Commonwealth v. Lagotic

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22-P-616 Appeals Court

COMMONWEALTH vs. SEAN C. LAGOTIC.

No. 22-P-616.

Middlesex. January 5, 2023. - March 15, 2023.

Present: Ditkoff, Singh, & Grant, JJ.

Motor Vehicle, Operating under the influence, Operation.
Evidence, Corroborative evidence. Practice, Criminal,
Required finding.

Complaint received and sworn to in the Concord Division of
the District Court Department on December 13, 2019.

The case was tried before Stephen B. Geary, J.

Chia Chi Lee, Assistant District Attorney, for the
Commonwealth.
Sean J. Gallagher for the defendant.

DITKOFF, J. After a jury in the District Court convicted

the defendant of operating a motor vehicle under the influence

of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1), the trial

judge entered a required finding of not guilty pursuant to Mass.
2

R. Crim. P. 25 (b) (1), as amended, 420 Mass. 1502 (1995).1 The

Commonwealth now appeals from this order, pursuant to Mass. R.

Crim. P. 25 (c) (1), as amended, 420 Mass. 1502 (1995).

Concluding that the jury reasonably found that the defendant

operated the motor vehicle from evidence that he was found on

the roadside near the crashed vehicle, requested medical

attention, and repeatedly admitted to multiple persons that he

operated the vehicle, we vacate the order allowing the motion

for a required finding of not guilty.

1. Background. On December 13, 2019, at approximately

1:42 A.M., an Acton police officer responded to the intersection

of Route 2 and Main Street. The weather was "cold, but clear"

and the roads were "dry and clear," having been "salted over

from past storms." The officer observed tire marks from the

Route 2 on-ramp into the woods. The tracks "just missed the

guard rails" and "went a hundred feet into the woods." A black

Toyota Camry was in the woods at the end of the tracks. The

airbags had deployed.2

1 The defendant earlier admitted to sufficient facts and
received a continuance without a finding on a charge of
negligent operation, G. L. c. 90, § 24 (2) (a). No issue
concerning this admission is raised in this appeal.

2 The officer agreed on cross-examination that he had
"learned that airbags had deployed in that vehicle." Neither
party explored whether multiple airbags had deployed or which
ones.
3

The officer approached the defendant, who was talking to

another officer on the roadside. The officer smelled "an

overwhelming odor of an alcoholic beverage," "observed [the

defendant's] eyes to be red and glassy," and detected "a slight

slur to his speech."

The officer asked the defendant how he crashed. The

defendant "said he was coming on the on-ramp and, then, he hit

the snow and, then, lost traction and went into the woods." The

officer asked the defendant where he was coming from. The

defendant said that he was coming from Belmont, where he was a

barber. The defendant reported that he had "stopped for dinner

and drinks." The defendant first said that he had imbibed "one

margarita" and then said that he had imbibed two.

The defendant agreed to perform field sobriety tests.

During the "walk-and-turn test," the defendant failed to follow

the instruction to watch his feet. He raised his arms instead

of keeping them at his side, "missed heel-to-toe," "stepped off

the line," and stopped walking prior to finishing the test.

During the "one-legged stand test," he "immediately started

losing his balance." He raised his arms, "began hopping

backwards," and "put his foot on the ground." The officer

placed the defendant under arrest.

During booking, the defendant said, "I think I have a

concussion, I might need to see someone." Paramedics were
4

summoned to assist him. One paramedic asked the defendant how

fast he was going, and the defendant "said 60 to 70 miles per

hour."3

At trial, the officer was the only witness. At the

conclusion of his testimony, the defendant moved for a required

finding of not guilty, which the trial judge denied. The

defense introduced a videotape of the booking and rested. The

defendant then again moved for a required finding of not guilty,

arguing that there was insufficient evidence of impairment. The

trial judge sua sponte raised the issue whether there was

sufficient evidence of operation. After some discussion, the

judge decided to reserve ruling on the renewed motion and

submitted the case to the jury.4

3 The officer testified that the speed limit on Route 2
westbound is forty-five miles per hour. He did not state what
the speed limit was on the on-ramp.

