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-763
COMMONWEALTH
vs.
MARVIN PINEDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of operating under the influence of liquor (OUI),
in violation of G. L. c. 90, § 24 (1) (a) (1). On appeal, he
argues that the Commonwealth's evidence was insufficient to
establish that he was the operator of the vehicle in question,
and that the prosecutor's closing argument resulted in a
substantial risk of a miscarriage of justice. We affirm.
Background. On the afternoon of April 14, 2021, a
Massachusetts State police trooper was travelling along Route 3
when he heard the desk trooper broadcast "to be on the lookout
for a brown Honda Accord traveling northbound on Route 3 in the
Bedford stretch." After the trooper began to head in that
direction, the desk trooper further broadcasted that the Accord
was unable to maintain its lane. The trooper located the car on the exit ramp from Route 3
north to Concord Road in Billerica. The trooper "observed the
brown Honda Accord on the right shoulder, and it had crashed."
There was damage to the car's front end, and a large State
highway sign was knocked onto the ground. The defendant stood
directly in front of the Accord. No one else was either inside
the vehicle or in its direct vicinity. Two other cars were
stopped in the shoulder in front of the Accord; neither of those
two cars showed signs of being in a crash. The operators of the
two stopped cars remained near their vehicles and eventually
drove away.
When the trooper approached the defendant, he was speaking
to his brother-in-law on a cell phone in speaker mode. The
defendant's eyes were bloodshot and glassy, he was swaying back
and forth, and the trooper detected "an odor of an alcoholic
beverage" from him.
Because the trooper could not speak directly to the
defendant due to "a language barrier," he used the defendant's
brother-in-law to "interpret what [he] was saying to [the
defendant] and vice versa." Assisted by the defendant's
brother-in-law's interpretation, and by physically demonstrating
the test himself, the trooper asked the defendant to perform, as
a field sobriety test, the "one-leg stand" test. The defendant
could not perform the test after five attempts, and the trooper
2 "was afraid he was going to fall over and hurt himself." The
trooper concluded that the defendant was intoxicated and placed
him under arrest. While transporting the defendant back to the
Concord State police barracks, the trooper yelled the
defendant's name to keep him from falling asleep in the
backseat, but the defendant was unable to stay awake.
Discussion. 1. Sufficiency of the evidence. "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 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). "The relevant question is
whether the evidence would permit a jury to find guilt, not
whether the evidence requires such a finding." Commonwealth v.
Brown, 401 Mass. 745, 747 (1988).
To establish the defendant's guilt of OUI, the Commonwealth
was required to "prove that (1) the defendant operated a motor
vehicle, (2) on a public way . . . , and (3) while under the
influence of alcohol." Commonwealth v. Hallinan, 491 Mass. 730,
733 (2023). Because the defendant challenges only the
sufficiency of the evidence that he operated the vehicle in
3 question, we focus only on that element. See G. L. c. 90, § 24
(1) (a) (1); Commonwealth v. Coleman, 434 Mass. 165, 167 (2001).
The defendant contends the evidence presented at trial,
even when viewed in the light most favorable to the
Commonwealth, did not establish that he was the operator of the
damaged brown Honda Accord. We disagree.
"Proof of operation of a motor vehicle may rest entirely on
circumstantial evidence" (quotation and citation omitted).
Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006).
Here, the evidence established that the brown Honda Accord
collided with the highway sign just before the trooper arrived.
The trooper had proceeded northbound on Route 3 after receiving
two broadcasts that a brown Honda Accord was travelling along
that road, in that direction, and was unable to maintain its
lane. When he arrived at the exit ramp, the trooper saw a brown
Honda Accord with damage to its front and a highway sign toppled
to the ground. From this evidence, the jury could reasonably
infer that the Accord had just collided with the sign.
The evidence also established that the defendant was
standing in front of the Accord when the trooper arrived. The
defendant was swaying back and forth, and his eyes were
bloodshot and glassy. At the trooper's request, the defendant
agreed to take the "one-leg stand" field sobriety test, and
failed it.
4 "Such circumstances and facts combined with 'the
defendant's cooperation with the field sobriety tests' permit an
inference of operation." Commonwealth v. Manning, 41 Mass. App.
Ct. 18, 22 (1996), quoting Commonwealth v. O'Connor, 420 Mass.
630, 632 (1995). There was no "evidence tending to suggest that
someone other than the defendant was operating" the Accord.
Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 439 (2002). No
one other than the defendant was standing near that car. While
two other cars had stopped on the shoulder in front of the
Accord, neither showed any sign of having been in a crash. The
operators of each car stayed near their vehicles, and there is
no evidence that they objected to the trooper treating the
defendant as the operator of the crashed Accord by subjecting
him to a field sobriety test. See Cromwell, supra at 439; see
also Manning, 41 Mass. App. Ct. at 22 ("Such an inference is
also supported by the failure of the bystanders at the scene to
dispute the defendant's identity as the operator when the
officer obviously was treating him as such by administering the
field sobriety tests"). Viewed as a whole, and in the light
most favorable to the Commonwealth, this evidence was sufficient
to permit a rational jury to find that the defendant was
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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-763
COMMONWEALTH
vs.
MARVIN PINEDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of operating under the influence of liquor (OUI),
in violation of G. L. c. 90, § 24 (1) (a) (1). On appeal, he
argues that the Commonwealth's evidence was insufficient to
establish that he was the operator of the vehicle in question,
and that the prosecutor's closing argument resulted in a
substantial risk of a miscarriage of justice. We affirm.
Background. On the afternoon of April 14, 2021, a
Massachusetts State police trooper was travelling along Route 3
when he heard the desk trooper broadcast "to be on the lookout
for a brown Honda Accord traveling northbound on Route 3 in the
Bedford stretch." After the trooper began to head in that
direction, the desk trooper further broadcasted that the Accord
was unable to maintain its lane. The trooper located the car on the exit ramp from Route 3
north to Concord Road in Billerica. The trooper "observed the
brown Honda Accord on the right shoulder, and it had crashed."
There was damage to the car's front end, and a large State
highway sign was knocked onto the ground. The defendant stood
directly in front of the Accord. No one else was either inside
the vehicle or in its direct vicinity. Two other cars were
stopped in the shoulder in front of the Accord; neither of those
two cars showed signs of being in a crash. The operators of the
two stopped cars remained near their vehicles and eventually
drove away.
When the trooper approached the defendant, he was speaking
to his brother-in-law on a cell phone in speaker mode. The
defendant's eyes were bloodshot and glassy, he was swaying back
and forth, and the trooper detected "an odor of an alcoholic
beverage" from him.
Because the trooper could not speak directly to the
defendant due to "a language barrier," he used the defendant's
brother-in-law to "interpret what [he] was saying to [the
defendant] and vice versa." Assisted by the defendant's
brother-in-law's interpretation, and by physically demonstrating
the test himself, the trooper asked the defendant to perform, as
a field sobriety test, the "one-leg stand" test. The defendant
could not perform the test after five attempts, and the trooper
2 "was afraid he was going to fall over and hurt himself." The
trooper concluded that the defendant was intoxicated and placed
him under arrest. While transporting the defendant back to the
Concord State police barracks, the trooper yelled the
defendant's name to keep him from falling asleep in the
backseat, but the defendant was unable to stay awake.
Discussion. 1. Sufficiency of the evidence. "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 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). "The relevant question is
whether the evidence would permit a jury to find guilt, not
whether the evidence requires such a finding." Commonwealth v.
Brown, 401 Mass. 745, 747 (1988).
To establish the defendant's guilt of OUI, the Commonwealth
was required to "prove that (1) the defendant operated a motor
vehicle, (2) on a public way . . . , and (3) while under the
influence of alcohol." Commonwealth v. Hallinan, 491 Mass. 730,
733 (2023). Because the defendant challenges only the
sufficiency of the evidence that he operated the vehicle in
3 question, we focus only on that element. See G. L. c. 90, § 24
(1) (a) (1); Commonwealth v. Coleman, 434 Mass. 165, 167 (2001).
The defendant contends the evidence presented at trial,
even when viewed in the light most favorable to the
Commonwealth, did not establish that he was the operator of the
damaged brown Honda Accord. We disagree.
"Proof of operation of a motor vehicle may rest entirely on
circumstantial evidence" (quotation and citation omitted).
Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006).
Here, the evidence established that the brown Honda Accord
collided with the highway sign just before the trooper arrived.
The trooper had proceeded northbound on Route 3 after receiving
two broadcasts that a brown Honda Accord was travelling along
that road, in that direction, and was unable to maintain its
lane. When he arrived at the exit ramp, the trooper saw a brown
Honda Accord with damage to its front and a highway sign toppled
to the ground. From this evidence, the jury could reasonably
infer that the Accord had just collided with the sign.
