Com. v. Muise, 89-P-474

• Decision Date: 28 March 1990
• Docket Number: No. 89-P-474,89-P-474
• Citation: 551 N.E.2d 1224,28 Mass.App.Ct. 964
• Parties: COMMONWEALTH v. Eric A. MUISE.
• Court: Appeals Court of Massachusetts

Page 1224

551 N.E.2d 1224

28 Mass.App.Ct. 964

COMMONWEALTH v. Eric A. MUISE.

No. 89-P-474.

Appeals Court of Massachusetts Essex.

Argued Nov. 16, 1989.

Decided March 28, 1990.

Terrence W. Kennedy, Everett (James D. Barretto, Cambridge, with him), for defendant.

Elin H. Graydon, Asst. Dist. Atty., for Commonwealth.

Before BROWN, KAPLAN and PERRETTA, JJ.

RESCRIPT.

On April 10, 1988, about 7:30 P.M. a State police trooper, in response to a telephone call, went to a certain unnamed private way off Route 1 in Peabody. Upon arrival, the trooper observed an individual, later determined to be the defendant, seated on a motorcycle, stopped on a paved way leading from Route 1 (a public way) to a mobile home (trailer) park. The defendant's feet were on the pavement, and he was wearing a helmet but no protective eye gear. The trooper drove up to the defendant and requested his license and registration. The defendant turned off the motorcycle, dismounted and began looking for those items. As the defendant got off the motorcycle the trooper observed that he was unsteady on his feet. While inquiring as to the defendant's current address, the trooper smelled a strong odor of alcohol emanating from the defendant. The trooper also observed that the defendant's eyes were glassy and red. The defendant was asked whether he would be willing to take a field sobriety test. He assented and the trooper proceeded to administer the alphabet test, which the defendant failed. The defendant also was asked to perform the one-leg stand test; this too he failed. Based on those tests the trooper determined that the defendant was under the influence of alcohol. The defendant then was placed under arrest. Upon arrival at the State police barracks the defendant was taken to the booking room, at which time the trooper gave him his Miranda rights. The defendant was booked and placed in a cell, where he caused some disruption.

Upon his conviction of operating a motor vehicle while under the influence of intoxicating liquor, the defendant principally argues on appeal that because there was insufficient evidence, as matter of law, that his operation of the motorcycle occurred on "any way or in any place to which members of the public have access as invitees or licensees" (G.L. c. 90, § 24[a] ), as appearing in St.1982, c. 373, § 2, it was error for the judge to deny his motion under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), for a required finding of not guilty. The defendant correctly asserts that the reasoning of Commonwealth v. Hart, 26 Mass.App.Ct. 235, 525 N.E.2d 1345 (1988), controls this question in all material respects.

In reviewing the denial of the defendant's motion we must "appraise the evidence in a light most favorable to the government, without weighing contrary evidence presented by the defense.... So measured, we ask whether the evidence was sufficient to warrant a rational trier of fact in concluding beyond a reasonable doubt" (26 Mass.App.Ct. at 236, 525 N.E.2d 1345) that the road on which the defendant was operating his motorcycle on the evening of April 10, 1988, is a "place to which members of the public have access as invitees or licensees." The record evidence is sufficient to sustain the denial of the defendant's motion for a required finding of not guilty.

"It is the status of the way, not the status of the driver, which the statute defines." Id. at 237-238, 525 N.E.2d 1345. The cases collected in Commonwealth v. Hart suggest that the usual "indicia of accessibility to the public" are paved roads, the absence of signs prohibiting the public access, street lights, curbing, abutting houses or businesses, crossroads, traffic, signs, signals, lighting, and hydrants. Id. at 238, 525 N.E.2d 1345.

The arresting officer testified that the way here was paved with asphalt (with no curbing), is approximately 200 feet in length, and leads from Route 1 (a public highway) into a trailer park. ¹ Trailers that are used as year-round residences abut on each side of the way. There were no signs prohibiting the public from access to the road. We think this evidence provided a sufficient basis for the...