Commonwealth v. Jennifer L. Soule.

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-1261

COMMONWEALTH

vs.

JENNIFER L. SOULE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the District Court, the

defendant was convicted of operating a motor vehicle while under

the influence of narcotic drugs, in violation of G. L. c. 90,

§ 24 (1) (a) (1). 1 On appeal, she claims that her motion for a

required finding of not guilty should have been allowed because

there was no evidence from which a rational trier of fact could

have found beyond a reasonable doubt that she was under the

1 The defendant also was charged with negligent operation of a
motor vehicle, two counts of possession with intent to
distribute a class E substance (Adderall, Gabapentin, and
Xanax), possession with intent to distribute a class C substance
(Lorazepam), and possession with intent to distribute a class B
substance (morphine). Immediately before trial, the defendant
admitted to sufficient facts with respect to the charges of
negligent operation of a motor vehicle and possession with
intent to distribute morphine, and agreed she was responsible
for a marked lanes violation. The judge dismissed the remaining
charges at the request of the Commonwealth.
influence of a narcotic drug as defined by G. L. c. 94C, § 1

(§ 1). We agree and reverse the judgment of conviction.

Background. We summarize the facts as the judge could have

found them, in the light most favorable to the Commonwealth.

See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

At approximately 6:30 P.M., on January 7, 2020, Sergeant Patrick

Mortimer of the Lancaster Police Department received a dispatch

regarding the erratic operation of a motor vehicle on Route 117

and proceeded to that location. By the time he arrived, the

vehicle in question had crossed over the marked divider into

oncoming traffic and collided with another car. Sergeant

Mortimer approached and spoke with the driver, subsequently

identified as the defendant, who was outside of her car

inspecting the damage. Sergeant Mortimer testified that the

defendant "was acting very erratically. She was speaking very

slowly and walking very slowly, then all of a sudden she was

speaking very rapidly." The defendant began to walk quickly

around her car to the point where Sergeant Mortimer became

concerned that she might be hit by another vehicle. Sergeant

Mortimer asked the defendant what happened, to which she

responded that "she was driving home from work and her dog

jumped into her lap, causing her to swerve." Sergeant Mortimer

then asked if she was using any drugs. The defendant replied

that she took Suboxone that morning and that she had a

2
prescription for it. Thereafter, the defendant agreed to

participate in some roadside assessments, which she could not

complete to Sergeant Mortimer's satisfaction. The defendant was

arrested and transported to the police station. The police

subsequently found numerous pill bottles in the defendant's car

and purse. Sergeant Mortimer believed that Suboxone was also

found in the car; the Suboxone was returned to the defendant

because she had a prescription for it. 2

Discussion. The statutory crime of operating a motor

vehicle while under the influence of narcotic drugs "does not

criminalize operation under the influence of all narcotics,

stimulants, or depressants, but only those 'defined in section

one of chapter ninety-four C.' Absent proof that the

defendant's operation was impaired by a drug, depressant, or

stimulant that is among those so defined, no statutory violation

arises." Commonwealth v. Ferola, 72 Mass. App. Ct. 170,

170 (2008), quoting G. L. c. 90, § 24 (1) (a) (1).

As an initial matter, we note that the defendant agrees

that the evidence was sufficient to warrant a finding that she

operated a motor vehicle on a public way and that her ability to

operate the vehicle was impaired. Her sole contention on appeal

2 An open container of marijuana was recovered from the vehicle's
center console, but there was no indication of marijuana use and
the defendant was not charged with any offenses related to the
marijuana.

3
is that because there was no evidence that Suboxone, the

substance she ingested, qualified as a prohibited substance

under § 1, there could be no violation and, consequently, the

judge erred when he denied her motion for a required finding of

not guilty.

The Commonwealth acknowledges that it did not present any

evidence that Suboxone is a narcotic drug that falls within the

scope of § 1. It asserts, however, that it met its burden of

proof because the judge took judicial notice of the fact that

Suboxone is a prohibited substance as defined by the statute.

We assume without deciding that the judge could have taken

judicial notice that Suboxone is such a substance since that

fact is a "subject of generalized knowledge readily

ascertainable from authoritative sources, and thus appropriate

for judicial notice." 3 Commonwealth v. Finegan, 45 Mass. App.

