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18-P-658 Appeals Court
COMMONWEALTH vs. ISMAEL D. TEIXEIRA.
No. 18-P-658.
Plymouth. April 2, 2019. - May 24, 2019.
Present: Rubin, Henry, & Wendlandt, JJ.
Motor Vehicle, Operating to endanger. Alcoholic Liquors, Motor
vehicle. Practice, Criminal, Required finding.
Complaint received and sworn to in the Brockton Division of
the District Court Department on August 21, 2017.
The case was tried before Michael A. Vitali, J.
Jason C. Howard for the defendant.
Danny F. Soto, Assistant District Attorney, for the
Commonwealth.
HENRY, J. The facts in this case differ from those in many
of our cases concerning convictions of negligent operation of a
motor vehicle under G. L. c. 90, § 24 (2) (a), because here the
defendant's car did not drift, weave, or swerve; the defendant
did not drive at an excessive speed, and there was no accident.
However, the defendant, after having consumed alcohol, was
2
driving well below the posted speed limit while holding a cell
phone approximately one foot from his face, and while showing
some signs of intoxication when stopped by a State trooper.
These facts are sufficient to prove that the defendant operated
his vehicle negligently "so that the lives or safety of the
public might be endangered." G. L. c. 90, § 24 (2) (a). We
affirm.
Background. On August 19, 2017, State Trooper Gregory
Furtado observed the defendant driving between five and ten
miles per hour in an area with a posted speed limit of thirty
miles per hour. The defendant was manipulating a cell phone one
foot away from his face and appeared to be reading something on
the screen. Trooper Furtado "ran the license plate" and learned
"there was no inspection results on the vehicle." Trooper
Furtado followed the defendant for approximately one block.
During this time, the defendant turned left onto a residential
street. Trooper Furtado then activated his emergency lights to
initiate a motor vehicle stop. The defendant immediately
reduced his speed and safely brought his car to a complete stop.
In the time the trooper observed the defendant operating a motor
vehicle, the defendant did not weave, drift, or swerve; he did
not strike any curb or another vehicle. There was nothing out
of the ordinary in how the defendant made the left turn.
3
Upon approaching the car, Trooper Furtado observed the
defendant's cell phone on the defendant's lap with the "GPS"1
function open. The defendant explained that he was using the
cell phone's GPS to find his friend's house.2 Trooper Furtado
detected the smell of alcohol coming from inside the car and
noted that the defendant's eyes were bloodshot and his speech
was slurred. After requesting the defendant's license and
registration, Trooper Furtado observed the defendant fumble with
his wallet and pass over his license several times.
The defendant admitted to having consumed two beers that
evening and agreed to perform field sobriety tests. When
exiting the vehicle, defendant was unbalanced and swayed back
and forth. When performing the one-leg stand, the defendant did
not keep his foot six inches above the ground as instructed and
placed his foot on the ground after eight and then eleven
seconds, rather than after thirty seconds as instructed. On the
nine-step walk and turn, the defendant had difficulty following
instructions, did not touch his heel to his toe on some steps,
stepped on his own toes, and took ten steps instead of nine.
1 The term "GPS" was never defined. We assume it means
global positioning system.
2 Throughout his communication with Trooper Furtado, the
defendant provided a total of four contradictory answers as to
where he was going: (1) to his friend's house; (2) to pick up
his brother; (3) to his girlfriend's house; and (4) to his
house.
4
The defendant was tried by a jury on a complaint charging
him with (1) operating a motor vehicle while under the influence
of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a) (1), and
(2) negligent operation of a motor vehicle. The jury acquitted
the defendant of OUI and convicted him of negligent operation.3
On appeal the defendant challenges the sufficiency of the
evidence supporting that conviction.
Discussion. 1. Standard of review. At the close of the
Commonwealth's case, the defendant moved for required findings
of not guilty, which the judge denied. When reviewing the
denial of a motion for a required finding of not guilty, we must
determine "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt" (quotation omitted). Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979). "The inferences that
support a conviction 'need only be reasonable and possible;
[they] need not be necessary or inescapable.'" Commonwealth v.
Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth
v. Woods, 466 Mass. 707, 713 (2014).
