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13-P-1978 Appeals Court
COMMONWEALTH vs. KENNETH I. NORMAN.
No. 13-P-1978.
Worcester. January 8, 2015. - May 8, 2015.
Present: Grainger, Brown, & Milkey, JJ.
Motor Vehicle, Operating under the influence, License to
operate. License. Notice. Registrar of Motor Vehicles,
Records. Practice, Criminal, Required finding.
Indictments found and returned in the Superior Court
Department on November 14, 2012.
The cases were tried before David Ricciardone, J.
Nelson P. Lovins for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
MILKEY, J. Following jury and jury-waived trials in
Superior Court, the defendant was convicted of operating under
the influence of intoxicating liquor (OUI) while under a license
2
suspension for a prior OUI. 1 G. L. c. 90, § 23. On appeal, the
defendant argues primarily that the evidence was insufficient to
support that conviction. He makes no challenge to the
sufficiency of the evidence that he committed an OUI, that at
the time he did so his license was suspended, and that the
suspension at issue was for a prior OUI. Instead, he targets
the sufficiency only of the evidence that he was notified of the
suspension. See Commonwealth v. Oyewole, 470 Mass. 1015, 1016
(2014) (to make out a violation of G. L. c. 90, § 23, the
Commonwealth must prove, inter alia, that the defendant "was
notified that his license had been suspended or revoked"). We
conclude that the evidence was sufficient and therefore affirm
the convictions.
Background. Given the limited nature of the defendant’s
appeal, we lay out only the evidence related to whether the
defendant had notice of his license suspension. The longtime
branch manager of the Worcester office of the Registry of Motor
Vehicles (RMV) testified that the RMV had a system in place to
provide drivers formal notice that their licenses had been
suspended. Under that system, once an OUI conviction is entered
1
The defendant was also convicted of OUI, fifth or
subsequent offense. G. L. c. 90, § 24(1)(a)(1). As discussed
infra at note 6, he initially challenged that conviction but has
since abandoned that claim. He has not challenged his
additional conviction of operating negligently so as to
endanger. G. L. c. 90, § 24(2)(a).
3
into the relevant database, a suspension notice is automatically
generated, and employees in the RMV mailroom then place the
notice in an envelope and deliver it to the post office for
mailing. The branch manager also produced from RMV files a
"notice of suspension" letter (suspension notice) dated November
8, 2001. That suspension notice, which was addressed to the
defendant at a mailing address on file with the RMV, stated that
the defendant's license was being suspended for a ten-year
period beginning October 15, 2004.
When the defendant was stopped by police in 2012 for his
new OUI violation, he admitted to them that he did not have a
license (while providing them his license number). 2
Discussion. The defendant bases his insufficiency argument
primarily on Commonwealth v. Oyewole, supra. We proceed to
review that case in some detail.
2
In that same conversation, the defendant initially told
police that he did have a license. However, for purposes of
assessing sufficiency, we view the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). The jury were entitled to accept
the defendant's conversation with police as an admission that he
knew he did not have a license. See Meyer v. Wagner, 57 Mass.
App. Ct. 494, 505 (2003) ("It is the job of the jury . . . to
weigh conflicting evidence and to draw reasonable inferences . .
."). There is no merit to the defendant's claim that the jury
could not make such a finding on the theory that there were two
equally plausible competing inferences that could be drawn from
testimony. See Commonwealth v. O'Brien, 305 Mass. 393, 400
(1940).
4
When the driver in Oyewole was stopped by the police, he
"had his license in his possession and gave it to the police
officer." Id. at 1017. Noting that drivers who have their
licenses suspended are legally required to surrender them to the
probation department and that the defendant in that case
apparently did not surrender his license, the court observed
that "[a] possible reason for this is that nobody notified the
defendant that his license was suspended." Ibid. Against this
backdrop, the Commonwealth tried to prove that the driver had
been notified of his license suspension based solely on a court
docket entry from an earlier plea hearing that noted that his
license was being suspended. Id. at 1016. The court held that
this evidence, by itself, was insufficient to prove beyond a
reasonable doubt that the driver had received notice of the
suspension. It also commented, in dicta, that the proof would
have remained insufficient even if the assumption were made that
"the regular practice [of court officials] when accepting a
plea" was to provide a defendant notice that his license was
being suspended as a result of the plea. Ibid. In the words of
the court, "the Commonwealth may not rely on a presumption of
regularity as a substitute for evidence proving an element of
its case beyond a reasonable doubt." Ibid.