4 A motion for a required finding of not guilty made at the
close of the Commonwealth's case must be ruled on before the
case proceeds. Mass. R. Crim. P. 25 (a), as amended, 420 Mass
1502 (1995). This is so that the defendant's decision whether
to present a case -- and what sort of case to present -- is
informed by the ruling on the required finding motion. See
Commonwealth v. Yasin, 483 Mass. 343, 351 (2019). As a motion
at the close of all evidence does not involve this interest, a
judge may -- as here -- reserve decision until "before the jury
returns a verdict, after the jury returns a verdict of guilty,
or after the jury is discharged without having returned a
verdict." Mass. R. Crim. P. 25 (b) (1). Of course, an appeal
by the Commonwealth is permissible only when the jury has
returned a guilty verdict. See Mass. R. Crim. P. 25 (c) (1);
United States v. Martin Linen Supply Co., 430 U.S. 564, 575
5

The next day, the jury returned a guilty verdict. The

trial judge then entered a required finding of not guilty,

concluding that "[t]here was no evidence as to this gentleman

operating the vehicle" and that the defendant's admissions were

not corroborated. This appeal followed.

2. Standard of review. "[W]e consider the evidence

introduced at trial in the light most favorable to the

Commonwealth, and determine whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt." Commonwealth v. Tsonis, 96 Mass. App. Ct.

214, 216 (2019), quoting Commonwealth v. Oberle, 476 Mass. 539,

547 (2017). "The inferences that support a conviction 'need

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

inescapable.'" Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378

(2017), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295,

303 (2016). "Furthermore, when resolving issues of sufficiency

of the evidence, we resolve all issues of credibility in favor

of the Commonwealth." Commonwealth v. Sutherland, 93 Mass. App.

Ct. 65, 71 (2018). The standard of review is the same in the

context of the Commonwealth's appeal pursuant to Mass. R. Crim.

P. 25 (c) (1) as it is in the context of a defendant's appeal

(1977); United States v. Wilson, 420 U.S. 332, 352-353 (1975);
Commonwealth v. Brangan, 475 Mass. 143, 146 (2016).
6

from a conviction. See Commonwealth v. Hamilton, 83 Mass. App.

Ct. 406, 409-410 (2013).

3. Sufficiency of the evidence of operation. In a

prosecution for operating under the influence of intoxicating

liquor, the Commonwealth may proceed on an impaired operation

theory, a per se theory, or both. See Commonwealth v. Hebb, 477

Mass. 409, 409 (2017); Commonwealth v. Dacosta, 85 Mass. App.

Ct. 386, 387 (2014). Under either theory, the Commonwealth must

"prove that the defendant (1) physically operated a vehicle;

(2) 'on a public way or place to which the public has a right of

access.'" Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133-

134 (2018), quoting Commonwealth v. AdonSoto, 475 Mass. 497, 509

(2016). Under a per se theory, the third element is that the

defendant "had a blood alcohol content percentage of .08 or

greater." Commonwealth v. Zeininger, 459 Mass. 775, 778, cert.

denied, 565 U.S. 967 (2011). Under the impaired operation

theory, the third element is "that the defendant was under the

influence of alcohol," Commonwealth v. Gallagher, 91 Mass. App.

Ct. 385, 392 (2017), meaning "that the defendant's consumption

of alcohol diminished the defendant's ability to operate a motor

vehicle safely," Commonwealth v. Rarick, 87 Mass. App. Ct. 349,

352 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173

(1985). Here, the Commonwealth proceeded only on an impaired

operation theory.
7

For sufficiency purposes, only the element of operation is

at issue.5 In this regard, the defendant told the officer that

"he was coming on the on-ramp and, then, he hit the snow and,

then, lost traction and went into the woods." The defendant

further explained that he had driven from Belmont, where he was

a barber, and had stopped for dinner and drinks. At booking,

the defendant said, "I think I have a concussion, I might need

to see someone." After the police summoned medical attention, a

paramedic "asked him how fast he was going and he said 60 to 70

miles per hour."

The defendant's repeated confessions to driving the vehicle

constituted powerful evidence of operation. See Commonwealth v.

