Commonwealth v. Oyewole

2 N.E.3d 189, 84 Mass. App. Ct. 669, 2014 WL 30751, 2014 Mass. App. LEXIS 1

• Court: Massachusetts Appeals Court
• Decided: January 7, 2014
• Docket: No. 12-P-906
• Status: Published

Opinions

Cohen, J.

After a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while his driver’s license was suspended for operating while under the influence of liquor (OUI). See G. L. c. 90, § 23, third par. On appeal he claims that his motion for a required finding of not guilty should have been allowed because the Commonwealth was required and failed to prove (1) that he had not been granted a hardship license, and (2) that he was on notice that his license was suspended. We affirm.

Background. At the defendant’s brief trial, the Commonwealth called two witnesses and introduced two documents; the defendant did not testify and presented no evidence. Officer Michael Patterson of the Wilmington police department testified that he was on patrol at approximately 12:30 a.m. on November 26, 2009, when he saw a motor vehicle traveling in the opposite direction without illuminated headlights. Officer Patterson activated his emergency lights, made a U-turn, and “conducted a motor vehicle stop.” When the vehicle stopped, Officer Patterson approached the driver (later identified as the defendant) and asked him for his driver’s license and registration. The defendant, who was the only occupant of the vehicle, provided the officer with what he described in testimony as “a license,” and with a registration showing that the vehicle was a rental vehicle. On cross-examination, Officer Patterson testified that he confiscated the license shown to him by the defendant; however, the license was not produced at trial, and no further information about it was developed. When the stop was completed, Officer Patterson placed the defendant under arrest for driving with a suspended license.¹

Sergeant Christopher Ahem of the Wilmington police department testified that he was the shift supervisor on the night in question, and that he arrived at the scene while the motor vehicle stop was in progress. Sergeant Ahem, who booked the defendant at the police station, recited the information that had been provided by the defendant: his name, address, date of birth, driver’s license number, and Social Security number. On cross-examination Ahem testified that the defendant also stated that he was employed as a “caregiver.”

At the conclusion of the officers’ testimony, the Commonwealth introduced two exhibits before resting its case. The first exhibit (exhibit 1) was a two-page document obtained from the Registry of Motor Vehicles (RMV) and bearing the attestation that the information contained therein was a tme representation of information contained in RMV records. The document, which depicted the defendant’s most recent and previous license photographic images, and listed the defendant’s name, address, date of birth, Social Security number, and driver’s license number, was offered by the prosecutor solely to corroborate the defendant’s biographical information. The judge allowed it in evidence for that purpose.²

The second exhibit (exhibit 2) was a certified copy of the criminal docket in a District Court case arising from a complaint, dated August 4, 2009, charging the defendant with OUI, negligent operation of a motor vehicle, and a marked lanes violation.³ The second page of exhibit 2, entitled “Offenses,” identified the “Disposition Date” for all three charges as “10-21-09.” With respect to the OUI charge, the box entitled “Disposition Method” showed a check mark next to the printed words: “Admission to Sufficient Facts accepted after colloquy and 278, § 29D warning.” The box entitled “Sentence or Disposition” showed a check mark next to the printed words: “Sufficient facts found but continued without a finding until,” next to which was the handwritten date of “10-21-2010.” Also contained in the “Sentence or Disposition” box were the following handwritten notations: “ASAP 24-D,” “60 day license loss,” “24Q Evaluation,” and “Alien warning.”

The Commonwealth’s position at trial was that exhibit 2 sufficed to establish (1) that the defendant’s license was suspended when he was operating his vehicle on November 26, 2009, because that date was within the sixty-day suspension period ordered as part of the October 21, 2009, disposition of his OUI charge, and (2) the defendant was on notice that his license was suspended as a component of his sentence. In arguing for a required finding of not guilty, the defendant contended that the Commonwealth was obliged to prove that he had not obtained a hardship license pursuant to G. L. c. 90, § 24D, and that exhibit 2 did not establish that he was on notice that his license was immediately suspended for sixty days as of the date of the October 21, 2009, disposition.

Discussion. In reviewing the denial of a motion for a required finding of not guilty, we examine the evidence presented by the Commonwealth and consider whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979). We view the evidence, and all permissible inferences drawn from the evidence, in the light most favorable to the Commonwealth. Id. at 676-677.

