Opinion
14-P-873
10-06-2015
COMMONWEALTH v. RICHARD JAREK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On March 7, 2012, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor (OUI) as a third offense. After being convicted by a District Court jury of the underlying OUI offense, he waived his right to a jury trial on the issue of his prior convictions and proceeded before a judge. The trial judge found him guilty of OUI, third offense. The defendant now appeals, challenging the sufficiency of the evidence of his prior convictions. We affirm.
Discussion. The sole issue on appeal is whether the defendant is the same Richard Jarek convicted of OUI in the Lowell Division of the District Court Department on October 19, 1990 (1990 conviction). The defendant contends that the 1990 conviction fails to state his correct full name, Richard P. Jarek, Jr., and does not reflect his true date of birth, the very same issues he raised in his unsuccessful closing argument to the judge at the bench trial. These arguments are without merit.
The defendant did not dispute the prior conviction out of the Newburyport Division of the District Court Department that served as the second of the two predicate offenses.
To prove a prior OUI conviction, "the Commonwealth must produce evidence linking the person named in the conviction record to the defendant." Commonwealth v. Maloney, 447 Mass. 577, 588 (2006). This requirement is satisfied where the conviction record includes "more identifying information than merely the offender's name." Ibid. The question for us is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), there was sufficient evidence for a rational trier of fact to find that the defendant is the same "Richard Jarek" named in the 1990 conviction.
The defendant's argument that the Commonwealth did not produce sufficient evidence to link him to the 1990 conviction because that docket does not include his middle initial or the generational suffix "Jr." is unpersuasive under the circumstances here. According to the charging document and the court records, the name of the defendant in the instant case is "Richard Jarek," which is identical to the name of the defendant in the 1990 conviction.
Furthermore, there is substantial additional evidence linking him to the 1990 conviction. Our conclusion is guided by the Supreme Judicial Court's opinion in Commonwealth v. Bowden, 447 Mass. 593 (2006). Here, as in Bowden, a police officer identified the defendant in court as the person who was arrested. Specifically, the officer testified that the defendant was booked as "Richard Jarek" on the underlying OUI offense. In addition, the defendant's booking photograph was introduced in evidence. The Commonwealth also elicited testimony concerning the defendant's date of birth, current address, and license number, and introduced certified convictions from Lowell District Court and Newburyport District Court as well as certified copies of the defendant's registry of motor vehicles (RMV) "Current Image, License/Id and Demographic Information" and "driving history." As in Bowden, the "[c]ertified records of the RMV also assisted in establishing the defendant's identity. The records contained a . . . photograph of the defendant, his full name and date of birth, and his current and former addresses." Id. at 595. Significantly, as in Bowden, the RMV records contained references to "prior OUI offenses." Ibid.
The correlation between the 1990 conviction and the details in the defendant's RMV records adequately links the defendant to that prior offense. See Maloney, 447 Mass. at 590; Bowden, 447 Mass. at 602. The defendant's appearance in his booking photograph is similar to that on his license in the name of "Richard P. Jarek." The certified docket and complaint in the 1990 conviction reflect that the underlying offense took place in Dracut on April 28, 1990. The defendant's RMV driving history reflects a "CHEM TEST REFUSAL DRACUT" with an incident/notice date of "04/28/1990," and is followed by a series of entries for, inter alia, "DWI ALCOHOL PROGRAM DRACUT G," "ILLEGAL OPERATION DRACUT R," and "SPEEDING DRACUT R," all with an incident/notice date of "04/28/1990" and a finding date of "10/19/1990," the same date that the 1990 conviction docket reflects that Richard Jarek was found guilty of OUI, responsible for operating a motor vehicle with unnecessary noise, and responsible for speeding. The RMV driving history also lists "LOWELL DISTRI" in the column entitled "court" next to the "04/28/90 DWI" entry.
Case law suggests that a middle initial can serve as an additional identifying factor, but that its presence is neither necessary nor sufficient. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008).
In addition, it can be noted that the RMV has only two addresses for the defendant: his current Tyngsborough address from 2006 through 2012 and the Dracut address, listed on the 1990 conviction, from at least as early as 1987 through 1992. The Dracut address is also the address for "Richard P. Jarek, Jr." on the unchallenged Newburyport conviction, which lists the same date of birth for the defendant as the RMV records and the complaint in this case. See Bowden, 447 Mass. at 596 ("The addresses in the court records also correlated generally to the prior addresses of the defendant contained in RMV records").
The defendant's RMV driving history also includes the Newburyport conviction, thereby closing the evidentiary loop.
The defendant's arguments concerning the incorrect date of birth listed in the 1990 conviction fare no better. Viewed in the light most favorable to the Commonwealth, the evidence that the 1990 conviction was in the defendant's name and listed the address where the defendant lived at the time (as reflected both in his RMV records and the Newburyport conviction), and the fact that the 1990 conviction was included in the defendant's RMV records, could well allow a rational finder of fact to consider it a clerical error. The erroneous date of birth on the 1990 conviction docket does not undermine the sufficiency of the other evidence in the record linking the defendant to the 1990 conviction. Courts are not strangers to transcription and other clerical errors. See Bowden, 447 Mass. at 596 n.6 (discrepancies did not undermine sufficiency).
The 1990 conviction stated a date of birth of "8/17/57." The defendant's actual date of birth is May 17, 1967.
Judgment affirmed.
By the Court (Katzmann, Vuono & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 6, 2015.