Adams, 421 Mass. 289, 291 (1995); Commonwealth v. Hilton, 398

Mass. 63, 67 (1986). Nonetheless, "a criminal defendant may not

be convicted solely on the basis of an uncorroborated

confession." Commonwealth v. Leavey, 60 Mass. App. Ct. 249, 251

(2004). "The corroboration required, though important, is

'quite minimal.'" Commonwealth v. Green, 92 Mass. App. Ct. 325,

327 (2017), quoting Commonwealth v. Villalta-Duarte, 55 Mass.

5 The officer testified that the road in question was "a
state-run highway" and "maintained by Mass DOT." See
Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010).
The defendant's odor of alcohol, glassy eyes, slurred speech,
and performance on the field sobriety tests provided sufficient
evidence of impairment. See Gallagher, 91 Mass. App. Ct. at
392-393.
8

App. Ct. 821, 826 (2002). All that is required is "merely that

'there be some evidence, besides the confession, that the

criminal act was committed by someone, that is that the crime

was real and not imaginary.'" Commonwealth v. Rodriguez, 76

Mass. App. Ct. 59, 63 (2009), quoting Villalta-Duarte, supra at

825. Accord Commonwealth v. Carter, 481 Mass. 352, 361 (2019),

cert. denied, 140 S. Ct. 910 (2020).

Here, there was adequate evidence corroborating the

defendant's statements. The defendant was on the roadside near

the crashed vehicle in the middle of the night. See

Commonwealth v. Proia, 98 Mass. App. Ct. 125, 128 (2020)

(defendant "located outside a nearby tavern" close to accident

site); Commonwealth v. Congdon, 68 Mass. App. Ct. 782, 783

(2007) (defendant was walking toward disabled vehicle from short

distance away). The accident had caused the airbags to inflate,

and the defendant required medical care for a possible

concussion. Finally, there was an "absence of evidence tending

to suggest that someone other than the defendant was operating"

the vehicle. Commonwealth v. Cromwell, 56 Mass. App. Ct. 436,

439 (2002).6 Accord Commonwealth v. Petersen, 67 Mass. App. Ct.

We do not, however, agree with the Commonwealth's
6

contention that Cromwell sets forth the "relevant factors to
determine the sufficiency of operation." Cromwell, 56 Mass.
App. Ct. at 439, merely lists the evidence that supported a
conviction in that case. Although comparing the evidence in any
particular case to the evidence in Cromwell is helpful in
9

49, 52 (2006). In short, there was evidence that the crime of

operating under the influence "was real and not imaginary."

Commonwealth v. Gibson, 489 Mass. 37, 53 (2022), quoting

Commonwealth v. Forde, 392 Mass. 453, 458 (1984).

This case is dissimilar to Commonwealth v. Leonard, 401

Mass. 470 (1988). In that case, the defendant's wife testified

that she was the operator of the vehicle, and "[t]he interior

physical damage to the vehicle corroborated her testimony." Id.

at 472. The Commonwealth's purported corroborating evidence --

that the defendant demanded that the wife give his keys back to

him and that the wife's cigarettes were on the passenger side

floor – failed, as the demand for the keys was ambiguous and the

location of the cigarettes speculative in light of a struggle

between the defendant and his wife. See id. at 473. There was

no accident, and therefore no other proof that negligent or

intoxicated driving was anything but imaginary. See id. at 471.

Accord Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 90

(2021), quoting Forde, 392 Mass. at 458 (rule requires evidence

"that the crime was real and not imaginary"). As the Supreme

Judicial Court recognized in Adams, 421 Mass. at 292, Leonard

determining whether that case is on point or distinguishable,
the evaluation of the sufficiency of the evidence of operation
need not involve an analysis of how close the evidence in any
particular case comes to each of the pieces of evidence found in
Cromwell.
10

has little application where there is no "evidence tending to

suggest that someone other than the defendant was operating" the

vehicle. Accord Commonwealth v. Simon, 57 Mass. App. Ct. 80, 91

(2003) (noting absence in Leonard of "anything at all to

corroborate the admission"). Accordingly, there was sufficient

evidence to support the jury verdict here.

4. Conclusion. The order allowing the motion for a

required finding of not guilty is vacated. The jury's verdict

is reinstated, and the case is remanded to the District Court

for sentencing.

So ordered.