Opinion
No. 11–P–265.
2013-03-21
COMMONWEALTH v. Susan PETERSON.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her conviction of operating a motor vehicle while under the influence of intoxicating liquor, fifth offense. We affirm.
The defendant was indicted on five charges. The court declared a mistrial on the offense of operating under the influence of liquor. A second trial resulted in a guilty verdict, and that conviction is the only conviction on appeal.
On appeal, the defendant argues that there was insufficient evidence to find beyond a reasonable doubt that she was operating a vehicle under the influence of alcohol and that the trial judge erred in denying her motion for a required finding of not guilty. We disagree. The standard of review for a denial of a motion for a required finding of not guilty is firmly established. See Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). To be found guilty of the crime of operating under the influence, the Commonwealth must show that the defendant (1) operated a vehicle, (2) on a public way, (3) while under the influence of intoxicating liquor. Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). G.L.
c. 90, § 24(1)( a )(1). The defendant need not be drunk; 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. Connolly, 394 Mass. 169, 173 (1985). In determining whether the evidence was sufficient to withstand a motion for a required finding, “we do not weigh the supporting evidence against conflicting evidence, nor do we consider the credibility of the witnesses.” Commonwealth v. Semedo, 456 Mass. 1, 8 (2010).
In the present case, the Commonwealth called four witnesses. Gregory Southall, the bartender (and coincidentally the victim) testified that he served the defendant two alcoholic drinks, that she did not eat, and that she appeared to be unsteady on her feet. In light of his observations, he asked the defendant's acquaintance, Jim Nicholson, to drive her home. At trial, Southall also testified that he witnessed the defendant enter her car, heard an impact, and then saw the defendant's car in a different parking spot. By the time Southall called the police, the defendant had already left the premises. Officer Murray testified that when he arrived at the scene he noticed green-paint transfer to the tire of Southall's car and scuffmarks on the defendant's front bumper, fender, and front quarter panel. Sergeant Westlund testified that he went to the defendant's residence in order to question her. When speaking to her soon after arrival, he smelled a strong alcoholic odor from about ten feet away; she was also very unsteady and her speech was slurred; he then believed the defendant was very intoxicated.
The defendant provided numerous arguments to refute the evidence presented by the Commonwealth, principally asserting that the only evidence of impairment came from Southall. In Commonwealth v. Atencio, 12 Mass.App.Ct. 747, 750–751 (1981), this court held that lay witnesses may testify to another's sobriety or lack thereof. Southall had been a bartender for fifteen years and had taken a certification course to recognize when people are inebriated. It is therefore reasonable to conclude that the jury afforded his testimony significant weight.
Furthermore, the defendant overlooks the fact that Southall's testimony was supported by Sergeant Westlund's testimony that the defendant appeared to be impaired when he questioned her about thirty minutes after she left the restaurant. See Commonwealth v. Orben, 53 Mass.App.Ct. 700, 705 (2002) (jury could reasonably conclude that the defendant did not become intoxicated during the twenty-minute period that passed between the time he parked his car and the time he was seen leaving the bank). The defendant blamed her medication for her behavior but admitted that her medication would not have made her smell of alcohol, a fact observed by Sergeant Westlund. The fact finder could permissibly discredit the defendant's alternative explanation. See Commonwealth v. Quinn, 61 Mass.App.Ct. 332, 334 (2004). The trial judge's denial of the defendant's motion for a required finding of not guilty was proper.
Judgment affirmed.