The evidence also established that the defendant was
standing in front of the Accord when the trooper arrived. The
defendant was swaying back and forth, and his eyes were
bloodshot and glassy. At the trooper's request, the defendant
agreed to take the "one-leg stand" field sobriety test, and
failed it.
4 "Such circumstances and facts combined with 'the
defendant's cooperation with the field sobriety tests' permit an
inference of operation." Commonwealth v. Manning, 41 Mass. App.
Ct. 18, 22 (1996), quoting Commonwealth v. O'Connor, 420 Mass.
630, 632 (1995). There was no "evidence tending to suggest that
someone other than the defendant was operating" the Accord.
Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 439 (2002). No
one other than the defendant was standing near that car. While
two other cars had stopped on the shoulder in front of the
Accord, neither showed any sign of having been in a crash. The
operators of each car stayed near their vehicles, and there is
no evidence that they objected to the trooper treating the
defendant as the operator of the crashed Accord by subjecting
him to a field sobriety test. See Cromwell, supra at 439; see
also Manning, 41 Mass. App. Ct. at 22 ("Such an inference is
also supported by the failure of the bystanders at the scene to
dispute the defendant's identity as the operator when the
officer obviously was treating him as such by administering the
field sobriety tests"). Viewed as a whole, and in the light
most favorable to the Commonwealth, this evidence was sufficient
to permit a rational jury to find that the defendant was
operating the Accord when it crashed into the highway sign on
the exit ramp. See Commonwealth v. Shea, 324 Mass. 710, 713
(1949).
5 2. The prosecutor's closing argument. The defendant
argues that the prosecutor's closing argument was improper
because the suggestion the defendant could have struck a
pedestrian or another motorist was speculative and inflammatory.
The prosecutor stated,
"The consequences thus far have been a street sign that was knocked over, but they could've been far worse were there a pedestrian or another motorist that got in the way of the Defendant operating the vehicle, his vehicle, in the state of mind that he was in."
We agree with the Commonwealth that this statement was
"better left unsaid." "Arguments that are unsupported by the
evidence and thus are speculative and conjectural are, of
course, improper." Commonwealth v. Kozec, 399 Mass. 514, 522
(1987). The prosecutor's statement here improperly speculated
about dangers to the public posed by the defendant's impaired
driving, as opposed to the collision that did occur, and through
the phrase "thus far" it arguably hinted at the public safety
consequences of an acquittal.1
Because the defendant did not object to this statement at
trial, we review to determine whether it resulted in a
1 The defendant was not on trial for negligent operation. In such cases, it might be proper to argue that the defendant's manner of operation created a risk of danger that had not yet occurred. See Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015) ("The question [in a negligent operation case] is whether the defendant's driving had the potential to cause danger to the public, not whether it actually did").
6 substantial risk of a miscarriage of justice. See Commonwealth
v. Sanders, 101 Mass. App. Ct. 503, 511 (2022). An error during
closing argument creates a substantial risk of a miscarriage of
justice "if we have a serious doubt whether the result of the
trial might have been different had the error not been made."
Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 91 (2019),
quoting Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
Considered "in the context of the entire argument, the
judge's instructions to the jury, and the evidence at trial," we
conclude that the prosecutor's statement did not give rise to a
substantial risk of a miscarriage of justice. Commonwealth v.
Ruiz, 442 Mass. 826, 835 (2004). The statement was brief and
"not so rousing or inflammatory as to sweep the jury beyond
rational examination of the evidence." Commonwealth v.
Lassiter, 80 Mass. App. Ct. 125, 132 (2011). The evidence that
the defendant had been driving while intoxicated was strong. In
addition, the judge's instruction to the jury that closing
argument is not evidence, which he provided at three separate
times, mitigated "any prejudice in the final argument." Kozec,
399 Mass. at 517. The judge further instructed the jury that
their "determination of the facts must not be based on
speculation or conjecture," and they may not "guess or speculate
about things about which there is no evidence." We presume that
7 jurors follow a judge's clear instructions. See Commonwealth v.
Helfant, 398 Mass. 214, 228 (1986).
Judgment affirmed.
By the Court (Vuono, Massing & Toone, JJ.2),
Assistant Clerk
Entered: March 22, 2024.
2 The panelists are listed in order of seniority.