMONWEALTH

vs.

CHAD ROACH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the District Court, the

defendant was convicted of operating under the influence of

intoxicating liquor (OUI), third offense, and sentenced to six

months in the house of correction.1 The defendant, who moved

unsuccessfully for a required finding of not guilty at the close

of the Commonwealth's case, appeals from his conviction for OUI.2

Because we conclude that the evidence was sufficient to prove

the elements of OUI beyond a reasonable doubt, we affirm.

Facts. "When reviewing the denial of a motion for a

required finding of not guilty, 'we consider the evidence

introduced at trial in the light most favorable to the

1 He was acquitted of a separate charge of negligent operation of a motor vehicle. 2 He does not independently challenge his conviction of the

subsequent offense. Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.'" Commonwealth v. Ross, 92 Mass. App. Ct.

377, 378 (2017), quoting Commonwealth v. Oberle, 476 Mass. 539,

547 (2017). Because the defendant challenges only the

sufficiency of the evidence of operation and intoxication, we

focus on those elements. See G. L. c. 90, § 24 (1) (a) (1).

At approximately 4 P.M. on March 8, 2020, the defendant's

neighbor was on the balcony of her apartment when she saw the

defendant's car make a wide turn from Route 28 in Middleborough

into the parking lot of their housing complex and drive "at an

alarmingly high rate of speed" into the parking area. The

neighbor watched as the car continued through the lot, nearly

sideswiping a number of the cars parked there, and then felt the

building shake as the car crashed through a bush and into the

building. The neighbor called the police. Officer Andrew

Lefebvre arrived approximately twenty minutes later and found

the defendant in the driver's seat of his car alone and

unconscious. The car was covered in debris from the bush and

was not parked properly.

Officer Lefebvre tapped on the window and roused the

defendant. The officer observed that the defendant smelled of

an alcoholic beverage, was slurring his words, and was

"definitely unsteady on his feet." The defendant admitted to

2 having consumed "four or five beers" earlier in the day. He

also admitted that he "had been drinking, had been driving" at

approximately 11 A.M., and had been "sleep[ing] it off." The

key was not in the ignition, but the hood and the grille of the

defendant's car were still warm.3 The defendant agreed to

perform field sobriety assessments; he was able to count

backward and recite the alphabet as requested, but was too

unsteady to safely complete the physical tests offered to him.

Officer Lefebvre, who had formed the opinion that the defendant

was intoxicated, placed him under arrest for OUI.

Discussion. The defendant first argues that the

Commonwealth's evidence on the element of operation was

insufficient because there was no direct evidence that he drove

his car. "The absence of . . . direct evidence [of operation]

. . . is not dispositive, as 'a conviction may rest entirely on

circumstantial evidence.'" Commonwealth v. Cromwell, 56 Mass.

App. Ct. 436, 438–439 (2002), quoting Commonwealth v. Woods, 414

Mass. 343, 354, cert. denied, 510 U.S. 815 (1993). There is

ample circumstantial evidence of operation in the evidence here.

Specifically, the neighbor's observation of the defendant's

car driving off Route 28 and into the housing complex's parking

3 As we note above, these events occurred in March 2020. The judge could have inferred from the trial testimony that the weather was cold at the time.

3 lot, coupled with the defendant's admission to having driven

home to "sleep . . . off" the effects of the beer he had

consumed, and the police officers' discovery of the defendant

unconscious in his recently-driven car was enough to prove the

defendant's operation of the vehicle.4 See Commonwealth v.

Petersen, 67 Mass. App. Ct. 49, 52-53 (2006) (evidence of warm

engine, defendant's ownership of vehicle and possession of keys

to car, defendant's apparent intoxication and agreement to

perform sobriety tests, and lack of evidence indicating that

someone else operated car, together sufficient to prove

defendant's operation). See also Ross, 92 Mass. App. Ct. at 378

("The inferences that support a conviction 'need only be

reasonable and possible; [they] need not be necessary or

inescapable'" [citation omitted]). Cf. Commonwealth v. Adams,

421 Mass. 289, 291 (1995) (defendant's admission of operation

not enough to warrant jury's finding on that element unless

corroborated by other evidence).

Regarding the element of intoxication, the evidence

likewise was sufficient. As the judge noted at the conclusion

of the trial, that evidence included the neighbor's account of

the defendant's erratic driving; the officers' observations of

4 It was also sufficient to prove the element of public way although, as we have noted, the defendant does not explicitly challenge the sufficiency of the evidence on that point. See G. L. c. 90, § 1.

4 how the defendant looked, smelled, and acted; the defendant's

admission that he had consumed alcohol, albeit earlier in the

day; and the officers' opinion that the defendant was

intoxicated some twenty minutes after he arrived in the parking

lot. That evidence, in combination, was plainly sufficient to

prove that the defendant was under the influence of alcohol when

he drove into the parking area of the apartment complex. See

Commonwealth v. Manning, 41 Mass. App. Ct. 18, 19, 21-22 (1996)

(manner in which vehicle was parked, combined with odor of

alcohol, defendant's admission to being drunk, and defendant's

failure on multiple field sobriety tests sufficient to prove

OUI).

Judgment affirmed.

By the Court (Vuono, Hand & Hodgens, JJ.5),

Clerk

Entered: July 5, 2023.

5 The panelists are listed in order of seniority.