Commonwealth v. Antonio P. Teixeira.

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-475

COMMONWEALTH

vs.

ANTONIO P. TEIXEIRA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals his conviction, after a bench trial,

of operating a motor vehicle under the influence (OUI) of

intoxicating liquor in violation of G. L. c. 90, § 24 (1) (a)

(1). 1 On March 18, 2021, Brockton Police responded to the scene

of a "car versus pole" accident. The defendant was found inside

the vehicle, bleeding from an injury to his lip, with glassy,

bloodshot eyes, slurred speech, and slow reaction times. He was

unsteady on his feet and struggled to locate his driver's

license when asked to produce it.

1 The defendant was initially charged with operating under the
influence of liquor, second offense, pursuant to G. L. c. 90,
§ 24 (1) (a) (1), and of committing a marked lanes violation.
He was found not responsible for the marked lanes violation and,
because there was no certified conviction or other probative
evidence of a first OUI offense, the judge found the defendant
guilty of violating G. L. c. 90, § 24 (1) (a) (1), first
offense.
On appeal, the defendant argues that there was insufficient

evidence presented at trial to prove that he was under the

influence of alcohol, as opposed to a different source of

impairment (i.e., drugs, or a head injury). Accordingly, the

question before us on appeal is whether "any rational trier of

fact could have found the essential elements of the crime," and

specifically that the defendant was under the influence of

alcohol, beyond a reasonable doubt. Commonwealth v. Latimore,

378 Mass. 671, 677 (1979). Notably, the police officer who

responded to the scene provided lay opinion testimony that the

defendant was "impaired, under the influence of alcohol."

Because we conclude that the Commonwealth presented sufficient

evidence of intoxication by alcohol, we affirm.

Background. At 9:30 P.M. on March 18, 2021, Brockton

Police Officer Shannon O'Donnell was dispatched to the scene of

a single vehicle crash. O'Donnell testified that the fire

department and emergency medical services (EMS) were already

present when she arrived. O'Donnell saw that the defendant's

truck had collided with a utility pole on the side of the

street. The defendant was still inside the vehicle and was

bleeding profusely from a laceration on his lip. O'Donnell also

observed that the defendant's eyes were "very red and glassy"

and that his speech was slurred. O'Donnell asked the defendant

for his driver's license, but the defendant was slow to respond,

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appearing to search for the license but quickly forgetting he

had been asked to do so. The defendant exited the vehicle to

continue looking for his driver's license but was unsteady on

his feet and held on to his vehicle to support himself. As he

attempted to search for his license, he dropped certain items

from his pockets onto the ground, and almost fell over trying to

pick them up. At one point, the defendant confusedly offered

EMS personnel a credit card in lieu of his license.

When the defendant indicated that he wanted to drive the

truck home, Officer O'Donnell informed the defendant that his

truck would have to be towed, due to the damage from colliding

with the pole. The defendant replied, "What pole? I didn't hit

a pole." Officer O'Donnell did not administer field sobriety

tests as the defendant was injured and required transport to the

hospital.

O'Donnell did not smell an odor of alcohol from the

defendant, nor did she find any containers of alcohol in the

defendant's vehicle. Nevertheless, based on her observations of

the defendant's person and conduct, O'Donnell formed the opinion

that the defendant "was impaired, [and] under the influence of

alcohol." Specifically, in response to questions posed to her

during direct examination, O'Donnell stated:

COMMONWEALTH: At this time, based on your
observations of the defendant and the accident, did

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you form a suspicion as to the state of the
defendant's sobriety?

O'DONNELL: Yes.

COMMONWEALTH: What was that suspicion?

THE COURT: A suspicion or an opinion?

COMMONWEALTH: Suspicion.

THE COURT: Suspicion?

DEFENSE COUNSEL: Objection.

THE COURT: No, he can have that.

O'DONNELL: I had suspicions that he was under the
influence of alcohol and impaired.

. . . .

COMMONWEALTH: Did you form an opinion about the
defendant's state of intoxication?

O'DONNELL: Yes.

COMMONWEALTH: And that opinion was?

O'DONNELL: That he was impaired, under the influence
of alcohol.

There were no objections to the above testimony, other than

the one objection noted above. The Commonwealth did not present

other witnesses. There was no evidence of erratic driving by

the defendant prior to the crash, and there was no testimony

that the defendant had been observed consuming alcohol or drugs.

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On cross-examination, defense counsel brought out that O'Donnell

had not smelled an odor of alcohol or observed any containers of

alcohol in the truck. The defendant testified in his defense.

He stated that he spent the entire day working at a job site of

the construction company that he owns, and did not leave until

9:00 P.M. While driving home, a cat ran in front of the

defendant's vehicle, causing him to swerve and hit a telephone

pole. The defendant reported that he was "pretty out of it,"

and did not recall speaking with any police officers.

At the close of the evidence, the trial judge found that

there was "no reasonable doubt that [the defendant] was impaired

by alcohol at [the] time [of the accident]." The judge

expressly did not credit the testimony of the defendant to the

contrary.

