Commonwealth v. Julio M. Medina.

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-478

COMMONWEALTH

vs.

JULIO M. MEDINA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction of operating

under the influence (OUI) of intoxicating liquor in violation of

G. L. c. 90, § 24 (1) (a) (1). The jury could have found the

following facts, all contained in the testimony of State Trooper

Ryan Durkin, the only witness called during the defendant's

trial. Trooper Durkin responded to a single vehicle crash on

the southbound side of Interstate Route 93. The trooper,

driving northbound on 93, passed the crash with his lights and

sirens on, before turning around and approaching the vehicle on

the southbound side of the road. The vehicle was pinned against

the breakdown lane guardrail facing the opposite direction of

traffic. Because it was pinned against the guardrail, the
driver's side door could not be opened. The trooper observed

that there were two people in the car: one, the defendant, was

sitting in the rear seat on the driver's side, and the other,

the registered owner of the car, was sitting in the front

passenger's seat.

The trooper observed that the defendant's seatbelt was

buckled incorrectly, such that it reached all the way across the

middle seat to the buckle for the seat on the other side of the

car. When the trooper pointed this out to the defendant, he

began to cry.1 The defendant told the trooper that "he wasn't

driving," but rather that the vehicle owner had been driving.

The trooper formed the opinion that the defendant had been

operating the car because he believed that the vehicle owner was

too intoxicated to switch seats.

In his appeal, the defendant argues that the trial judge

erred in denying his motions for a required finding of not

guilty, as he claims the evidence was legally insufficient to

The trooper also noticed that there were fresh footprints
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on the back of the driver's seat, which he testified were
consistent with the defendant's shoes. That said, the trooper
did not notice dirt anywhere else in the car, including on the
floor of the driver's seat area, and he did not testify about
whether the vehicle owner's shoes were also consistent with the
footprints. We do not rely on this evidence about footprints on
the back of the driver's seat, and therefore need not address
any issues concerning the inferences it may or may not properly
support.

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prove an essential element of the offense. He also argues that

the judge erred in allowing the State trooper to testify as to

his opinion of whether the defendant was operating the vehicle

at the time of the accident. We affirm.

1. Sufficiency of the evidence. The defendant filed three

motions arguing that the evidence presented by the Commonwealth

was insufficient to prove beyond a reasonable doubt that he, and

not the other person in the car, was operating the vehicle at

the time of the accident: one motion for required finding of not

guilty, and two renewed motions for required finding of not

guilty, one on the day of the verdict, and, subsequently,

another motion. The judge denied all three of these motions,

and allowed a motion for late filing of the notice of appeal,

which brings the judgment and the rulings on these motions

before us.

On appeal, the defendant argues that the judge erred in

denying these motions. In reviewing a sufficiency claim, we

must view the evidence in the light most favorable to the

Commonwealth and consider whether any rational trier of fact

could have found the essential elements of the offense beyond a

reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979). We conclude that the jury could have found all of

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the elements of the OUI offense, and therefore that the judge

did not err in denying the defendant's motions.

The offense of operating under the influence of

intoxicating liquor has three elements: "(1) operation of a

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

alcohol." Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995).

These elements may be proved by direct evidence or by inference

from circumstantial evidence. Commonwealth v. Beltrandi, 89

Mass. App. Ct. 196, 199-200 (2016). The only element at issue

in this appeal is the first element, regarding whether the

defendant was operating the vehicle.2

Although, as the defendant notes, the trooper did not

testify to any statements by the vehicle owner or whether he

conducted field sobriety tests with him as well, a rational

juror could have found, based on the evidence detailed above,

that the defendant was operating the vehicle at the time of the

accident. Of particular note are the facts that the defendant's

seatbelt was buckled incorrectly, which could support an

2 The defendant does not dispute that there was sufficient
evidence that the car was being operated on a public way and
that the defendant was under the influence of alcohol. The
State trooper testified that the single vehicle crash was on
Route 93. He also testified that the defendant had bloodshot
eyes and slurred speech, admitted to drinking earlier in the
evening, and struggled to complete field sobriety tests.

