COMMONWEALTH v. DEPINADOSSANTOS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a bench trial, the defendant, Mario Depinadossantos, was convicted of operating a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24 (1) (a)(1). He appeals, arguing that the judge erred when he denied the defendant's motion for a required finding of not guilty because, he contends, the Commonwealth failed to prove that his ability to operate his vehicle safely was impaired by intoxicating liquor. We disagree and affirm the conviction.

Background. At approximately 1:05 a.m. on March 15, 2017, Massachusetts State Police Trooper Joshua Pacheco was traveling in a marked cruiser on a two lane road in a “fairly well built up area” when he observed the defendant operating a GMC Safari van with “no illuminated taillights.” Pacheco drove behind the defendant and then activated the cruiser's emergency lights, signaling the driver of the van to pull over. The defendant continued driving until he stopped at a red light at an intersection. Pacheco started to get out of his cruiser, but, when the light turned green, the defendant continued through the intersection. Pacheco then activated the cruiser's siren, still trying to get the defendant's attention. When that failed, Pacheco used an LED spotlight mounted on his cruiser, flashing the light into the defendant's side mirror. Pacheco then took what he described as the “last possible option” and, using the cruiser's public address speaker, began giving the defendant verbal commands to pull over. Nonetheless, the defendant continued driving until he parked the van at his house about one-half mile from the traffic light.

Once the defendant stopped, Pacheco told the defendant three times to get out of the van. When the defendant finally did so, he began to tell Pacheco that he didn't speak English. As Pacheco approached, he immediately smelled a strong odor of an alcoholic beverage coming from the defendant. The defendant's eyes were barely open and the parts of his eyes the trooper could see were bloodshot and glassy. The defendant was “very unsteady on his feet ․ He actually had to lean against the van with one hand in order to maintain his balance” as Pacheco spoke with him. The defendant responded in very slurred Portuguese.² Pacheco understood that the defendant had been travelling home from watching a soccer game. At trial, the defendant's brother, who was also in the defendant's van, testified that the two had been at Café Rio, a bar in Fall River.

Based on his observations, Pacheco placed the defendant under arrest. Further, as Pacheco removed the defendant from the cruiser at the police station, he smelled the same strong odor of an alcoholic beverage. When Pacheco was asked whether he had formed an opinion as to the defendant's sobriety, he responded that he did and his opinion was “[t]hat he was drunk.” The Fall River District Court issued a criminal complaint the same day, charging the defendant with operating his vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 21 (1) (a) (1).³

Prior to trial, on April 12, 2018, the defendant filed a “[m]otion for [r]equired [f]inding of [n]ot [g]uilty at the [c]lose of the Commonwealth's [c]ase” on the grounds that the Commonwealth failed to produce sufficient evidence that a jury could find the defendant guilty beyond a reasonable doubt. On July 10, 2018, the defendant waived his right to a jury.⁴ The judge found the defendant guilty of operating under the influence of alcohol. The judge found the evidence sufficient to prove the defendant was driving while impaired; the judge explained:

“I find that the defendant's failure to stop for the trooper, despite the activated blue lights, despite the siren, and despite the LED lights being shone into the van, to be evidence, beyond a reasonable doubt, that the defendant was driving while impaired, along with the evidence of the strong odor of alcohol, bloodshot eyes, glassy eyes, slurred speech, unsteady on his feet, and having to lean on the van for balance.”

The defendant appeals his conviction arguing that, even in the light most favorable to the Commonwealth, the evidence is insufficient to establish that the defendant was driving while impaired.

Discussion. When reviewing the denial of a motion for a required finding of not guilty we must determine “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. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).⁵ “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

The charge of operating a motor vehicle while intoxicated requires the Commonwealth to “prove that the defendant (1) physically operated a vehicle; (2) ‘on a public way or place to which the public has a right of access; and (3) had a blood alcohol content percentage of .08 or greater or was impaired by the influence of intoxicating liquor.’ ” Commonwealth v. AdonSoto, 475 Mass. 497, 509-510 (2016), quoting Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011). “To establish that the defendant was under the influence, the Commonwealth ‘must prove a diminished capacity to operate safely.’ ” Adonsoto, supra at 510, 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).

In the light most favorable to the Commonwealth, the defendant here clearly exhibited classic symptoms of alcohol intoxication: he was traveling from a bar late in the evening; he refused to comply with Pacheco's demands to stop, continuing on for more than one-half mile; his eyes were bloodshot and glassy; his speech was slurred; he was unsteady on his feet and used his van for balance; and an odor of alcohol emanated from his vehicle and person. See Jewett, 471 Mass. at 636.

The defendant emphasizes that the evidence “provides every indication that the defendant was operating the motor vehicle properly, and little or no evidence of impaired operation.” We disagree. First, on the facts before him, the judge reasonably could infer that the defendant's driving was impaired because either he was paying no attention to his surroundings, including sound and lights, or he was oblivious to them. As the judge noted, the defendant “finally pulled over, not because of the light, not because of the siren, not because of the LED lights, but because he was in front of the apartment where his brother lived.” That manner of operation clearly poses a safety threat. Further, a conviction for this offense “does not require the Commonwealth to ‘prove the defendant actually drove unskillfully or carelessly.’ ” Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354 (2015), quoting Connolly, 394 Mass. at 169.

We are satisfied that evidence was sufficient to permit a rational fact finder to infer that the defendant was operating a motor vehicle while under the influence of intoxicating liquor. See Rarick, 87 Mass. App. Ct. at 354.

Judgment affirmed.

FOOTNOTES

2.   The defendant's brother, Angelo Tavares, was with the defendant and he informed Pacheco that the defendant did not speak English. Pacheco testified that, because he grew up in a Portuguese-speaking family, he understood and could speak some Portuguese: “I have a very rudimentary basic knowledge. I can't hold a full conversation with somebody, but I have a pretty decent vocabulary to where I can utilize context clues within a sentence and -- and gather the gist of [what] someone's trying to tell me.”

3.   The complaint also charged the defendant with a “[b]rakes [v]iolation,” citing G. L. c. 90, § 7, for the brake, or taillight, civil motor vehicle infraction.

4.   The defendant did not renew his motion for a required finding of not guilty when the Commonwealth rested its case or at the close of all of the evidence.

5.   Although the defendant filed his motion for a required finding of not guilty before the trial and did not renew the motion thereafter, even if the argument was waived, we are obliged to consider it. See Commonwealth v. Garrett, 473 Mass. 257, 259 (2015), quoting Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986) (“Although the defendant's sufficiency of the evidence claim was not preserved, we nonetheless consider it because ‘findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice’ ”).