Commonwealth v. David Navarro.

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

22-P-828

COMMONWEALTH

vs.

DAVID NAVARRO.

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

intoxicating liquor (OUI) and operating a motor vehicle after a

suspension of license. On appeal, he claims there was

insufficient evidence to support his convictions and that the

prosecutor's closing argument created a substantial risk of a

miscarriage of justice. We affirm the judgment of conviction of

OUI and remand the case for the entry of a judgment of not

guilty on the charge of operating a motor vehicle after

suspension.

1. Sufficient evidence of OUI. The defendant claims that

there was insufficient evidence to support his conviction for

OUI where the Commonwealth failed to prove that he operated the

motor vehicle in question. 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.' . . . 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)." Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19

(2009).

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.

at 677-678. In the circumstances of this case, to establish the

defendant's guilt 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. Hallinan,

491 Mass. 730, 733 (2023). Here, as noted above, the defendant

challenges only the first element.

In the light most favorable to the Commonwealth, the

evidence demonstrated that on June 16, 2019, at around 12:50

A.M., the Wrentham police responded to a telephone call, which

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had reported that a possibly impaired driver was at a local gas

station. When the officer arrived at the gas station, he saw

the defendant leave the gas station building and stumble toward

a car with a flat front tire that was parked at the gas pump.

The car had a registration number that matched what had been

reported by the tipster. As he stood next to the car, the

defendant was swaying, and he dropped one hundred dollars' worth

of ten- and twenty-dollar bills on the ground. When asked, the

defendant told the police officer that the car was not his, that

his friend had dropped him off, and he was waiting for his

friend to return. The officer could not locate the friend in

the store, and there was no one other than the defendant at the

scene who may have been in the vehicle.

The car was registered to the defendant's father, and the

car's keys were in the defendant's pocket. Based on the

defendant's conduct and appearance, the officer believed he was

intoxicated. The defendant was arrested for OUI, brought to the

police station, and booked. At trial, the Commonwealth entered

in evidence the registry of motor vehicles notice of suspension

addressed to the defendant at 525 Hunt Street, Central Falls,

Rhode Island. The notice was sent to the defendant on June 21,

2019.

From the evidence that the car was registered to the

defendant's father, the defendant's possession of the keys, the

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absence of anyone else in the area who could have been in the

vehicle, and the defendant's implausible explanation for how he

got to the gas station, the jury were entitled to draw the

reasonable inference that he operated the car. See Commonwealth

v. Petersen, 67 Mass. App. Ct. 49, 52 (2006) ("Proof of

operation of a motor vehicle may rest entirely on circumstantial

evidence" [quotation and citation omitted]). While one could

infer, albeit implausibly, that the defendant was not the

operator, it is of no assistance to the defendant. "To the

extent that conflicting inferences are possible from the

evidence, 'it is for the jury to determine where the truth

lies.'" Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981),

quoting Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978). See

Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976) ("Whether

an inference is warranted or is impermissibly remote must be

determined, not by hard and fast rules of law, but by experience

and common sense").

Finally, the defendant claims that because the

circumstantial evidence "tends equally to sustain either of two

inconsistent propositions . . ., neither of them can be said to

have been established by legitimate proof . . . [and] [a]

verdict in favor of the party bound to maintain one of those

propositions against the other is necessarily wrong" (citation

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omitted). Commonwealth v. Shea, 324 Mass. 710, 713 (1949). We

disagree.

The "equal and inconsistent" concept does not apply to the

circumstances of this case. The concept applies, if at all, "to

situations in which any view of the Commonwealth's evidence,

however favorable, still requires a leap of conjecture with

respect to essential elements of the crime charged in order to

obtain a conviction." Commonwealth v. Latney, 44 Mass. App. Ct.

423, 426 (1998).

Here, the jury's conclusion that the defendant was the

operator did not require a leap of conjecture given the

reasonable inferences enumerated above. The defendant's theory

of innocence, supported by the fact that the car was off, not

registered to him, and his assertion that his never-appearing

friend was the operator, is simply not in equipoise with the

Commonwealth's evidence. See Commonwealth v. Hernandez, 77

Mass. App. Ct. 259, 265 (2010). Rather, the defendant's claim

simply asks that we view the evidence and weigh the inferences

in his favor, but this we cannot do. Commonwealth v. Arias, 78

Mass. App. Ct. 429, 435 (2010).

2. Evidence of operating after suspension. The defendant

also claims that the Commonwealth failed to prove that there was

sufficient evidence to support his conviction of operating a

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motor vehicle after notice of suspension of his license. The

Commonwealth concedes this to be true, and we agree. 1

Pursuant to G. L. c. 90, § 23, to establish operation after

a license has been revoked or suspended, the Commonwealth must

prove the defendant (1) operated a motor vehicle, (2) at the

time of that operation the defendant's license was revoked or

suspended; and (3) that the defendant had received notice that

his license had been or was about to be suspended or revoked.

Commonwealth v. Royal, 89 Mass. App. Ct. 168, 170 & n.3 (2016).

Relative to the third element, to establish proper notice, the

Commonwealth need only show that the registry of motor vehicles

properly mailed the notice. Commonwealth v. Lora, 43 Mass. App.

