COMMONWEALTH v. CHIUCHIOLO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of operating a motor vehicle under the influence of alcohol following a jury trial. At the close of the Commonwealth's case and again at the close of all the evidence, the defendant moved for a required finding of not guilty. On appeal, she contends that the judge erred in denying her motions. We affirm.

“The test for sufficiency of the evidence is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Santana, 95 Mass. App. Ct. 265, 267 (2019), quoting Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 711-712 (2018), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).

“[T]he Commonwealth must prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of intoxicating liquor.” Commonwealth v. Jewett, 471 Mass. 624, 635 (2015), citing G. L. c. 90, § 24 (1) (a) (1). The defendant contests the third element only. “[T]he Commonwealth need not prove that the defendant was drunk, only that alcohol diminished her ability to operate a motor vehicle safely.” Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017), citing Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988).

In the light most favorable to the Commonwealth, the jury could have found the following facts. After attending a “pong” (“drinking game”) tournament, the defendant was driving on the Massachusetts Turnpike when her car ran out of gas. She was able to pull over part way into a breakdown lane, where a State police trooper discovered her at 2:30 a.m. The defendant admitted to having had three beers and she smelled of alcohol; had slurred, “thick-tongued” speech; and had glassy, bloodshot eyes. The defendant had a nearly empty liquor bottle in her car. She was unsteady on her feet and swaying as she walked. Further, the defendant performed poorly on field sobriety tests, despite having been instructed on the tests and having had those tests demonstrated for her. She could not recite the alphabet after three attempts. During the nine-step walk and turn test, she did not touch heel to toe, could not walk a straight line, and stumbled several times. During the one-legged stand test, she attempted several times to lift her leg up for the count of thirty but could not keep her foot up for more than three seconds.²

Considering this evidence together and in the light most favorable to the Commonwealth, a reasonable jury could have found beyond a reasonable doubt that the defendant operated a car while impaired by alcohol. See Santana, 95 Mass. App. Ct. at 267. See also Gallagher, 91 Mass. App. Ct. at 392-393 (sufficient evidence to affirm operating under influence conviction where intoxication evidence included “defendant exhibit[ing] classic symptoms of alcohol intoxication: her eyes were bloodshot and glassy; an odor of alcohol emanated from her person; her speech was slurred; she admitted to drinking three beers;” and where “she swayed and could not stand straight while being instructed on how to perform field sobriety tests; and she was unable to properly perform two out of three of the tests”); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (sufficient evidence to affirm operating under influence conviction where intoxication evidence included defendant's “slurred speech ․ strong odor of alcohol, poor balance, and glassy, bloodshot eyes”).

That the defendant presented an alternative trial theory does not change this outcome. See, e.g., Gallagher, 91 Mass. App. Ct. at 393, quoting Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010) (sufficient evidence to affirm operating under influence conviction despite defendant's claim that poor performance on field sobriety tests was caused by arthritis rather than alcohol intoxication; “to indulge this argument, we would have to view the evidence in the light least favorable to the Commonwealth, which, of course, we cannot do”).

Judgment affirmed.

FOOTNOTES

2.   The defendant testified in her own defense and explained that she ran out of gas because there was a mechanical issue with her car that resulted in her getting false information regarding the amount of gas remaining in her tank. She said that she had been drinking beer while participating in a pong tournament at a bar, but that the bar rules prohibited alcohol from being involved in the game. The bottle of alcohol in her car belonged to her two passengers. She performed poorly on the alphabet test because she was flustered and on the tests that require physical action because she was suffering from neuropathy stemming from her diabetes.