It is well established that “[t]o prove the crime of operating a motor vehicle after revocation or suspension of license for operating while under the influence of alcohol, G. L. c. 90, § 23, [third⁴] par., the Commonwealth must prove the following: (1) that the defendant operated a motor vehicle; (2) that at the time of that operation the defendant’s license was revoked or suspended; (3) that the license suspension or revocation was pursuant to a violation of one of the specified statutory sections (including [OUI] in violation of G. L. c. 90, § 24[l][a]); and (4) that the defendant was notified that his license had been suspended or revoked.” Commonwealth v. Deramo, 436 Mass. 40, 50 (2002).

The defendant posits that this statement of the law is incomplete because, in his view, the Commonwealth also is required to negate the possibility that the suspended operator’s license has been restored. He reaches this conclusion on the basis of the language of § 23, which reads in relevant part: “Any person convicted of operating a motor vehicle after his license to operate has been suspended or revoked . . . and prior to the restoration of such license . . . shall be punished . . .” (emphasis supplied). G. L. c. 90, § 23, as appearing in St. 1986, c. 620, § 3. However, this language simply states the obvious: to be guilty of operating with a suspended license, the defendant must be shown to have operated a motor vehicle during the period when the suspension was in effect.

Here, exhibit 2 established that the defendant’s license was suspended at the time of the alleged offense. See Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 103 (2011) (certified copy of OUI conviction admissible to prove that defendant’s license was suspended at time of subsequent arrest for operating with license suspended for OUI). “[Djocket sheets are part of the court records and may be presented as prima facie evidence of the facts recorded therein.” Northeast Line Constr. Corp. v. J.E. Guertin Co., 80 Mass. App. Ct. 646, 651 (2011), quoting from Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999), and cases cited. Among the facts established by the docket sheets are that the defendant was present in court on October 21, 2009, when, after a colloquy, he admitted to sufficient facts to warrant a guilty finding on the charge of OUI; and that he received a sentence comprised of a sixty-day suspension of his driver’s license, a referral for an assessment of the level of his addiction to alcohol in accordance with G. L. c. 90, § 24Q, and an assignment to “ASAP,”⁵ an education and treatment program, in accordance with G. L. c. 90, § 24D.

In addition, the judge reasonably could infer from the docket sheets, when considered together with the provisions of § 24D, that the defendant’s sixty-day suspension commenced on October 21, 2009. Section 24D provides that certain categories of persons convicted of or charged with OUI may, with their consent, be placed on probation for not more than two years and, as a condition of probation, be assigned to a driver alcohol education program, and have their driver’s licenses suspended for no less than forty-five days and no more than ninety days. Section 24D, as appearing in St. 2003, c. 28, § 13, further provides that “[u]pon each disposition under this section, the defendant will surrender any Massachusetts drivers license or permit in his possession to the probation department of that court. The probation department will dispose of the license, and the court shall report the disposition in the case in a manner as determined by the registrar.” In short, the termination of the defendant’s driving privilege is, in the ordinary course, effectuated “[ujpon disposition.”

In the present case, the judge reasonably could find that the defendant’s sixty-day suspension began immediately upon the disposition of his OUI case. There is nothing on the docket sheets to suggest that the commencement of the suspension was delayed; and even though there was evidence that the defendant produced “a license” of some sort when stopped by Officer Patterson, there was no evidence as to its character or authenticity, or how it came to be (or remain) in the defendant’s possession. On the state of the evidence, the judge reasonably could find that the suspension went into effect as of October 21, 2009.

The judge also reasonably could find that the sixty-day suspension remained in effect thirty-six days later, on November 26, 2009. Even if the defendant might have been eligible to obtain a hardship license while participating in the § 24D program,⁶ it was not the Commonwealth’s burden to negate that possibility. The unembellished evidence of the defendant’s possession of “a license” did not conclusively establish that his privilege to drive had been restored, even if considered with the evidence elicited by the defendant on cross-examination that, at booking, the defendant gave his occupation as a caregiver. Viewing the evidence in the light most favorable to the Commonwealth, the judge was free to find, based upon the prima facie evidence contained in exhibit 2, that the defendant’s license was suspended for sixty days from and after October 21, 2009. See Commonwealth v. Beaulieu, 79 Mass. App. Ct. at 103.