Ct. 136, 143 (1997). Here, the documentary evidence indicates

that the notice to the defendant of the suspension was mailed to

him after the date of the offense. 2 In this light, the evidence

was insufficient.

1 We note that the defendant's conviction for operating after
suspension was placed on file. Ordinarily, this would have
precluded appellate review, if the judge had complied with Mass.
R. Crim P. 28 (e), 453 Mass. 1501 (2009). See Commonwealth v.
Delgado, 367 Mass. 432, 438 (1975). As the record before us
does not reflect such compliance, and the Commonwealth does not
claim otherwise, we conclude that the defendant is entitled to
appellate review of the conviction on the merits.

2 Exhibit 1, which consisted of redacted registry of motor
vehicles records, contained a 2013 notice of suspension, and a
document indicating that notice was created on June 17, 2019
(the date after the offense occurred), and was received by the

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3. The prosecutor's closing argument. Finally, the

defendant claims that the prosecutor twice misstated the

evidence in his closing argument. Because the defendant did not

object to the claims he now raises on appeal, we review to

determine whether there was error, and if so, whether it created

a substantial risk of a miscarriage of justice.

To determine whether the prosecutor's closing argument

created a substantial risk of a miscarriage of justice, and

keeping in mind that "[e]rrors of this magnitude are

extraordinary events and relief is seldom granted," Commonwealth

v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions:

"(1) Was there error? (2) Was the defendant prejudiced by the

error? (3) Considering the error in the context of the entire

trial, would it be reasonable to conclude that the error

materially influenced the verdict? (4) May we infer from the

record that counsel's failure to object or raise a claim of

error at an earlier date was not a reasonable tactical

decision?" (Citations omitted.) Id. at 298. "Only if the

answer to all four questions is 'yes,' may we grant relief."

Id. See Commonwealth v. Russell, 439 Mass. 340, 345 (2003);

Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 693 (2015).

United States Postal Service on June 21, 2019, five days after
the offense.

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The two claimed misstatements occurred when the prosecutor

argued that (1) the defendant "said [the car] belonged to his

friend," and (2) that the defendant was "slurring his words."

Relative to the first statement, the defendant is correct that

there was no direct evidence that he told the officer the car

belonged to his friend. However, the officer did testify that,

when asked, the defendant told him the car was not his, "that

his friend had dropped him off and that he was waiting for him

to return." 3 Given this testimony, it was a fair inference from

the evidence that the defendant had implied that the car

belonged to his friend to deflect from the conclusion that the

defendant had operated the car. Nonetheless, for purposes of

our analysis, we will assume this was error. Relative to the

second statement, the defendant is correct that there was no

evidence offered that the defendant was "slurring his words."

This was error.

Although we answer the first Randolph question "yes," and

could easily do the same for question four, the answers to

questions two and three stand on a different footing. The

evidence supporting the defendant's guilt was quite strong, if

not compelling. The defendant was seen stumbling as he walked

3 The defendant also told the officer that he and "his friend
were coming from a party in Attleboro and that [the defendant]
believed he was still in Attleboro" when, in fact, he was in
Wrentham.

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to the car –- which the jury reasonably concluded he had been

driving –- and he swayed as he stood next to the car, where he

dropped on the ground approximately one hundred dollars in

various bills. When the officer approached the defendant, his

eyes were red, glassy, and bloodshot. From his breath, a strong

order of alcohol emanated. While the officer spoke to him, the

defendant swayed from side to side to a point where he had to

steady himself by leaning on the crash barrier protecting the

gas pump. He did not know what town he was in. Once the

defendant was inside the police cruiser, a strong order of

alcohol came from the defendant in the backseat area. The

defendant's strong alcohol smell continued at booking where

again he had trouble standing and swayed from side to side.

When we consider the above strong evidence supporting the

jury's verdict that the defendant was guilty of OUI, in

conjunction with the judge's jury instruction that closing

arguments are not evidence, 4 we decline to conclude that the

prosecutor's incorrect statements either unfairly prejudiced the

defendant or that the errors materially influenced the verdict.

Because we do not answer all four of the Randolph inquiries in

4 The judge also instructed the jury that closing arguments are
not substitutes for the evidence and are only provided to
"assist [the jury] in understanding what the evidence is and the
contention[s] of the parties." He also told the jury they were
the "sole and exclusive judges of the facts," and that they must
decide the case "solely on the evidence" admitted at trial.

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the affirmative, the defendant has failed to establish that the

two misstatements created a substantial risk that justice

miscarried. See Randolph, 438 Mass. at 298; Coutu, 88 Mass.

App. Ct. at 693. See also Commonwealth v. Dresser, 71 Mass.

App. Ct. 454, 458 n.10 (2008) (it is defendant's burden to

establish existence of substantial risk of miscarriage of

justice).

4. Conclusion. The defendant's judgment of conviction of

OUI is affirmed. The case is remanded to the District Court,

where the order placing count two of the complaint on file is to

be vacated. A judgment of not guilty on the count charging

operating a motor vehicle after suspension shall enter for the

defendant.

So ordered.

By the Court (Meade,
Massing & Sacks, JJ. 5),

Assistant Clerk

Entered: January 31, 2024.

5 The panelists are listed in order of seniority.

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