Commonwealth v. Melissa Martin.

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

24-P-392

COMMONWEALTH

vs.

MELISSA MARTIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of operating

a motor vehicle while under the influence of drugs (OUI-drugs).1

On appeal the defendant argues that the evidence was

insufficient to support her conviction and that the trial judge

abused his discretion when he allowed a State police trooper to

give an opinion about the defendant's sobriety. We affirm.

Background. We summarize the facts in the light most

favorable to the Commonwealth. See Commonwealth v. Latimore,

378 Mass. 671, 677 (1979). On October 22, 2020, Jonathan

1The defendant pleaded guilty to the subsequent (fourth)
offense portion of the charge.
Magazzu, a MAPFRE operator,2 was working a 3 P.M. to 7 P.M. shift

on Route 495 when he saw a car stopped at the bottom of the exit

ramp leading to Route 114 toward North Andover. Part of the car

"was on the actual street," and part was on the "grass and on

the actual shoulder."

Magazzu approached and saw that "the passenger side door

was wide open" and an "unresponsive female," later identified as

the defendant, was in the driver's seat. Magazzu knocked on the

door and called out, "are you okay?" to try to wake the

defendant without startling her. When he received no response,

Magazzu "reached in and grabbed [the defendant] by the arm" and

"shook" her while asking if she was awake. The defendant's body

then "arched up," and her "head [went] back," in what Magazzu

said was not a "relaxed sleeping type of position." Magazzu

called for medical assistance.

Trooper Alexander Vath was the first to respond to the

call, just after 6 P.M. When he arrived, the defendant was

still seated in the car, which Trooper Vath described as "parked

in the middle of an exit ramp." The defendant was awake but

"appeared fatigued, sleepy, and generally confused." Concerned

2 Magazzu testified that MAPFRE operators drive help vans
"up and down the highway" doing "basically the same thing that
AAA would do," including "helping with out of gas, tire changes,
[and] simple tasks with stranded motorists." Operators "are
trained with CPR" and "work side by side with [S]tate police."

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for her wellbeing, Trooper Vath ordered the defendant to get out

of the car and noticed that she "struggl[ed]" while trying to do

so.

Troopers Samantha Cila and Ryan Durkin arrived on scene

after the defendant had exited the car. Trooper Cila described

the defendant to be "kind of out of it by the way she was

speaking" and "in and out of . . . a gaze," as though she was

"not super sure of where she was." Similarly, Trooper Durkin

described the defendant as "slow, kind of lethargic, [and] . . .

kind [of] out of it." Trooper Durkin saw that the keys were in

the ignition, but the engine was not running and the lights were

not on. He also saw an ignition interlock device affixed to the

steering wheel.

Inside the car the troopers found a "needle cap" in the cup

holder and four hypodermic needles inside a purse that was in

the rear passenger compartment. Two of the needles contained a

"red liquid substance" and were "in a loaded position," while

the other two were "unused." At Trooper Vath's request, the

defendant rolled up her sleeves, revealing several track marks.

Trooper Durkin noticed that one of the track marks had dried

blood around it, which he testified was consistent with "a fresh

track mark." When asked if "there was anything illegal in the

car," the defendant removed a "baggie" containing a "tan powder

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substance" from her left pants pocket, stating that it was a

"bag of dope."

The defendant was transported by ambulance to the hospital.

There, after being advised of her Miranda rights, the defendant

told Trooper Durkin that she "had shot up between the hours of

11:00 and 12:00" earlier that day. The defendant's medical

records also contain several notations that she admitted to

using "heroin" earlier that day. The defendant claimed to

Trooper Durkin that she had been on her way to Chelmsford when

her "vehicle started to die" and "she rolled off to the bottom

of the ramp as far as the car would go." She then "essentially

. . . fell asleep."

Discussion. 1. Sufficiency of the evidence. In assessing

sufficiency, we ask "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" (citation omitted). Latimore, 378 Mass. at

677. To sustain a conviction of OUI-drugs, the Commonwealth

must prove that the defendant "(1) physically operated a [motor]

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

narcotic drug." Commonwealth v. Bouley, 93 Mass. App. Ct. 709,

712 (2018). Here, the defendant argues that the Commonwealth

failed to meet its burden for two reasons: it offered no

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evidence that the defendant was impaired by a narcotic drug as

defined in G. L. c. 94C, § 1; and, even assuming impairment, the

evidence was insufficient to show that the defendant was

impaired while operating the vehicle. Neither argument

persuades us.

Prior to trial and on the Commonwealth's motion, the judge

took judicial notice that heroin is a scheduled drug under G. L.

c. 94C, § 1. The defendant did not object, and the judge later

instructed the jury "as a matter of law that heroin is a

narcotic drug." On appeal the defendant does not challenge the

judge's ruling or the instruction but contends that the

Commonwealth offered no proof that the particular drug involved

was heroin. In so arguing, however, the defendant does not

address the notations in the medical records -- which were

admitted as a joint exhibit with agreed-on redactions -- that

she specifically admitted to using heroin that day. There was

circumstantial evidence corroborating this admission, including

the "fresh track mark" on the defendant's arm, the needles found

in her car, her description of the bag of tan powder in her

pocket as a "bag of dope," and her admission to Trooper Durkin

that she had "shot up" that morning. Viewing this evidence in

the light most favorable to the Commonwealth, it was sufficient

to show that the drug at issue was heroin. See Bouley, 93 Mass.

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App. Ct. at 713; Commonwealth v. Alisha A., 56 Mass. App. Ct.

311, 313-315 (2002).

