Opinion
19-P-959
07-10-2020
COMMONWEALTH v. SILAS L. SILVA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant, Silas L. Silva, of operating under the influence of intoxicating liquor. G. L. c. 90, § 24 (1) (a) (1). He challenges the sufficiency of the evidence in support of his conviction. We affirm.
Discussion. In reviewing whether evidence is sufficient to support a conviction, the "question 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. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). To support a conviction of operating under the influence, the Commonwealth "must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely." Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Importantly, however, "[t]he 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." Id.
Police observed the defendant driving very slowly on a flat tire. Police stopped the vehicle. As soon as the officer approached it, he noticed an odor of alcohol coming from within. There was no evidence of anyone else in the vehicle with the defendant. The officer also observed that the defendant's eyes appeared both glassy and bloodshot. The defendant explained that he had only two beers. Police then asked the defendant to perform two field sobriety tests -- a one-legged stand and a nine-step walk and turn. The defendant was unable to maintain his balance during the one-legged stand. He raised his arms, hopped on one foot, and was only able to maintain the position for approximately four seconds. The defendant also failed to complete the nine-step walk and turn correctly -- taking only eight steps, stepping off the line, raising his arms for balance, and turning improperly. While the defendant offered explanations for his poor performance, we view the entirety of the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012).
The defendant attributes his performance to his "bad knees" and defects in the way the tests were conducted -- such as the use of a "small crack" in the pavement rather than a straight line.
The defendant displayed classic signs of impairment -- glassy, blood shot eyes. The jury could also properly infer that the odor of alcohol was strong -- given that the officer detected it immediately upon his approach to the car. Likewise, the jury could infer that the defendant's failure to successfully complete the field sobriety tests was due to intoxication rather than his bad knees or other defects. See Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 134 (2018) (jury may draw reasonable inferences based on evidence). The combination of these physical signs of impairment, the defendant's decision to drive his car on a flat tire, the defendant's admission to the consumption of alcohol, and his failure to successfully complete the field sobriety tests are sufficient to support the rational trier of fact's conclusion that the defendant's ability to operate safely was impaired. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390-391 (2017) (finding evidence of intoxication "compelling, if not overwhelming" where defendant parked across two spaces, had glassy, bloodshot eyes, had odor of alcohol, had slightly slurred speech, and admitted to consuming three beers just prior to driving); Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354 (2015) ("evidence that the defendant had consumed at least six beers in the hours before he was stopped, that a moderate odor of an alcoholic beverage was coming from his person, that his eyes were red and glassy, and that he was speeding while driving on a road where the posted speed limit was clearly marked was sufficient to permit a rational fact finder to infer that he was operating while under the influence of intoxicating liquor"); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (noting obvious signs of impairment where defendant had, among other indicators, "strong odor of alcohol, poor balance, and glassy, bloodshot eyes"). Accordingly, we perceive no error.
The jury was not required to accept the defendant's alternate explanation for his performance on these tests. See Commonwealth v. McGrath, 60 Mass. App. Ct. 685, 691 (2004).
Judgment affirmed.
By the Court (Maldonado, Singh & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 10, 2020.