Ct. 921, 923 (1998) (quotation omitted). However, it is not

clear that the judge did so here.

3 We note that approximately two years before the trial in this
case, in Commonwealth v. Rodriguez, 484 Mass. 1047, 1047 (2020),
the Supreme Judicial Court referred to Suboxone as a class B
substance. In addition, in Care & Protection of Zeb, 489 Mass.
783, 784 n.2 (2022), the Supreme Judicial Court explained that
"Suboxone is the brand name of a medically based treatment
product containing buprenorphine and naloxone, prescribed for
the treatment of opioid dependence."

4
There is no question that the judge was not requested to

take judicial notice regarding Suboxone, 4 and the judge never

stated that he was doing so. The Commonwealth does not argue

otherwise. Instead, the Commonwealth contends that the judge

implicitly took judicial notice. In support of its position,

the Commonwealth relies on an exchange between the judge and

defense counsel during defense counsel's argument for a required

finding of not guilty. During that exchange, defense counsel

argued that the Commonwealth had not "presented any proof or

testimony relating to the type of drug, class of drug," and the

judge responded by asking, "Didn't [the Commonwealth] indicate

that [the defendant] had admitted that it was Suboxone?"

The prosecutor argued: "[Suboxone] is a controlled substance

under both the controlled substances laws as well as OUI drugs.

And therefore, certainly the Commonwealth has met its burden at

this time." Thereafter, in his closing argument the prosecutor

asserted that Suboxone is a controlled substance.

According to the Commonwealth, the judge's question to

defense counsel regarding the defendant's admission to having

taken Suboxone demonstrates that the judge believed Suboxone was

a narcotic drug, and because the judge subsequently denied the

4 Generally, when a party intends to rely on judicial notice to
establish a particular fact, the party files a motion in limine
outlining the request and the reasons for it.

5
motion for a required finding of not guilty and then (following

the Commonwealth's closing) found the defendant guilty, he

necessarily took judicial notice that Suboxone was a prohibited

substance under § 1.

The Commonwealth's argument is not without force. However,

the record does not provide a sufficient basis from which we can

conclude that the judge took judicial notice as the Commonwealth

now asserts. The Commonwealth did not raise the issue before

trial or during its case in chief, and the judge did not make

any explicit ruling regarding the nature of Suboxone sua sponte.

Put simply, in a criminal case where the defendant's liberty is

at stake, more than what has been shown here is required, even

in the context of a jury-waived trial. 5

Furthermore, even if we were to assume that a judge can

take judicial notice implicitly, a point we need not reach, see

Finegan, 45 Mass. App. Ct. at 923, it is well-settled that

judicial notice should not be taken when the parties do not have

5 We presume, as the law requires, that the judge correctly
instructed himself on the law. See Commonwealth v. Garvey,
99 Mass. App. Ct. 139, 143 (2021). However, that the judge
knows the law does not necessarily mean that he took judicial
notice of a fact without being requested to do so. We note that
in denying the defendant's motion for a required finding of not
guilty, the judge referred to Commonwealth v. Johnson, 59 Mass.
App. Ct. 164 (2003), in which this court concluded that a pill
book purchased at a CVS pharmacy was not an appropriate subject
for judicial notice. Because it is not clear whether the judge
was relying on that ruling or distinguishing it, we take nothing
from his reference to it.

6
notice. See Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789

(2018) ("Even in situations where judicial notice is

appropriate, it should not be taken without notice to the

parties and an opportunity to be heard"). Here, it is

undisputed that the defendant received no notice that the

Commonwealth intended to request that the judge take judicial

notice that Suboxone is a prohibited substance and, as a result,

he was not given an opportunity to be heard on the issue.

In short, the Commonwealth did not meet its burden of

demonstrating that the drug that the defendant admitted she had

taken and that impaired her ability to operate her vehicle was a

narcotic drug, depressant, or stimulant substance as defined by

§ 1. The defendant's motion for a required finding of not

guilty should have been allowed. The judgment is reversed, the

finding is set aside, and judgment shall enter for the

defendant.

So ordered.

By the Court (Vuono, Meade &
Walsh, JJ. 6),

Clerk

Entered: December 27, 2023.

6 The panelists are listed in order of seniority.

7