COMMONWEALTH v. SCARMEAS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant, Soterios G. Scarmeas, was convicted of operating a motor vehicle while under the influence of alcohol. See G. L. c. 90, § 24 (1) (a) (1). On appeal, he claims that the Commonwealth's evidence was insufficient to support his conviction. We affirm.

Sufficiency. “[I]n a prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely. The Commonwealth ․ must prove a diminished capacity to operate safely.” Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). The Commonwealth may meet its burden by providing evidence of the “classic indicia of impairment,” such as testimony “that the defendant was unsteady on his feet, had bloodshot and glassy eyes, smelled of alcohol, [or] slurred his words.” Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). We review the sufficiency of the evidence under the familiar Latimore standard. Id. at 635. See Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979).

Officer Brian Gervais first saw the defendant's car parked on the side of the road at approximately 1:10 a.m. The car's hazard lights were flashing. As the officer approached in his cruiser, the car made its way on the road; the hazard lights were still flashing. The driver had “[d]ifficulty maintaining lane control.” The car slowly swerved back and forth between the yellow line and the white fog line, and made an overly wide “trailer” turn into the oncoming lane. The defendant drove in the oncoming lane for approximately one hundred feet. When the officer stopped the defendant's car, the defendant's speech was “slow, deliberate, mumbling, slurring.” His face was red, and his eyes were glassy and bloodshot. “As soon as” the defendant got out of the car, the officer detected a “moderate odor” of alcohol. When Gervais performed a patfrisk and handcuffed the defendant, the defendant had trouble keeping his balance. After the defendant was arrested and placed in the police cruiser, he fell asleep. At booking, Lieutenant Edward Smith smelled a “strong odor of an intoxicating beverage.” Officer Gervais also offered his opinion that defendant was “drunk.”²

The defendant contends that Officer Gervais's testimony failed to establish that the defendant had been drinking alcohol. Although there was no direct evidence of consumption of alcohol, Gervais's observation that he smelled alcohol “as soon as” the defendant got out of the car, combined with the other evidence of impaired ability to function, suffices to permit the inference that the defendant had been drinking. See Jewett, 471 Mass. at 636. The defendant also attempts to undermine the officer's testimony, stating that “[t]he conditions for his observations were poor: It was raining. The street was not well lit,” and that the defendant's reddened eyes and overall demeanor were attributable to recent, upsetting events in his personal life. While alternative explanations for the defendant's demeanor are possible, “[c]onflicting inferences that can be drawn from the evidence are for the jury to resolve.” Commonwealth v. St. Louis, 473 Mass. 350, 364 (2015). “The defendant's contention reduces to a claim about the weight of the evidence.” Rarick, 87 Mass. App. Ct. at 353. The evidence was sufficient. See Jewett, supra, citing Commonwealth v. Bryer, 398 Mass. 9, 10-11 (1986) (“unsteadiness and odor of alcohol are factors that support inference of diminished capacity”); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (“poor balance, and glassy, bloodshot eyes” are signs of intoxication).

Judgment affirmed.

FOOTNOTES

2.   “Proof of drunkenness is not required.” Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).