Commonmwealth v. Richard Mwaniki.

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-688

COMMONMWEALTH

vs.

RICHARD MWANIKI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of operating a motor vehicle while under the

influence of alcohol (OUI), in violation of G. L. c. 90,

§ 24 (1) (a) (1), and negligent operation of a motor vehicle

(negligent operation), in violation of G. L. c. 90,

§ 24 (2) (a). On appeal, the defendant argues that (1) there

was insufficient evidence of impairment for OUI; (2) there was

insufficient evidence of negligent operation; (3) the judge

erred by allowing the arresting trooper to testify to his

opinion that the defendant was "bombed"; and (4) the judge's OUI

jury instruction created a substantial risk of miscarriage of

justice. We affirm.

Background. We summarize the evidence in the light most

favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). On May 3, 2019, at around

midnight, a Massachusetts State trooper saw a black Toyota Camry

driving in front of him in the left lane of Route 24 North in

Raynham. The Camry drifted to the left and nearly struck the

guardrail "in like a sideswipe manner" before returning to the

travel lane. The trooper activated his lights and siren and the

Camry pulled over to the right shoulder of the road. The

defendant was the sole occupant of the vehicle. During their

initial interaction, the trooper smelled alcohol and noticed the

defendant's eyes were bloodshot and glassy. The defendant

stated that he was had been at a pub in Bridgewater, where he

had two large beers. The trooper noticed during their

conversation that the defendant's speech was slurred.

The trooper then ordered the defendant out of the vehicle.

The defendant was very unsteady and had to use the car for

balance as he moved to its front. He agreed to perform field

sobriety tests. The defendant failed the nine step walk and

turn test, which involved walking nine steps, pivoting, and

returning nine steps toward the trooper. The defendant was

unable to stand in the instructional position, took the wrong

number of steps, used his arms for balance, did not follow

instructions after the ninth step, and turned improperly. He

also failed the one-leg stand test, which required him to raise

one of his feet six inches off the ground for thirty seconds

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while holding his arms by his sides. The defendant leaned to

the side; put his foot down after four seconds; and, on a second

try, put his foot down after six seconds. The defendant was

arrested and almost fell on the way to the cruiser.

During trial, the trooper testified that he formed an

opinion based on the defendant's appearance, speech, and

performance on the field sobriety tests that the defendant was

"bombed." He elaborated that "bombed" meant "heavily

intoxicated." The defendant did not object to the testimony.

Discussion. 1. Sufficiency of evidence of impairment. We

review the evidence in the light most favorable to the

Commonwealth to determine "whether a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt" (citation omitted). Commonwealth v. Quinones,

95 Mass. App. Ct. 156, 162 (2019). Inferences supporting a

conviction "need only be reasonable and possible" and "need not

be necessary or inescapable" (citation omitted). Id.

The elements of operating under the influence are

(1) operation of a vehicle, (2) on a public way, (3) while under

the influence of intoxicating liquor. G. L. c. 90,

§ 24 (1) (a) (1). See Commonwealth v. AdonSoto, 475 Mass. 497,

509-510 (2016). The defendant challenges only the sufficiency

of evidence that he was under the influence.

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The jury heard testimony that the defendant's vehicle

nearly drove into a guardrail before he displayed some of "the

classic indicia of impairment" -- an odor of alcohol emanating

from him, glassy and bloodshot eyes, and slurred speech.

Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). In addition,

the trooper testified regarding the defendant's admission to

drinking, difficulty keeping his balance, and inability to

perform the field sobriety tests as instructed. Lastly, the

trooper opined that the defendant was "bombed" or heavily

intoxicated. This evidence was sufficient to permit the trier

of fact to find that the defendant's consumption of alcohol

resulted in his diminished capacity to operate the motor vehicle

safely. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385,

392-393 (2017).

2. Sufficiency of evidence of negligence. Operating to

endanger requires proof that the defendant "(1) operated a motor

vehicle (2) upon a public way (3) negligently so that the lives

or safety of the public might be endangered." Commonwealth v.

Ross, 92 Mass. App. Ct. 377, 379 (2017). The defendant contends

that there was insufficient evidence that he operated his

vehicle negligently.

We are not persuaded by the defendant's assertion that the

proof of negligence was deficient because the only evidence the

jury could have found was "one instance of swerving and

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immediately correcting" in light traffic at a late hour. To

satisfy the third element, the Commonwealth must present proof

that the defendant's conduct "might have endangered the safety

of the public, not that it in fact did." Commonwealth v.