Finally, the judge was entitled to find that the defendant was on notice of the suspension. The judge reasonably could infer from exhibit 2 that the defendant, whose presence in court on October 21, 2009, is undeniable, was placed on notice that, as a consequence of his admission to sufficient facts, he was under court order prohibiting his operation of a motor vehicle for the ensuing sixty days.⁷ Notice, like other facts, may be ascertained from circumstantial evidence. Furthermore, “[t]o be permissible, an inference need only be reasonable and possible, not necessary or inescapable. Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense.” Commonwealth v. Fitzpatrick, 463 Mass. 581, 590-591 (2012) (quotations and citations omitted). Where the defendant was present in court, tendered a plea, and received a disposition of his OUI charge consistent with G. L. c. 90, § 24D, the judge was well entitled to draw the reasonable, commonsense inference that the defendant was put on notice of the terms under which his case was resolved.

Even if we were to assume, arguendo, that the bare evidence that the defendant possessed “a license” permitted a contrary inference that the defendant left the court house on October 21, 2009, not knowing that his license was suspended, the Commonwealth’s proof was sufficient. The Commonwealth was required to prove notice, not that the defendant had actual knowledge of the suspension. See Commonwealth v. Crosscup, 369 Mass. 228, 236 (1975). Furthermore, to the extent that conflicting inferences arose from the evidence, it was for the judge to determine “where the truth lies, for the weight and credibility of the evidence is wholly within [the fact finder’s] province.” Commonwealth v. Fitzpatrick, supra at 591 (quotations and citations omitted).

The defendant was, of course, entitled to introduce relevant evidence tending to show nonreceipt of notice. Commonwealth v. Crosscup, supra at 240. However, the Commonwealth was not required to “exclude every reasonable hypothesis of innocence to prove its case” if, as here, “the record viewed in its entirety supports a conclusion of guilt beyond a reasonable doubt.” Commonwealth v. Platt, 440 Mass. 396, 401 (2003) (quotations and citations omitted).

Judgment affirmed.

1 Prior to trial, the judge agreed with the defendant that there should be no reference to any “license check,” on the theory that such evidence would be inadmissible hearsay. The prosecutor adhered to this ruling in examining the witnesses.

2 The defendant contended below that the admission of exhibit 1 violated his confrontation rights under the Sixth Amendment to the United States Constitution; however, the judge ruled that unlike the RMV certificate at issue in Commonwealth v. Parenteau, 460 Mass. 1, 8-10 & n.9 (2011), the document here was admissible as a nontestimonial business record for the purpose for which it was offered.

3 In accordance with Commonwealth v. Parenteau, supra at 9-10, and Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 5-7 (2010), the judge ruled that the admission in evidence of exhibit 2, a public record created for the administration of court affairs, did not violate the defendant’s confrontation rights.

4 Since the decision in Commonwealth v. Deramo, 436 Mass. 40, 50 (2002), § 23 was amended to include a new second paragraph. St. 2009, c. 27, § 67.

5 The acronym ASAP stands for Alcohol Safety Action Program, a program “designed to decrease the incidence of drunk driving.” Massachusetts Auto. Rating & Acc. Prevention Bureau v. Commissioner of Ins., 389 Mass. 824, 843 (1983).

6 Section 24D provides, in relevant part, that “a defendant may immediately upon entering a program pursuant to this section apply to the registrar for consideration of a limited license for hardship purposes. The registrar, at his discretion, may issue such license under such terms and conditions as he may prescribe. Any such license shall be valid for an identical 12 hour period, 7 days a week.” G. L. c. 90, § 24D, as appearing in St. 2003, c. 28, § 13.

7 There is no merit to the defendant’s suggestion that, in deciding the notice issue, the judge erroneously may have relied upon the RMV documents introduced as exhibit 1. As acknowledged in the defendant’s brief, that exhibit “did not even include any mention of notice to the defendant.” Furthermore, it was offered and admitted only for the nontestimonial purpose of corroborating the defendant’s biographical information. There being no contrary indication, we presume that the judge considered that exhibit only for the limited purpose for which he admitted it. See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002).