Commonwealth v. Cabral.
Citation | 77 Mass.App.Ct. 909,931 N.E.2d 44 |
Decision Date | 05 August 2010 |
Docket Number | No. 09-P-1336.,09-P-1336. |
Parties | COMMONWEALTH v. Sheila CABRAL. |
Court | Appeals Court of Massachusetts |
OPINION TEXT STARTS HERE
Maurice A. Reidy, III, for the defendant.
Craig A. Souza, Assistant District Attorney, for the Commonwealth.
RESCRIPT.
After a jury-waived District Court trial, the defendant appeals from a conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI). See G.L. c. 90, § 24(1)(a)(1). We affirm.
Discussion. The defendant, who does not challenge being under the influence of intoxicating liquor, argues that the Commonwealth failed to present sufficient evidence that (1) the defendant “operate[d] a motor vehicle” (2) “upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.” See G.L. c. 90, § 24(1)( a)(1). We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the [judge, as finder of fact,] to infer the existence of the essential elements of the crime charged....” Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).
1. Operation of a motor vehicle. Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI. See Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006); Commonwealth v. Rand, 363 Mass. 554, 562, 296 N.E.2d 200 (1973). Here, Officer Robert George testified that after responding to an accident on Prairie Avenue, he observed a pick up truck 20 feet “off the end of the road onto a tree stump and a large rock.” He further testified that Prairie Avenue, which intersects with Acushnet Avenue, is a dead end street. The rear bumper of the vehicle was facing the road. Officer George observed the defendant “on her hands and knees outside of the open driver's door.” He then saw the defendant get behind the wheel of the truck, and the reverse lights came on as she attempted to back up but the wheels spun without touching the ground. This evidence was sufficient to prove that the defendant had operated the vehicle by driving on Prairie Avenue. Commonwealth v. Petersen, supra at 52, 851 N.E.2d 1102 ( ). See Commonwealth v. Woods, 414 Mass. 343, 354, 607 N.E.2d 1024, cert. denied, 510 U.S. 815, 114 S.Ct. 65, 126 L.Ed.2d 35 (1993); Commonwealth v. Cromwell, 56 Mass.App.Ct. 436, 438-439, 778 N.E.2d 936 (2002). Contrast Commonwealth v. Mullen, 3 Mass.App.Ct. 25, 26, 322 N.E.2d 195 (1975) ( ).
Commonwealth v. Petersen, supra at 52-53, 851 N.E.2d 1102, quoting from Commonwealth v. Best, 381 Mass. 472, 483, 411 N.E.2d 442 (1980). See Commonwealth v. Congdon, 68 Mass.App.Ct. 782, 784, 864 N.E.2d 1227 (2007); Commonwealth v. Flanagan, 76 Mass.App.Ct. 456, 464, 923 N.E.2d 101 (2010).
2. Public way. A “public way” is defined as “any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.” G.L. c. 90, § 24(1)( a)(1). It is the “objective appearance of the way that [determines] its status, rather than the subjective intent of the property owner.” Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249, 794 N.E.2d 1281 (2003). We look to see if the “physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel....” Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). In the absence of a certificate from the clerk of the city, which provides prima facie evidence of a public way, other evidence offered at trial can prove this factual issue. See id. at 237, 525 N.E.2d 1345 ( ); Commonwealth v. Muise, 28 Mass.App.Ct. 964, 965, 551 N.E.2d 1224 (1990) (); Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. 1025, 1026, 460 N.E.2d 615 (1984) (Brown, J. concurring); Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996) (). See generally Commonwealth v. Belliveau, 76 Mass.App.Ct. 830, 832-835, 927 N.E.2d 496 (2010). See also Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009).
Here, Officer George testified that he was a patrol officer employed by the city of New Bedford, and that he had been a police officer for thirteen years. He stated that Prairie Avenue was lined with single family homes, and was an “average city block.” He also testified that he believed there was...
To continue reading
Request your trial- Commonwealth v. Rodriguez .
-
Commonwealth v. Virgilio
...114 (2009); [79 Mass.App.Ct. 573] Commonwealth v. Belliveau, 76 Mass.App.Ct. 830, 832, 927 N.E.2d 496 (2010); Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 910, 931 N.E.2d 44 (2010). In assessing whether a particular private way falls within the statute, “[i]t is the status of the way, not t......
-
Commonwealth v. Robert S. Mcgillivary.
...in the driver's seat of the vehicle, put a key in the ignition and turned it to the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909, 931 N.E.2d 44 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), cit......
-
Commonwealth v. Pereira
...(c) not based on scientific, technical, or other specialized knowledge....” Mass. G. Evid. § 701 (2012). See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 910, 931 N.E.2d 44 (2010). Here, Officer Walsh could have rationally inferred, based on his observations of the scene, that a passerby on......