Ferreira, 70 Mass. App. Ct. 32, 35 (2007). Here, in addition to

swerving toward and nearly colliding with the guardrail, the

evidence showed, as noted above, that the defendant admitted

that he had consumed two large beers earlier that night, failed

to perform field sobriety tests satisfactorily, and appeared

heavily intoxicated. The defendant's erratic driving coupled

with evidence of his intoxication provided the jury with an

adequate basis to find the defendant guilty of negligent

operation. See Ross, 92 Mass. App. Ct. at 380 (affirming

conviction of negligent operation based on evidence of

intoxication and excessive speeding at night on residential

road); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 254-255

(2006) (affirming conviction of negligent operation based on

evidence of intoxication, meandering back and forth over fog

line, crossing two lanes of traffic, and nearly striking large

road sign). Cf. Commonwealth v. Teixeira, 95 Mass. App. Ct.

367, 367 (2019) (affirming conviction of negligent operation

despite absence of erratic driving where defendant consumed

alcohol and drove substantially below speed limit while holding

cell phone one foot from his face).

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3. Opinion testimony regarding sobriety. The defendant

further argues that the trooper's testimony that, in his

opinion, the defendant was "bombed" should not have been

admitted. He contends that this testimony impermissibly spoke

to the ultimate question whether the defendant was operating

while under the influence of intoxicating liquor. The defendant

did not object to the testimony or request a curative jury

instruction at trial, therefore "[o]ur review is limited to

whether there was error, and if so, whether it created a

substantial risk of a miscarriage of justice." Commonwealth v.

Orben, 53 Mass. App. Ct. 700, 703 (2002).

"[L]ay witnesses, including police officers, may not opine

as to the ultimate question whether the defendant was operating

while under the influence, but they may testify to his apparent

intoxication" (citation omitted). Commonwealth v. Canty, 466

Mass. 535, 541 (2013). "Provided that a witness does not

directly offer an opinion regarding the defendant's guilt or

innocence in a criminal case, we have no rule in Massachusetts

prohibiting an opinion that touches on an ultimate issue"

(citation omitted). Id. at 543.

Here, the trooper testified to the defendant's apparent

intoxication, but did not opine as to the ultimate question of

whether the defendant was operating a motor vehicle while under

the influence of intoxicating liquor. The trooper's use of the

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colloquial term "bombed" to describe the defendant's

intoxication merely represents a lay opinion regarding the level

of the defendant's insobriety. Where the trooper testified to

the specific bases for his opinion, we discern no risk that the

jury inferred any extraevidentiary foundation for it. Moreover,

any such risk was mitigated by the judge's instruction that the

jury's determination of the facts "must not be based on

speculation or conjecture." See Commonwealth v. Johnston, 467

Mass. 674, 692 (2014) (jury presumed to follow judge's

instructions). There was no error in the testimony regarding

the defendant's sobriety and thus no risk that justice was

miscarried by its admission.

4. Jury instructions. Finally, the defendant claims error

in the judge's instructions to the jury on the element of

impairment for the OUI charge. There was no objection to the

instructions, thus our review is for substantial risk of a

miscarriage of justice. AdonSoto, 475 Mass. at 510.

The defendant's arguments all stem from the use of the word

"bombed" by the trooper. Given our conclusion that the

trooper's testimony about the defendant's level of intoxication

was proper, we are not persuaded that any curative instruction

was required. Likewise, where the defendant failed to request

an instruction clarifying the propriety of lay testimony

concerning intoxication, we discern no abuse of discretion in

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the judge's failure to provide one sua sponte. We further note

that any risk of prejudice to the defendant was diminished by

the judge's explicit final instruction to the jury that they

must determine whether the defendant was under the influence of

alcohol, and that they may consider any opinion they heard about

the defendant's sobriety "and accept it or reject it." See

Canty, 466 Mass. at 545. The judge's instructions on impairment

were otherwise comprehensive and clear, and we presume the jury

followed them. See Commonwealth v. Olmande, 84 Mass. App. Ct.

231, 237 (2013).

Judgments affirmed.

By the Court (Hand,
Hershfang & Brennan, JJ.1),

Assistant Clerk

Entered: February 15, 2024.

1 The panelists are listed in order of seniority.

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