Commonwealth v. Molly D. Lobo.

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-1247

COMMONWEALTH

vs.

MOLLY D. LOBO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial, the defendant was convicted of

operating under the influence of intoxicating liquor (OUI).1 On

appeal, she claims that trial counsel was ineffective. We

affirm.

The crux of the defendant's appeal is that the Commonwealth

failed to prove public way, an essential element of OUI, and

that through cross-examination, her trial counsel elicited

testimony that proved this element.2 Generally, to prevail on an

ineffective assistance of counsel claim a defendant must

demonstrate that, but for her counsel's "serious incompetency,

1 The defendant was acquitted of negligent operation of a motor
vehicle.

2 The defendant does not challenge the sufficiency of the other
elements of OUI, and therefore we need not address them. See
G. L. c. 90, § 24 (1) (a) (1).
inefficiency, or inattention," Commonwealth v. Saferian, 366

Mass. 89, 96 (1974), "the result of the proceeding would have

been different." Commonwealth v. Mahar, 442 Mass. 11, 15

(2004), quoting Strickland v. Washington, 466 U.S. 668, 694

(1984). The defendant's claim here is inextricably woven into

the sufficiency of the evidence. "In determining whether the

Commonwealth met its burden to establish each element of the

offense charged, . . . '[the] question is whether, after viewing

the evidence in the light most favorable to the [Commonwealth],

any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.'" Commonwealth

v. Colas, 486 Mass. 831, 836 (2021), quoting Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979).

The Commonwealth must prove that the defendant operated a

motor vehicle on a public way, which is "any way or . . . any

place to which the public has a right of access, or . . . any

place to which members of the public have access as invitees or

licensees." Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 217

(2019), quoting G. L. c. 90, § 24 (1) (a) (1). "Way" is further

defined to include "any public highway, private way laid out

under authority of statute, way dedicated to public use, or way

under control of park commissioners or body having like powers."

Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 832 (2010),

quoting G. L. c. 90, § 1.

2
On direct examination, Brockton police officers Michael

Minnock and Steven Pierce testified that they were dispatched to

81 Sophia Avenue where they saw a Hyundai, facing southeast,

diagonally in the middle of the street. The defendant was in

the driver's seat of the car, which was running. Minnock

described Sophia Avenue as "a two-way, undivided street" that is

paved. He also testified that the Brockton fire department and

emergency medical services arrived at the scene.

"[T]he objective appearance of the way . . . is

determinative of its status" (citation omitted). Belliveau, 76

Mass. App. Ct. at 832. Taking the evidence in its totality, the

fact finder could conclude that the Commonwealth proved that

Sophia Avenue was a public way for the following reasons. The

police were dispatched to number "81," from which an inference

could be drawn that 81 Sophia Avenue was a residence that

abutted the street. And Minnock testified that Sophia Avenue

was a paved, two-way street, that emergency personnel accessed.

While the prosecutor could have elicited additional testimony on

this point, the evidence sufficed to prove the element of public

3
way. See Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549-

550 (1996) (indicia of public way include paving and abutting

houses).

Judgment affirmed.

By the Court (Rubin, Blake &
Shin, JJ.3),

Assistant Clerk

Entered: March 5, 2024.

3 The panelists are listed in order of seniority.

4