Commonwealth v. Christopher R. Toomey.

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-94

COMMONWEALTH

vs.

CHRISTOPHER R. TOOMEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of operating

a motor vehicle while under the influence of intoxicating liquor

(OUI).1 On appeal, he challenges his conviction on several

grounds. We affirm.

Background. After observing the car the defendant was

driving going approximately sixty miles per hour down Main

Street in Dighton,2 the police signalled for the defendant to

pull car over, which he did. They smelled alcohol on the

1 The defendant originally also had been charged with negligent
operation of a motor vehicle and with OUI as a second offense.
The trial judge allowed the defendant's motion for a required
finding of not guilty as to the negligent operation charge. The
Commonwealth was unable to proceed to trial on the subsequent
offense portion of the OUI charge so the judge dismissed it.
The judge found the defendant liable for speeding, but that
finding is not subject to this appeal.
2 The Commonwealth presented no evidence of the speed limit for

that road.
defendant's breath both then, and later after they arrested him.

They also noticed that he had a delayed response to their

questions. Nineteen open "nip" bottles were found inside the

car. Before administering field sobriety tests, the police

asked the defendant "if there's any physical injuries where it

would prevent him from doing any of the tests involved."

According to the arresting officer, the defendant stated that he

suffered from neuropathy. The police went ahead and

administered various field sobriety tests. The defendant

performed satisfactorily on some of the tests. For example, he

was able to recite the alphabet without incident.3 On the nine-

step walk and turn test, the defendant "failed to listen to the

instruction," "missed a few steps in between," "went off the

line," "lost his balance" and "was not able to complete that

test." The officer formed an opinion from his observations that

the defendant was "under the influence of alcohol" and arrested

him. In transporting the defendant back to the station, the

officer smelled alcohol inside his vehicle.

3 The defendant also was able to count backwards from 96,
although he stopped at 80, instead of at 84, as instructed. The
testimony about the defendant's performance on the one leg stand
test was somewhat mixed. The arresting officer testified that
he could not "recall how [the defendant] did with that test,"
but went on to suggest that he "believe[d]" that the defendant
placed his foot down before the allotted time had expired. On
cross-examination, the officer testified that the defendant "was
not able to complete that test," and "[t]hat he swayed to regain
his balance."

2
Discussion. The defendant's principal argument on appeal

is that the evidence that he was under the influence while he

was driving was not sufficient to sustain his conviction. In

assessing the sufficiency of the evidence, we are to view the

Commonwealth's evidence -- including all reasonable inferences

therefrom -- in the light most favorable to the Commonwealth.

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

ultimate question is whether the evidence, viewed in that light,

was sufficient to persuade any rational fact finder that the

essential elements of the crimes charged had been established

beyond a reasonable doubt. Id at 677-78.

The Commonwealth's evidence of intoxication here easily

meets that standard. As noted, the arresting officer smelled

alcohol on the defendant, he noticed the defendant's delayed

reactions to questions, he (or another officer) found nineteen

open nip bottles in the car, the defendant performed poorly on

some of the field sobriety tests, the defendant was driving

sixty miles per hour on Main Street in Dighton, and the officer

formed an opinion that the defendant was intoxicated. Such

evidence is of the type and quantity that repeatedly has been

found sufficient. See, e.g., Commonwealth v. Gallagher, 91

Mass. App. Ct. 385, 392-393 (2017), and cases cited.

In arguing to the contrary, the defendant offers

alternative explanations for the incriminating evidence against

3
him. For example, he suggests that his poor performance on the

nine-step walk and turn test may have been caused by neuropathy,

not by his being intoxicated. The jury were not required to

credit that explanation, however. That is particularly true

where there was no evidence before the jury about how neuropathy

might affect someone's performance on field sobriety tests.4 But

even if such evidence had been presented, it still would have

been up to the jury to consider its weight; the mere presence of

such countervailing evidence would not have negated the

Commonwealth's evidence. See Commonwealth v. Schutte, 52 Mass.

App. Ct. 796, 800-801 (2005) (although evidence that defendant

suffered from "chronic imbalance" should have been admitted,

this would not have justified exclusion of evidence of

defendant's performance on field sobriety tests).

To the extent that the defendant suggests that we should

not consider certain evidence on the ground that it was

improperly admitted, we note that the sufficiency of the

4 The defendant was prepared to call an expert on this issue and
to offer the defendant's medical records, which memorialized his
having neuropathy. This would have been a risky strategy,
however, because the medical records indicate that the
neuropathy may be caused by the defendant's chronic alcoholism.
Through motions in limine, the defendant sought to redact
mention of his alcohol abuse from the medical records and to
limit cross-examination of the expert on this topic. After the
judge rebuffed such efforts, the defendant understandably chose
not to introduce such evidence. The defendant claims no error
in the denial of his motions in limine.

4
evidence "is to be measured upon that which was admitted in

evidence without regard to the propriety of the admission."

Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting

Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).

Moreover, the defendant has not demonstrated that the judge

abused his discretion in admitting any evidence, much less shown

that any error caused a substantial risk of a miscarriage of

justice.5

To the extent that the defendant makes additional

arguments, we discern no merit in them.6

Judgment affirmed.

By the Court (Milkey, Henry &
Desmond, JJ.7),

Assistant Clerk

Entered: March 19, 2024.

5 The defendant lodged no relevant objections at trial, and our
review therefore is limited to whether any evidentiary errors
caused a substantial risk of a miscarriage of justice. See
Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010).
6 In his reply brief, the defendant argues that the Commonwealth

failed to respond to some of his appellate arguments and thereby
conceded the issues. As the appellee, however, the Commonwealth
had no obligation even to file a brief. Indeed, an appellate
court we can affirm a criminal conviction on any ground fairly
raised by the record. See Commonwealth v. Nordstrom, 100 Mass.
App. Ct. 493, 501 n.9 (2021).
7 The panelists are listed in order of seniority.

5