Discussion. The sole question before us is whether the

evidence presented at trial was sufficient to support the

conviction. The defendant claims that the Commonwealth failed

to produce sufficient evidence that the defendant was under the

influence of alcohol (as opposed to some other intoxicating

substance, or that he was suffering from a head injury). The

applicable standard is well-known and asks "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."

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Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443

U.S. 307, 318-319 (1979).

"[T]o 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. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).

We focus on the third element, as no other element is in

dispute. "[T]he phrase 'under the influence' refers to

impairment, to any degree, of an individual's ability to safely

perform the activity in question." Commonwealth v. Veronneau,

90 Mass. App. Ct. 477, 479 (2016). "Thus, 'in a prosecution for

[OUI], the Commonwealth must prove beyond a reasonable doubt

that the defendant's consumption of alcohol diminished the

defendant's ability to operate a motor vehicle safely.'" Id.,

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

The Commonwealth "need not prove that the defendant was drunk,

only that alcohol diminished [his] ability to operate a motor

vehicle safely." Gallagher, supra at 392. Importantly, a

driver's "diminished capacity to operate a motor vehicle may be

inferred from circumstances other than actual bad driving."

Commonwealth v. Rollins, 59 Mass. App. Ct. 911, 912 (2003).

In this case the evidence of impairment was certainly more

than sufficient. The defendant was involved in a single car

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crash. His speech was notably slurred; when asked to produce

his driver's license he was slow to respond and fumbled with his

wallet; he was unsteady on his feet; and he seemed confused and

forgetful. Perhaps it is possible, as the defendant argues,

that these indicia were induced by the crash, where the

defendant seriously hit his head. But on sufficiency review we

do not view the evidence in the light most favorable to the

defendant; here a factfinder could certainly infer that the

defendant's impairment preceded the crash, and indeed, caused

it. Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018),

citing Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219

(2006) (evidence of a single car accident may be the basis for

an inference that the defendant-driver was impaired when the

accident occurred).

The closer question is whether there was sufficient

evidence that the defendant was impaired due to the consumption

of alcohol. In the case law addressing the sufficiency of

evidence to prove impairment by alcohol, there heretofore

generally has been something more than the indicia here -- that

is, the glassy eyes, slurred speech, unsteadiness, etc. -- that

ties the defendant's impairment to alcohol, as opposed to

possible other causes. This additional evidence can include,

for example, an odor of alcohol on the defendant's breath, the

presence of containers of alcohol in the car, observation of the

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defendant drinking, the failure of field sobriety tests, or

admissions by the defendant. See Gallagher, 91 Mass. App. Ct.

at 390-391 (sufficient evidence of intoxication included, among

other signs, bloodshot, glassy eyes, an odor of alcohol, slurred

speech, and the defendant's admission to having consumed three

beers immediately prior to driving); Commonwealth v. Rarick, 87

Mass. App. Ct. 349, 354 (2015) (the moderate odor of alcohol on

the defendant's person, his red and glassy eyes, and the fact

that he was speeding while driving were sufficient);

Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011)

(a strong odor of alcohol on the defendant's person, poor

balance, and glassy bloodshot eyes in addition to other

indicators, were deemed sufficient evidence of impairment).

Such evidence was not present here. There was, however,

Officer O'Donnell's testimony that the defendant was intoxicated

by alcohol. The Massachusetts case law establishes that lay

witnesses, including police officers, may offer opinion

testimony "regarding a defendant's level of sobriety or

intoxication," provided they do "not opine whether a defendant

operated a motor vehicle while under the influence of alcohol or

whether the defendant's consumption of alcohol diminished his

ability to operate a motor vehicle safely." Commonwealth v.

Canty, 466 Mass. 535, 544 (2013). See Commonwealth v. Jones,

464 Mass. 16, 17 n.1 (2012). Canty expressly holds that such

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lay opinions as to a defendant's sobriety are both relevant and

probative of impairment. Canty, 466 Mass. at 542 ("a lay

opinion is relevant only where, as with sobriety, 'the principal

objective symptoms are so well known' that we consider the lay

opinion to have probative value" [citations omitted]). Here, in

response to the question whether she had formed an opinion as to

the defendant's intoxication, O'Donnell opined without objection

that she believed the defendant "was impaired, under the

influence of alcohol." Her testimony did not impermissibly

offer an opinion on the ultimate issue. Rather, under Canty,

her testimony was probative evidence that the defendant was

intoxicated by alcohol, and not some other intoxicating

substance. 2

Because, pursuant to Latimore, we conclude that O'Donnell's

opinion testimony and the other indicia of the defendant's

intoxication discussed above, taken together, constitute

2 The defendant did not raise a Daubert/Lanigan-type challenge to
O'Donnell's testimony -- that is, the defendant did not argue
that O'Donnell was not competent (or that the foundation was
inadequate) to distinguish between impairment caused by alcohol,
as opposed to other possible causes. Commonwealth v. Lanigan,
419 Mass. 15 (1994).

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sufficient proof that the defendant was under the influence of

alcohol, we affirm.

Judgment affirmed.

By the Court (Vuono, Singh &
Englander, JJ. 3),

Clerk

Entered: November 15, 2023.

3 The panelists are listed in order of seniority.

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