Commonwealth v. Den Trieu.

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

23-P-662

COMMONWEALTH

vs.

DEN TRIEU.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Den Trieu, was convicted of operating a

motor vehicle under the influence of alcohol (OUI), in violation

of G. L. c. 90, § 24 (1) (a) (1), after a jury-waived trial. In

the subsequent offender trial that immediately followed, the

judge found that the Commonwealth failed to carry its burden of

proving the prior OUI offense. On appeal from the OUI

conviction, the defendant argues that the evidence was

insufficient and that a hospital record was admitted in error.

We affirm.

1. Sufficiency of the evidence. Under the familiar

standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979), we view the evidence in the light most favorable to the

Commonwealth to determine whether any rational trier of fact

could have found the elements of the crime beyond a reasonable
doubt. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385,

392 (2017); Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 351

(2015). The defendant does not contest that he operated a motor

vehicle on a public way; he challenges only the evidence that

his ability to drive was impaired by the consumption of alcohol.

See Commonwealth v. Connolly, 394 Mass. 169, 173 (1985);

Gallagher, supra.

In finding the defendant guilty, the judge specifically

relied on the State trooper's observations of the defendant.

The trooper's observations included that when she was dispatched

to the accident scene and found the defendant, he was sitting in

the driver's seat of his heavily damaged car with the airbags

deployed, "just staring straight ahead." The car was still in

drive, and the defendant appeared "extremely confused," "[v]ery

disoriented," and minimally responsive. There was an odor of

alcohol, the defendant's eyes were bloodshot and glassy, and his

speech was "very slurred and thick-tongued." When he was

assisted from his car to an ambulance, he had difficulty walking

and was "unsteady on his feet." The judge, as trier of fact,

properly relied on these "classic symptoms of alcohol

intoxication." Gallagher, 91 Mass. App. Ct. at 392. See

Commonwealth v. AdonSoto, 475 Mass. 497, 510 (2016) (police

officer's testimony of "odor of alcohol coming from the

defendant, slurred speech, unsteadiness when standing, and

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glassy eyes" supported "finding of impaired driving"). The

judge could also rely on the trooper's lay opinion that the

defendant was "drunk." See Commonwealth v. Canty, 466 Mass.

535, 544 (2013) (lay witness may offer "opinion regarding a

defendant's level of sobriety or intoxication" so long as she

does not opine on ultimate issue).

The judge also considered "the nature of this accident" and

the defendant's "admission with regard to consuming alcohol."

As to the former, the accident occurred in the early morning

hours and involved two cars, both of which were heavily damaged.

The fact that the defendant was involved in an accident is

probative evidence that he was impaired by alcohol. See

Commonwealth v. Marley, 396 Mass. 433, 442 (1985); Commonwealth

v. Bouley, 93 Mass. App. Ct. 709, 712 (2018). As to the latter,

the defendant admitted that he had consumed "a shot and a beer"

earlier in the evening. The evidence was sufficient to sustain

the Commonwealth's burden.

2. Hospital record. The judge admitted in evidence one

page of the defendant's hospital record, which included under

the heading "Clinical Course," the notation, "Patient was

allowed to sober up in the ED and then reevaluated." 1 The

1 Contrary to the suggestion in the defendant's brief, the
page of the record with the notion "possible ETOH" was not
admitted.

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defendant objected that the records were not related to

treatment or diagnosis and contained multiple levels of hearsay.

On appeal, however, the defendant argues for the first time that

the hospital record was testimonial hearsay, inadmissible under

Crawford v. Washington, 541 U.S. 36 (2004). We need not belabor

the standard of review for this claim, because it is without

merit. The primary purpose of the challenged notation was to

assess the defendant's condition to determine the appropriate

course of treatment, not to create a substitute for trial

testimony. See Commonwealth v. Wardsworth, 482 Mass. 454, 464 &

n.18 (2019). As such, it was not "testimonial" within the

meaning of Crawford and its progeny. See Commonwealth v. Irene,

462 Mass. 600, 617-618 (2012); Commonwealth v. Dyer, 77 Mass.

App. Ct. 850, 854 (2010).

Judgment affirmed.

By the Court (Vuono,
Massing & Toone, JJ. 2),

Assistant Clerk

Entered: May 1, 2024.

2 The panelists are listed in order of seniority.

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