COMMONWEALTH v. SLOCOMB (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from her conviction, after a jury-waived trial, of operating while under the influence of alcohol, third offense.² On appeal, she argues that (1) the judge committed prejudicial error in admitting evidence of her refusal to take field sobriety tests (FSTs); and (2) the judge erred in concluding that she operated her car “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.” G. L. c. 90, § 24 (1) (a) (1). We reject both arguments and therefore affirm.

Assuming without deciding that the judge erroneously admitted evidence of the defendant's refusal to take FSTs, see Commonwealth v. McGrail, 419 Mass. 774, 778 (1995), we conclude that any such error was harmless beyond a reasonable doubt. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The claimed “refusal” evidence was relevant only to whether her operation was impaired by alcohol. But the defendant had stipulated that her blood alcohol content was 0.24 percent at the relevant time.³ She was convicted not on an impaired operation theory but instead on a per se theory: that she had operated her car “with a percentage, by weight, of alcohol in [her] blood of eight one-hundredths or greater.” G. L. c. 90, § 24 (1) (a) (1). See Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 134 (2018). Thus we are “sure that [any] error did not influence the [finder of fact]” (citation omitted). Flebotte, supra.

The defendant next challenges the judge's conclusion that the privately owned condominium complex parking lot in which she was operating her car was a way or place to which members of the public had access as invitees or licensees. We “reexamine [that conclusion] independently.” Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549 (1996).

“No specific license or invitation need be granted to the particular driver charged with violating the statute, i.e., it is sufficient if the physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel to invitees or licensees of the abutters.” Commonwealth v. Hart, 26 Mass. App. Ct. 235, 238 (1988). “[I]t is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.” Smithson, 41 Mass. App. Ct. at 549.

Here, there was testimony from which the judge could reasonably have found that the parking lot was readily accessible from a paved public way; that it was adjacent to, or part of, a loop road that ran through a five-building area of the condominium complex; that it was paved and illuminated by street lights; that there was no gate barring entrance; that there was no sign prohibiting access; that a police officer routinely drove through it; that the lot contained thirty to forty spaces, which were not individually numbered or otherwise designated; that the lot was near a condominium-owned swimming pool; and that guests of residents were “welcomed.”

Although there was a small sign stating, “No trespassing ․ trespassers will be prosecuted,” on the door to a maintenance garage accessible from the parking lot, that sign was approximately seventy to eighty feet from where the defendant's car was located. The judge could reasonably have found that this sign would be understood to refer to the garage itself rather than to the entire parking lot. There was also a small “Green Briar Estate Condo sticker parking only” sign posted at one location in the parking lot. The judge could reasonably have found that the sign was in that part of the lot closer to the condominium buildings, not that part of the lot adjacent to a line of woods, which is where the defendant was found in her car. The judge could also reasonably find that the “sticker parking only” sign, being placed at a point within the lot rather than at its entrance, reflected the condominium association's expectation that persons without parking stickers -- i.e., nonresidents -- could be driving in the lot.

In sum, there was no error in the judge's conclusion that the public had access as “invitees or licensees” to the parking lot. See Hart, 26 Mass. App. Ct. at 238. We therefore need not decide whether the judge erred in concluding that the defendant had also operated on a public way before entering the condominium complex.⁴

Judgment affirmed.

FOOTNOTES

2.   After the defendant was found guilty of the primary offense, she stipulated to having been convicted of the same offense on two prior occasions.

3.   The stipulation referred to “a .24 Blood alcohol content.” We assume that the parties intended to stipulate to a figure of 0.24 percent.

4.   Contrary to the defendant's argument, the judge did not conclude, in denying the defendant's motions for a required finding of not guilty, that the Commonwealth had presented insufficient evidence that the parking lot was accessible to the public as invitees or licensees. Rather, the judge characterized the issue as “a close question,” one that she did not need to reach given her conclusion that there was in any event sufficient evidence of operation on a public way leading to the lot. Contrary to the defendant's claim on appeal, defense counsel did not “abandon[ ]” the parking lot issue in reliance on the judge's supposed conclusion of insufficient evidence. Rather, counsel fully argued the parking lot issue in her closing. So did the Commonwealth. Nothing barred the judge from concluding, as she did after these arguments, that the defendant was guilty based on her operation in the parking lot.