Opinion
16-P-1364
06-09-2017
COMMONWEALTH v. Scott MCCLUSKEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Scott McCluskey, appeals from his conviction of operating under the influence of intoxicating liquor, second offense, in violation of G. L. c. 90, § 24(1)(a )(1). He contends that the evidence presented at trial was insufficient to sustain his conviction. We affirm.
The defendant was also charged with leaving the scene of an accident after causing personal injury, in violation of G. L. c. 90, § 24(2) (a 1/2)(1), and leaving the scene of property damage, in violation of G. L. c. 90, § 24(2)(a ). The defendant pleaded guilty to leaving the scene of an accident after causing personal injury. He admitted to sufficient facts with regards to leaving the scene of property damage.
Background. We summarize the facts "in the light most favorable to the Commonwealth." Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506 (2011). On September 30, 2014, Tara Tegan went to a bar in Mansfield with friends. After an hour to an hour and a half, Tegan decided to leave the bar and walk home. The defendant, who was also at the bar, offered to drive Tegan home, and she agreed. While driving Tegan home, the defendant crashed into a guardrail. Daniel Newcomb was at home when he heard the crash. He looked outside his window and saw the defendant getting out of the car and trying to pull Tegan out of the car. Both Tegan and the defendant were bloodied. He heard the defendant repeating "I'm sorry. I'm so sorry." Both Newcomb and the defendant helped Tegan across the street, where she sat on Newcomb's front lawn. Newcomb observed that the defendant was nervous, was not speaking clearly, and that his speech was slurred and slow. Newcomb went in to his house to get some towels and when he came out, the defendant and Tegan were gone.
Officer Gonsalves arrived at the scene of the accident and noticed a cellular telephone on the floor of the car. After looking through the pictures on the cellphone, he recognized Tegan. He showed the picture to Newcomb who identified Tegan and the defendant as the two individuals in the car. The officer located Tegan and the defendant thirty to forty-five minutes later, less than half a mile from the accident. Tegan had a cut on her forehead, her head and face were covered in blood, and she was missing a patch of hair. The defendant also was bloodied. When the officer asked the defendant about the blood, the defendant responded that "he didn't know what [the officer] was talking about, that he was fine, everything was okay, he had no idea why [the officer] was talking to him." The officer observed that the defendant had a "really heavy odor of alcohol coming from his breath," that he was unsteady on his feet, and that his speech was slurred. The officer formed the opinion that the defendant was intoxicated. The defendant was subsequently placed under arrest.
While booking the defendant, Officer Kelly observed that the defendant appeared "disorderly," "like he'[d] been out in the weather for a while." The defendant had a cut and scratches on his face. Officer Kelly also formed the opinion that the defendant had been drinking.
Discussion. 1. Standard of review. "When reviewing the denial of a motion for a required finding of not guilty, we inquire ‘whether, after viewing all 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. Sepheus, 468 Mass. 160, 163 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "[W]e consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time." Commonwealth v. McDonald, 462 Mass. 236, 241-242 (2012), quoting from Commonwealth v. Semedo, 456 Mass. 1, 8 (2010).
2. Sufficiency. The defendant does not dispute that he operated the vehicle. Instead, he maintains that the evidence was insufficient to show that diminished capacity rather than roadway conditions, accounted for the accident. "The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352 (2015), quoting from Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).
To support a guilty verdict under G. L. c. 90, § 24(1)(a )(1), the Commonwealth must prove "(1) the defendant was in physical operation of the 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. Zeininger, 459 Mass. 775, 778 (2011).
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The Commonwealth presented sufficient evidence that the defendant was driving under the influence of intoxicating liquor, and that his capacity to drive the car safely was diminished. After leaving the bar with Tegan, the defendant crashed into a guardrail. While there was evidence of a wet roadway, Newcomb reported that the defendant was unsteady on his feet and slurring his speech, a report seconded by Officer Gonsalves. Officer Gonsalves also smelled alcohol on the defendant's breath. Even though the defendant was covered in blood, the defendant denied that anything was wrong or that he was covered in blood. Both officers who saw the defendant that night formed the opinion that the defendant was intoxicated. Taken in the light most favorable to the Commonwealth, the evidence was sufficient for the jury to have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. AdonSoto, 475 Mass. 497, 510 (2016) ; Lavendier, 79 Mass. App. Ct. at 506-507 ; Rarick, supra at 353.
Judgment affirmed.