COMMONWEALTH v. NOV (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Rabica Nov, was convicted by a District Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI). See G. L. c. 90, § 24 (1) (a) (1). On appeal, Nov claims that the evidence was insufficient to support the conviction. We affirm.

Background. The jury could have reasonably found the following facts. At approximately 2 a.m. on December 4, 2017, Sergeant Ronald Goyette of the Attleboro Police Department stopped at a gasoline station in Attleboro. As he was preparing to leave, he noticed a vehicle parked in a peculiar manner that almost partially obstructed one of the station's exits. Sergeant Goyette proceeded towards the vehicle and saw the lone occupant, later identified as Nov, unconscious and slumped over in the driver's seat. The vehicle was running. After Sergeant Goyette unsuccessfully attempted to wake Nov by banging on the side of the vehicle, he reached through the open window and shook Nov awake. Nov appeared disoriented and was unable produce a driver's license or registration. Sergeant Goyette noticed that Nov's eyes were glassy, and he smelled a strong odor of alcohol. Nov indicated that he had two beers earlier in the night. In response to Sergeant Goyette's request, he struggled to recite the alphabet.

A short time later, Officer Katelyn Hart arrived on the scene, and noticed the vehicle parked in such a way that it partially obstructed one of the exits. She likewise could smell alcohol, and noticed that Nov's eyes were bloodshot and glassy. Nov told Officer Hart that he was on his way home from a friend's house when he decided to stop at the gasoline station to get something to drink. He believed that he simply fell asleep. Nov stated to Officer Hart “please don't do this to me” and “it's not like I was actually driving.” After Officer Hart obtained Nov's license, she administered some field sobriety tests. Nov attempted both the one leg stand test and the nine step heel-to-toe test. Seeing that Nov had not adequately performed either test, Officer Hart placed Nov under arrest for OUI. During the booking procedure, Officer Hart noticed that he was unsteady on his feet, appeared lethargic, and had a thick, slow form of speech.

Nov was charged with (1) operating a motor vehicle while under the influence of intoxicating liquor, second offense, in violation of G. L. c. 90, § 24 (1) (a) (1); and (2) negligent operation of a motor vehicle in violation of G. L. c. 90, § 24 (2) (a). A jury trial was held on October 18, 2018. At the close of the Commonwealth's case, Nov moved for a required finding of not guilty as to both charges. The judge allowed Nov's motion with respect to the negligent operation count. The jury convicted Nov of OUI, and, after waiving his right to a jury trial on the second offense portion of the charge, the judge found him guilty. This appeal followed.

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” (emphasis original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). “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).

A conviction for OUI requires proof beyond a reasonable doubt 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) ․ was impaired by the influence of intoxicating liquor.’ ” Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016), quoting Commonwealth v. Zeininger, 459 Mass. 775, 778, cert. denied, 565 U.S. 967 (2011). Nov only challenges the third element, claiming that the evidence was insufficient to prove that alcohol diminished his ability to safely operate a motor vehicle.

The Commonwealth's burden is to show that the defendant's ability to drive safely was diminished due to intoxication. Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Viewing the evidence in the light most favorable to the Commonwealth and considering the inferences that permissibly can be drawn from it, see Latimore, 378 Mass. at 676-677, there was sufficient evidence presented at trial to meet this burden.

Nov was found unconscious in the driver's seat of a running vehicle parked in a manner that appeared to partially obstruct an exit to a gasoline station at 2 a.m. He did not wake to the sound of Sergeant Goyette banging on the side of his vehicle. Once he was roused, his eyes were glassy. He mixed up letters when reciting the alphabet. He smelled of alcohol, and he had a thick, slurred form of speech. He said “please don't do this to me” and stated that he was not driving. He did not satisfactorily perform the field sobriety tests. He appeared unsteady throughout his interactions with the police, including during his booking. This evidence was sufficient for a rational trier of fact to conclude that Nov had a diminished capacity to operate a motor vehicle safely. See Commonwealth v. Jewett, 471 Mass. 624, 636 (2015); Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017).

Finally, we note that Nov's reliance on Commonwealth v. Gibson, 82 Mass. App. Ct. 834 (2012) is misplaced. In Gibson, this court found that the evidence was sufficient to support the defendant's OUI conviction, id. at 838 n.4, but we reversed because the judge's instruction that a person may refuse to take a breathalyzer test created a substantial risk of a miscarriage of justice. Id. at 836-838.

Judgment affirmed.