Contrary to the defendant's claim, the Commonwealth was not

required to establish the precise quantity or concentration of

the drugs that she used in order to prove impairment. Rather,

the Commonwealth's burden was to show "that the use of a

narcotic drug resulted in the 'impairment, to any degree, of an

individual's ability to safely perform the activity in

question.'" Bouley, 93 Mass. App. Ct. at 712, quoting

Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (2016).

The Commonwealth presented ample evidence to meet this burden.

Magazzu found the defendant unresponsive in her car, which was

parked in the middle of an exit ramp with the passenger-side

door wide open. When Magazzu shook the defendant, her body

arched back in an unnatural manner that was not consistent with

someone who had been sleeping. Later, she struggled to get out

of the car and appeared to the troopers to be confused, "out of

it," and unsure where she was. The jury could have found from

this evidence that the defendant was impaired. See Bouley,

supra at 712-713 ("Considering that the defendant was

unconscious and barely breathing at the scene of the accident,

the jury could reasonably infer that whatever amount of fentanyl

he took was sufficient to impair his capacity to operate the car

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safely"). The defendant's arguments to the contrary ask us to

view the evidence in the light least favorable to the

Commonwealth, which we may not do. See Latimore, 378 Mass. at

677.

A reasonable juror could also have found that the defendant

was impaired while operating a motor vehicle. The evidence was

plainly sufficient to show operation, given that the defendant

was the only person in the car and that she admitted to Trooper

Durkin that she drove it to its resting spot. See Commonwealth

v. Lagotic, 102 Mass. App. Ct. 405, 408-409 (2023). The

defendant does not appear to contest this point but argues that

there was no evidence that she was impaired "at the time of the

last possible operation," about an hour before the troopers

arrived on scene.3 We take the defendant to be suggesting that

she could have been sober while driving and that she consumed

the heroin only after she parked. But putting aside that the

defendant did not develop any such theory at trial, the

Commonwealth "need not 'exclude every reasonable hypothesis of

innocence' to prove its case, if the record viewed in its

entirety supports 'a conclusion of guilt beyond a reasonable

An employee from an ignition interlock provider company
3

testified that the defendant's car was shut off at 5:09 P.M. and
not restarted until the next day. There is no evidence as to
the precise time that Magazzu came upon the defendant, but it
was before Trooper Vath's arrival around 6 P.M.

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doubt.'" Commonwealth v. Platt, 440 Mass. 396, 401 (2003),

quoting Commonwealth v. Merola, 405 Mass. 529, 533-534 (1989).

The evidence here -- in particular, the defendant's admission to

using heroin earlier and the state in which the car was found,

parked in the middle of an exit ramp -- was sufficient for the

jury to find that the defendant was under the influence of

heroin when she drove the car there. See Bouley, 93 Mass. App.

Ct. at 711-712 ("The inferences that support a conviction need

only be reasonable and possible; [they] need not be necessary or

inescapable" [citation omitted]).

2. Opinion testimony. Prior to trial the Commonwealth

moved to elicit opinion testimony from Trooper Vath that the

defendant "appeared impaired by an opiate," stating that the

opinion was based on Trooper Vath's observations of the

defendant and his past experience as an emergency medical

technician (EMT). The defendant objected on the grounds that

she did not receive timely notice and that Trooper Vath was not

qualified to give expert testimony. After expressing doubt that

Trooper Vath was "being offered as an expert," the judge ruled

that he would only be "permitted to testify that the [d]efendant

appeared to be impaired." The Commonwealth then proceeded to

elicit testimony from Trooper Vath that he worked for many years

as an "EMT basic" and later as an "EMT paramedic" and that

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during that time he interacted with people suspected of drug use

on an almost daily basis. When the Commonwealth then asked

whether he "ha[d] an opinion as to [the defendant's] sobriety"

based on his observations that evening, Trooper Vath replied, "A

lack thereof, Counselor." The judge overruled the defendant's

objection.

On appeal the defendant argues that the judge's rulings ran

afoul of Commonwealth v. Gerhardt, 477 Mass. 775, 785 (2017), in

which the court held that a police officer may not, "without

being qualified as an expert, . . . offer an opinion that a

defendant was intoxicated by marijuana." The defendant further

argues that the judge should have excluded the testimony on the

ground of late disclosure. Because these issues were preserved,

"we must determine whether the admission in evidence . . .

constituted prejudicial error." Commonwealth v. Gallagher, 91

Mass. App. Ct. 385, 389 (2017). "An error is not prejudicial if

it did not influence the jury, or had but very slight effect"

(citation omitted). Id.

We need not resolve whether the judge properly admitted

Trooper Vath's testimony because, even assuming error, it was

not prejudicial. As described above, the evidence of the

defendant's impairment was substantial. In addition, the judge

instructed the jury that they were the sole arbiters of the

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facts and the credibility of the witnesses, that they could

accept or reject any portion of a witness's testimony, and that

one of the factual questions they had to decide was whether the

defendant was under the influence of a narcotic drug on the

evening in question. Given these instructions and the strong

evidence of impairment, we are fairly assured that Trooper

Vath's brief testimony about the defendant's sobriety did not

influence the jury's verdict or had only a very slight effect.

See Gallagher, 91 Mass. App. Ct. at 389-391. The defendant has

also failed to articulate what prejudice she suffered from the

late disclosure of the testimony. See Commonwealth v. Hamilton,

426 Mass. 67, 70 (1997) ("When the ground for . . . exclusion of

evidence involves late disclosure by the prosecution, without

any showing of bad faith on its part . . ., a defendant is

required to show material prejudice from the disclosure before a

new trial can be considered").

Judgment affirmed.

By the Court (Blake, C.J.,
Shin & Hand, JJ.4),

Clerk

Entered: March 3, 2025.

4 The panelists are listed in order of seniority.

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