The factual setting of the case before us is markedly
different from that of Oyewole. Most important, as noted, the
5
defendant here admitted to police that he lacked a license
(while informing police what his license number was). We need
not decide whether that admission alone provided sufficient
proof that he had been notified that his license had been
suspended, because of the other evidence that the Commonwealth
produced. 3 To be sure, the fact that a suspension notice existed
in RMV files does not by itself prove that it was mailed to the
defendant. 4 The defendant argues that the Commonwealth cannot
prove that it mailed this particular suspension notice by
providing testimony about the system that the RMV had in place
3
The defendant separately argues that the judge erred in
admitting the suspension notice in evidence. Although the
Commonwealth introduced the suspension notice through the
testimony of the RMV branch manager, the transcript appears to
reveal that the copy of the document was accompanied by a
certification/attestation in accordance with G. L. c. 233, § 76,
that the RMV provided as to the document's authenticity.
Moreover, after conducting a voir dire to assess the branch
manager's knowledge, authority, and role at the RMV with regard
to records, the judge concluded that "in her position as branch
manager of the Worcester [RMV, the witness] is competent to
testify as to the authenticity of [RMV] documentation, such as
the certification of suspension and the other documents that
pertain to [the defendant]." The defendant has not shown that
the judge abused his discretion in admitting the document.
4
The Commonwealth need not prove that the defendant in fact
received that notice; proof that the RMV properly mailed it is
sufficient. See Commonwealth v. Koney, 421 Mass. 295, 303-304
(1995). In addition, the Commonwealth need not prove that
during the period in which the notice would have been delivered,
the defendant was in fact using the mailing address on file with
the RMV. Commonwealth v. Lora, 43 Mass. App. Ct. 136, 144
(1997) (RMV entitled to rely on the accuracy of the address
provided to it).
6
for generating and mailing such notices. According to him, that
testimony amounts to the type of "regular practice" evidence
deemed insufficient in Oyewole. Instead, the defendant
contends, the Commonwealth at a minimum had to supply specific
proof that the 2001 letter was in fact placed in the mail. 5
The Oyewole court was not presented with the question
whether the Commonwealth could prove that a particular
suspension notice in fact had been mailed by relying on
testimony regarding the RMV's general notification practices.
Moreover, at least some argument can be made that there is a
material difference between evidence that the RMV has in place
an administrative system for the mailing of suspension notices
that were specifically generated for that purpose and the type
of "regular practice" evidence deemed insufficient in Oyewole.
In the end, we need not resolve whether the evidence
regarding the RMV's mailing practices would have been sufficient
on its own, because of the totality of the evidence on notice.
As Justice Holmes observed long ago, "[e]vidence which would be
colorless if it stood alone may get a new complexion from other
facts which are proved, and in turn may corroborate the
5
The defendant separately attacks the testimony about RMV's
mailing practices on two other grounds. First, he argues the
witness's testimony about the details of that system was too
thin to be of consequence. Second, he argues that the witness's
testimony about the agency's mailing system was all phrased in
the present tense instead of documenting what system was in
place in 2001 when the notice would have been sent.
7
conclusion which would be drawn from the other
facts." Commonwealth v. Mulrey, 170 Mass. 103, 110 (1898).
Here, the defendant admitted that he lacked a license, there was
a suspension notice addressed to him produced from RMV's files,
and there was some testimony regarding the RMV's systematic
mailing practices. We conclude that, taken together, this
evidence provided a sufficient basis for a reasonable fact
finder to conclude, beyond a reasonable doubt, that the
defendant had been notified that his license had been suspended. 6
Judgments affirmed.
6
As noted, the defendant was also convicted of OUI, fifth
or subsequent offense. G. L. c. 90, § 24(1)(a)(1). In his
brief, he argued that the judge erred in admitting a certified
copy of his RMV records to prove his prior convictions without a
live witness. He has since abandoned that claim in light of the
case law. See, e.g., Commonwealth v. Ellis, 79 Mass. App. Ct.
330, 335 (2011). To the extent that a single sentence in the
defendant's brief suggested (without citation) that the
Commonwealth had to prove that he was represented by counsel in
each of the prior convictions, that contention does not rise to
appellate argument that we need consider. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).