COMMONWEALTH v. DIGREGORIO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted, in a jury-waived trial, of operating a motor vehicle under the influence of an intoxicating liquor, in violation of G. L. c. 90, § 24 (1) (a) (1). Thereafter, he pleaded guilty to the third or subsequent portion of the offense. On appeal, he challenges the sufficiency of the evidence only with regard to whether the church parking lot -- where the police found him unresponsive, smelling of alcohol, and slumped over the steering wheel of his truck, with its lights on and its engine running -- is a “place to which members of the public have access as invitees or licensees” under § 24 (1) (a) (1).

We look at the evidence in the light most favorable to the Commonwealth to determine 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). A location is “a place to which the public has a right of access as invitees or licensees” under § 24 (1) (a) (1), if members of the public reasonably may conclude, based on the physical circumstances of the place, that it is open for travel. See Commonwealth v. Hart, 26 Mass. App. Ct. 235, 238 (1988) (no specific license or invitation needed if public may reasonably conclude place is open for travel). See also Commonwealth v. Stoddard, 74 Mass. App. Ct. 179, 181-183 (2009) (“If the invitation or license is one that extends [or appears, from the character of the way, to extend] to the general public, the [place] is covered; if instead the license or invitation is privately extended to a limited class, the [place] is not covered”); Commonwealth v. Kiss, 59 Mass. App. Ct. 247, 249-250 (2003) (public could reasonably conclude shopping center parking lot with ATM machine was open for travel at night).

The evidence in this case was that the parking lot had two entrances and exits. It had markings and was paved, well lit, off a public way, and across the street from the church. The parking lot was not blocked off by chains or other barriers and was regularly utilized by the public for purposes including overnight parking and daytime parking to attend parades and sports games at a nearby field. See Hart, supra at 237-238 (“intersecting streets, general use by the public, a broad category of business visitors, and only occasional closing off [if any] made [private road] at least as accessible to the public as [public road]”). The defendant contends that the parking lot was not a public place within the meaning of the statute because signs were posted indicating: “Property of Ascension Church; Church Parking Only Sunday 8 am - 12 pm; Community Parking for Scheduled Events.” Assuming arguendo that the signs were posted at the time the defendant was arrested, the signs are consistent with a finding that the parking lot was open to the general public other than on Sundays during church services. Thus, the defendant's motion for required finding was properly denied.

The defendant did not renew his motion at the close of all of the evidence, and thus our review of his sufficiency challenge is limited to determining whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Federico, 70 Mass. App. Ct. 711, 715 n.4 (2007). Here, the defendant's evidence did not cause the Commonwealth's case to deteriorate. To the contrary, the defendant's longtime friend, while testifying that the signs were posted at the lot on the evening of the defendant's arrest, also admitted that she used the lot without restriction when she went to visit friends nearby.²

The defendant also raises, for the first time on appeal, a so called “shelter” defense. Even if the defense were not waived, it previously has been rejected by this court. See Kiss, 59 Mass. App. Ct. at 250-251 (rejecting “shelter defense” because “a better policy is for a person who drinks alcohol to anticipate and ascertain his or her ability to operate a motor vehicle before attempting to do so”). We see no reason to revisit this holding now.

Judgment affirmed.

FOOTNOTES

2.   Nor did the Commonwealth's case deteriorate in light of the defendant's other witness -- an investigator, who was able to reserve parking directly from the church.