3 Following the jury verdict, the judge found the defendant
not responsible for two civil infractions, including sending an
electronic message while operating a motor vehicle, in violation
of G. L. c. 90, § 13B, and failing to have a valid motor vehicle
inspection sticker, in violation of G. L. c. 90, § 20.
5
2. Sufficiency of the evidence. To sustain a conviction
of negligent operation, the Commonwealth must prove that the
defendant (1) operated a motor vehicle, (2) on a public way, and
(3) negligently, so that the lives or safety of the public might
be endangered. See G. L. c. 90, § 24 (2) (a). Only the third
element is at issue in this appeal. The statute requires proof
that the defendant's conduct might have endangered the safety of
the public, not that it, in fact, did. See Commonwealth v.
Duffy, 62 Mass. App. Ct. 921, 923 (2004). "Negligence in this
context is determined by the same standard that is employed in
tort law." Id. at 922 n.2.
This case, unlike many negligent operation cases, does not
involve evidence of a collision, a near collision, a swerve, a
departure from marked lanes, or any erratic movement of the
motor vehicle other than speed significantly lower than the
speed limit. See, e.g., Commonwealth v. Charland, 338 Mass.
742, 743-744 (1959) (affirming negligent operation conviction
after head-on collision while defendant was traveling wrong way
on rotary traffic circle); Commonwealth v. Ferreira, 70 Mass.
App. Ct. 32, 33-35 (2007) (operating to endanger where, despite
no pedestrians nearby, defendant accelerated in manner that
caused tires to spin, car to "fishtail," and "screeching
noise"); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256
(2006) (affirming negligent operation conviction where erratic
6
swerving while intoxicated such that defendant "nearly struck a
large road sign"). Likewise, negligence per se does not apply
here; a civil infraction alone is not sufficient to constitute
negligent operation. See Duffy, 62 Mass. App. Ct. at 922
(evidence of speeding alone insufficient to support negligent
operation conviction).
On the other hand, this court has sustained a conviction in
the absence of a collision or near collision. In Commonwealth
v. Ross, 92 Mass. App. Ct. 377, 377 (2017), this court held that
evidence of the defendant's excessive speed at night on a narrow
residential road -- after he had consumed alcohol -- was
sufficient to prove that the defendant operated negligently so
as to endanger the public.
In this case, after having consumed alcohol, the defendant
was driving twenty to twenty-five miles per hour below the
posted speed limit with his cell phone held one foot in front of
his face.4 See Ross, 92 Mass. App. Ct. at 380 ("The fact that
4 General Laws c. 90, § 13B, prohibits an operator of a
motor vehicle from "us[ing] a mobile telephone, or any handheld
device capable of accessing the internet, to manually compose,
send or read an electronic message while operating a motor
vehicle" unless "the vehicle is stationary and not located in a
part of the public way intended for travel." In its brief, the
Commonwealth refers to a violation of G. L. c. 90, § 13B, as a
crime; it is a civil infraction. Section 1 of G. L. c. 90
defines "[e]lectronic message" as "a piece of digital
communication that is designed or intended to be transmitted
between a mobile electronic device and any other electronic
device; provided, however, that electronic message shall
7
the jury ultimately did not convict the defendant of OUI does
not preclude their consideration of the evidence of intoxication
in considering the negligent operation charge"). A defendant's
driving need not have been erratic to support a conviction of
negligent operation, so long as the conduct, taken as a whole,
might have endangered the lives and safety of the public. See
Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015) ("The
question is whether the defendant's driving had the potential to
cause danger to the public, not whether it actually did"). Even
without any evidence of erratic driving, a reasonable jury could
conclude that the defendant drove negligently so as to put the
lives or safety of the public in danger when he had consumed
alcohol and drove substantially below the speed limit while
holding a cell phone one foot from his face.
Judgment affirmed.
include, but not be limited to, electronic mail, electronic
message, a text message, an instant message, a command or
request to access an internet site, or any message that includes
a keystroke entry sent between mobile devices." Accordingly,
§ 13B does not prohibit passive cell phone Internet use, such as
the use of GPS.
In this case, distraction can be inferred from the
defendant's holding his cell phone so close to his face. The
trooper also testified, without objection, that based on the
position of the cell phone in relationship to the defendant's
face, the cell phone "was definitely a distraction."