Commonwealth v. Robert S. Mcgillivary.

• Decision Date: 25 January 2011
• Docket Number: 09–P–507.
• Citation: 940 N.E.2d 506,78 Mass.App.Ct. 644
• Parties: COMMONWEALTHv.Robert S. McGILLIVARY.
• Court: Appeals Court of Massachusetts

78 Mass.App.Ct. 644

940 N.E.2d 506

COMMONWEALTH

v.Robert S. McGILLIVARY.

09–P–507.

Appeals Court of Massachusetts, Essex.

Argued Sept. 13, 2010.Decided Jan. 25, 2011.

James P. McKenna for the defendant.Ronald DeRosa, Assistant District Attorney, for the Commonwealth.Present: McHUGH, KATZMANN, & VUONO, JJ.KATZMANN, J.

The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)( a )(1).¹ His principal issue focuses on the meaning of “operation” under that statute. We affirm.

1. Operation of the motor vehicle. A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011, 505 N.E.2d 218 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged.² The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. c. 90, § 24, is one of first impression in Massachusetts.³

To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24, 160 N.E. 305 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” ⁴ See Commonwealth v. Merry, 453 Mass. 653, 661, 904 N.E.2d 413 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in the ignition to the “on” setting could be found to be part of a sequence that would set the vehicle's engine in motion and that would, thus, constitute operation.⁵

Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to “protect[ ] the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184, 508 N.E.2d 603 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320–321, 640 N.E.2d 481 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn. 546, 554–555, 903 A.2d 217 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153–154, 637 N.E.2d 897 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated ...”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and decide to drive while still under the influence.” State v. Kelton, 168 Vt. 629, 630, 724 A.2d 452 (1998).⁶

In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the driver's seat, turned the ignition key—an act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehicle—was sufficient to permit the jury to conclude that he “operated” the motor vehicle. See State v. Haight, 279 Conn. at 551–555, 903 A.2d 217 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted).^,78

We are unpersuaded by the defendant's interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, 508 N.E.2d 603, as requiring that an engine be engaged and as meaning that turning the key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine,⁹ the defendant misconstrues Ginnetti. In Ginnetti, supra at 183–184, 508 N.E.2d 603, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at 184, 508 N.E.2d 603. Applying the Uski definition to the facts before it, the court concluded that “the defendant ... operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.” Id. at 183–184, 508 N.E.2d 603. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled.

Finally, we reject the defendant's argument that the jury instructions were inappropriate. The judge's instructions to the jury,¹⁰ to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant's claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver's seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234, 548 N.E.2d 1278 (1990).¹¹

B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor ¹² or the fact that the vehicle was on a public way,¹³ argues on appeal that the Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)( a ) (1). More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. 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 jury to infer the existence of the essential elements of the crime charged” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979) (citation omitted).

The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver's seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant's feet were “right in front of him.” The vehicle's dashboard was illuminated. The key was in the ignition and had been turned to the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to remove the key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting 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”), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562, 296 N.E.2d 200 (1973).

The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle's keys. The defendant testified that, after he moved to the driver's seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass. 317, 323–324, 718 N.E.2d 855 (1999). Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. ¹⁴ Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver's seat, picked up the key and put it in the ignition when he moved to the driver's seat.

2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. The prosecutor's argument disputing the defendant's characterization that he was the victim of a conspiracy by the police officers was an appropriate response to defense counsel's argument that implied such a...