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inference that it was buckled quickly (and thus incorrectly)

after the accident rather than before the journey began, that he

cried when the trooper pointed this out to him, and that the

officer concluded that the owner of the vehicle was too

inebriated to have moved into the passenger seat after the

crash. These facts distinguish this case from those cited by

the defendant in which our courts have found insufficient

evidence as to who was driving. As there was also sufficient

evidence of the other elements of OUI, the judge did not err in

denying the defendant's motions.

2. Trooper's opinion testimony. Prior to trial, the

defendant filed a motion in limine requesting that the trooper

not be permitted to testify as to his opinion regarding who was

operating the vehicle at the time of the accident, as he had not

seen anyone driving the vehicle. The judge denied this motion.

At trial, the prosecutor asked, "how did you come to the

determination that it was the defendant, and not the person in

the front passenger seat, that was the operator?" The trooper

responded,

"Just in my opinion, again, that it appeared to me that he
had crawled back and attempted to seat buckle himself back
in to make it look like he had been sitting in the rear
passenger seat, and during this process his footprint, upon
crawling back, somehow got onto the back of the driver's
seat."

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The defendant argues that the judge's denial of his motion was

error, as the trooper's opinion as to who was operating the

vehicle was equivalent to an opinion on the ultimate issue of

the defendant's guilt. We disagree.

Although the defendant did not object to the trooper's

testimony at trial, he had previously filed and argued a motion

in limine on the issue. In Commonwealth v. Grady, 474 Mass.

715, 719 (2016), the Supreme Judicial Court stated, "[w]e will

no longer require a defendant to object to the admission of

evidence at trial where he or she has already sought to preclude

the very same evidence at the motion in limine stage, and the

motion was heard and denied." As the subject of the motion in

limine was the same as what was objectionable at trial, see id.,

the defendant preserved his objection to the trooper's opinion

testimony.

It is true that "[n]o witness, including a police witness,

may testify as to a defendant's guilt or innocence."

Commonwealth v. Hamilton, 459 Mass. 422, 439 (2011). However,

in Commonwealth v. Canty, 466 Mass. 535, 544 (2013), the Supreme

Judicial Court held that in an OUI case, a lay witness was

permitted to opine as to whether the defendant was intoxicated,

but was not permitted to opine as to "whether a defendant

operated a motor vehicle while under the influence of alcohol or

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whether the defendant's consumption of alcohol diminished his

ability to operate a motor vehicle safely." Here, the witness

testified as to his opinion regarding an element of the offense,

but not as to his opinion regarding all elements at once. The

latter would have been an opinion as to the ultimate issue of

the defendant's guilt or innocence.3 This was not.

Consequently, we see no error in the judge's ruling.4

At another point during the trial, the trooper did testify

as to his opinion that the defendant was "operating a motor

vehicle under the influence of alcohol." The judge sua sponte

correctly instructed the jury that the trooper could "render an

opinion as to whether [the defendant was] under the influence of

alcohol, but whether it impaired his ability to operate a motor

vehicle safely[,] that is . . . your decision to make." To the

extent, if any, the defendant challenges this testimony (to

which there was no objection), there was no substantial risk of

a miscarriage of justice. This case is similar to Canty, as, in

that case, the court found that the erroneous opinion testimony

was not prejudicial because the judge had instructed the jury

3 The defendant has not argued that, if the opinion
testimony is not about guilt, that it is in any event improper
lay testimony, and we express no opinion on the question.

4 We do not read the dictum in Commonwealth v. Boothby, 64
Mass. App. Ct. 582, 583 n.2 (2005), to take precedence over the
subsequent Supreme Judicial Court decision in Canty.

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"that they ultimately 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.'" Canty, 466 Mass. at 545.

Judgment affirmed.

By the Court (Rubin,
Ditkoff & Grant, JJ.5),

Clerk

Entered: August 23, 2024.

5 The panelists are listed in order of seniority.

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