Opinion
21-P-41
02-03-2022
COMMONWEALTH v. Nicole BYERS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. See G. L. c. 90, § 24 (1) (a ) (1). On appeal, the defendant challenges the sufficiency of the evidence that alcohol diminished her ability to operate a motor vehicle safely. We affirm.
The defendant was also found responsible for a marked lanes violation, which was placed on file, and not responsible for possession of an open container of alcohol in a motor vehicle.
Discussion. We review the sufficiency of the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), "consider[ing] the evidence introduced at trial in the light most favorable to the Commonwealth, [to] determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). On appeal, the defendant claims only that the evidence was insufficient to establish the "under the influence" element of the crime. See Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016) (setting forth elements). "To establish that the defendant was under the influence, the Commonwealth must prove a diminished capacity to operate safely." Id. at 510. "The inferences that support a conviction need only be reasonable and possible; [they] need not be necessary or inescapable" (quotations omitted). Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).
In the light most favorable to the Commonwealth, the evidence showed that, when a Massachusetts State trooper first observed the defendant's vehicle at approximately 1:15 A.M. , it was "swerving on the roadway." The vehicle crossed over from the right travel lane into the breakdown lane, and then over into the left travel lane three or four times. The trooper activated his emergency lights and the defendant pulled over. When the trooper approached the driver's side window, he "noticed a strong odor of an alcoholic beverage coming from the inside of the vehicle" and saw that the defendant's eyes were "red and glassy." The defendant told the trooper that she had one "fruity drink" that evening. She was "unsteady on her feet" when she exited the vehicle, and leaned against the hood of the vehicle while the officer prepared to administer field sobriety tests. Based on her performance of those tests -- failing to "touch heel to toe throughout" the "nine-step walk and turn" test or to maintain her balance during the "one-legged stand" test -- and the trooper's previous observations, the trooper formed the opinion that the defendant was intoxicated. See, e.g., Commonwealth v. Jewett, 471 Mass. 624, 636 (2015) (listing classic symptoms of alcohol impairment). In short, "the defendant exhibited classic symptoms of alcohol intoxication." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).
The defendant argues that the evidence was nonetheless insufficient because it could support inferences that are "equally consistent with [an] innocent explanation." See Commonwealth v. Croft, 345 Mass. 143, 145 (1962), quoting Commonwealth v. O'Brien, 305 Mass. 393, 400 (1940) ("When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof"). For example, the defendant suggests that her vehicle was swerving because it was a particularly windy night and an incomplete repair had left her vehicle unstable. She contends that her red and glassy eyes were a symptom of exhaustion, and her inability to successfully complete the field sobriety tests was attributable to environmental factors. However, "[t]his principle [regarding inconsistent propositions] applies only in circumstances in which, even viewing the evidence in the light most favorable to the Commonwealth, ‘choosing among the possible inferences from the evidence presented,’ would require [the fact finder] ‘to employ conjecture.’ " Commonwealth v. Tavares, 484 Mass. 650, 655 (2020), quoting Croft, supra at 145. Here, the evidence was not in equipoise. No conjecture was required for the judge to conclude, from the evidence, that the defendant was under the influence of alcohol and that her ability to operate her vehicle safely was accordingly impaired.
The defendant testified that her vehicle was missing a "sway bar," making it less stable on the highway.
The defendant also argues that the absence of certain indicators of intoxication, such as slurred speech, render the Commonwealth's evidence insufficient to support a conviction. It was for the fact finder to assign weight to the affirmative evidence of intoxication and diminished capacity. See Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 351 (2015) (evidence of impairment sufficient even where defendant was cooperative and "not swaying or staggering").
Judgment affirmed.