Commonwealth v. David D. Drake.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-401

COMMONWEALTH

vs.

DAVID D. DRAKE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of

operating a motor vehicle while under the influence of liquor

(OUI), pursuant to G. L. c. 90, § 24 (1) (a) (1), and negligent

operation of a motor vehicle, pursuant to G. L. c. 90,

§ 24 (2) (a). After a jury-waived trial, the defendant was

convicted of OUI, third offense. On appeal, he claims that

there was insufficient evidence to support his OUI conviction,

that the judge erred by not permitting the defendant to admit

third-party culprit evidence, and that he received ineffective

assistance of counsel. We affirm in part, reverse in part, and

remand to allow for a new trial if the Commonwealth wishes to

seek one.
1. Sufficiency of the evidence. The defendant claims that

there was insufficient evidence that he operated the motor

vehicle in question, requiring his conviction to be reversed.

We disagree.

When analyzing whether the record evidence is sufficient to

support a conviction, an appellate court is not required to "ask

itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt." Commonwealth v.

Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting

Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).

Nor are we obligated to "reread the record from a [defendant]'s

perspective." Palmariello v. Superintendent of M.C.I. Norfolk,

873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S. 865 (1989).

See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (2008).

Rather, the relevant "question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

When evaluating sufficiency, the evidence must be reviewed

with specific reference to the substantive elements of the

offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.

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at 677-678. To sustain the defendant's conviction of OUI in

violation of G. L. c. 90, § 24 (1) (a) (1), "the Commonwealth

was required to prove that the defendant (1) operated a motor

vehicle, (2) on a public way, (3) while under the influence of

alcohol." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392

(2017). The defendant challenges only the sufficiency of the

evidence as to the first element.

In the light most favorable to the Commonwealth, the jury

was entitled to find as follows. An Auburn police officer

responded to a single car accident, and saw that the front

corner of a car had collided with a guardrail. Present at the

scene were the apparently intoxicated defendant and another

person, who were sitting nearby off the roadway. Although the

defendant owned the car, the officer did not see who had

operated it, but he and the other officers at the scene

"gathered enough evidence" to opine that the defendant was the

"operator." In addition, a motor vehicle crash report (police

report) was admitted in evidence that listed the defendant as

the operator.

The defendant claims that the officer's opinion that the

defendant was the operator was "irrelevant." Even if we were to

agree, the testimony came in without objection. The police

report also stated that the defendant was the operator. As

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mentioned in his ineffective assistance claim, this police

report was offered in evidence by the defendant.

As a starting point, we note that unobjected-to testimony

is received in evidence for its full probative value. See

Commonwealth v. Adams, 421 Mass. 289, 291 (1995); Commonwealth

v. Stewart, 398 Mass. 535, 543 (1986). In that posture, the

jury were entitled to credit the officer's opinion and the

documentary evidence stating that the defendant was the

operator. Moreover, even if both pieces of evidence were

improperly admitted, it is of no moment in the sufficiency

equation. This is because sufficiency "is to be measured upon

that which was admitted in evidence without regard to the

propriety of the admission." Commonwealth v. Sepheus, 468 Mass.

160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass.

App. Ct. 87, 98 (2010). The evidence was sufficient for the

jury to find that the defendant was the operator.1

2. Third-party culprit evidence. The defendant also

claims that the judge should have allowed the defendant's motion

1 We are not persuaded by the defendant's reliance on
Commonwealth v. Mullen, 3 Mass. App. Ct. 25 (1975). Unlike in
Mullen, the presence of a second person here did not render the
inference that the defendant was the operator unreasonable. The
evidence of operation in the instant case is more substantial
than that presented in Mullen, as the police report here listing
the defendant as the operator was entered in evidence, and an
officer testified that the defendant was the operator.

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to admit third-party culprit evidence. The Commonwealth

concedes the issue, and we accept the concession.

The evidence the defendant sought to admit were statements

made in the video footage of the defendant's companion's booking

process (booking video) which the defendant claims showed that

his companion drove the car. However, the judge excluded it as

hearsay and found that its admission would "unnecessarily

confuse the jury, and that its probative value [was] outweighed

by the undue prejudice." However, hearsay may permissibly form

the basis of third-party culprit evidence as long as "the

evidence is otherwise relevant, will not tend to prejudice or

confuse the jury, and there are other 'substantial connecting

links' to the crime." Commonwealth v. Silva-Santiago, 453 Mass.

782, 801 (2009), quoting Commonwealth v. Rice, 441 Mass. 291,

305 (2004). To the extent the judge excluded the booking video

merely because it was hearsay, it was error. Also, given the

defense was that the defendant was not the operator, the

evidence was relevant, had substantial probative value, and was

not likely to confuse the jury.

3. Ineffective assistance of counsel. Finally, the

defendant claims he was denied the effective assistance of

counsel where counsel failed to object to the officer's opinion

testimony, and introduced the police report which stated that

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the defendant was the operator. Again, the Commonwealth

concedes error, and we accept the concession.

The opinion testimony was admitted without a proper

foundation at least as to how the officer's opinion was based on

his perception, given that he did not see the defendant driving

the car. See Mass. G. Evid. § 701(a) (2026). Moreover, it

included embedded hearsay statements of other officers.

Finally, the police report, even if properly admitted, was

offered by defense counsel to show that the defendant's

companion was the operator, but plainly states that the

defendant was the operator.

4. Conclusion. The judgments are vacated, the verdicts

are set aside, as is the finding that the defendant had

committed a third OUI offense, and the case is remanded to the

District Court to allow for a new trial if the Commonwealth

wishes to seek one.

So ordered.

By the Court (Meade,
D'Angelo & Tan, JJ.2),

Clerk

Entered: June 2, 2026.

2 The panelists are listed in order of seniority.

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