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18-P-1499 Appeals Court
COMMONWEALTH vs. KOSTANTINOS TSONIS.
No. 18-P-1499.
Barnstable. June 7, 2019. - October 8, 2019.
Present: Hanlon, Ditkoff, & McDonough, JJ.
Motor Vehicle, Operating under the influence, Operating to
endanger. Way, Public: what constitutes. Practice,
Criminal, Required finding.
Complaint received and sworn to in the Falmouth Division of
the District Court Department on August 3, 2017.
The case was heard by J. Thomas Kirkman, J.
James R. McMahon, III, for the defendant.
Laura Marshard, Assistant District Attorney, for the
Commonwealth.
DITKOFF, J. The defendant, Konstantinos Tsonis, appeals
after a jury-waived trial from his District Court convictions of
operating under the influence of intoxicating liquor, G. L.
c. 90, § 24 (1) (a) (1), and negligent operation of a motor
vehicle, G. L. c. 90, § 24 (2) (a). We conclude that a parking
2
lot that members of the public may use to visit a restaurant,
bar, shop, and beach, all open to the public, is a public way or
place. Further concluding that evidence of the defendant's
physical characteristics, belligerent behavior, and erratic
driving was sufficient to show the defendant's impairment and
negligent operation, we affirm.
1. Background. a. The resort. The Sea Crest Beach Hotel
is a resort in North Falmouth consisting of nine buildings,
including a hotel, a restaurant, a bar, a retail shop, and a
public beach. The restaurant, bar, shop, and beach are open to
the public.
The resort has one entrance and one exit and is accessible
only by Quaker Road, a public way. To access the parking lot,
drivers must pass by a gatehouse with a sign that says, "GUEST
CHECK IN." Those not checking into the hotel are routinely
permitted to drive by the gatehouse without stopping and park in
the parking lot. The gatehouse has an attendant primarily on
the weekends and only during the day.
Occasionally, when the resort is busy, parking is
restricted to hotel guests and beach club members.1 At these
times, the hotel puts out a sign reading, "Parking For
1 Hotel guests are given window tags to demonstrate their
right to park at all times. Restaurant and bar patrons are not
given window tags.
3
Registered Hotel Guests and Beach Club Members Only." This
sign, however, is never left out at night. "The only time [the
resort] ha[s] a parking issue is during daylight hours when
people want to go to the beach."
b. The incident. On August 3, 2017, in the early hours of
the morning, an employee of the resort saw a truck slowly moving
in the resort parking lot. The employee, who was in charge of
managing the parking lot, approached the truck and asked the
driver, through the open driver's side window, if he needed
assistance. The employee observed that the defendant, the
driver of the truck, did not respond but had a glazed look on
his face and appeared aggressive. The defendant then drove
away, driving over a curb. The employee was concerned that the
truck was disturbing guests because it was extremely noisy and
appeared to be shining its high beam lights into one of the
hotel buildings where guests were staying. The employee also
expressed concern for the safety of the guests.
The defendant continued to drive around the parking lot at
a very slow speed. The employee attempted to speak to the
defendant again. This time, the defendant stopped the truck,
threw open the door to the truck, and "lunged" towards the
employee with "clenched fists," screaming and making incoherent
threats. The employee retreated to the hotel lobby and called
the police. The employee observed that the defendant continued
4
to drive around the parking lot while he was inside the building
calling the police.
When a police officer arrived, the defendant was still
driving around the parking lot. The defendant drove over marked
parking spots and nearly struck parked vehicles. The officer
turned on his emergency blue lights to stop the vehicle. When
the officer approached the driver's side of the car on foot, the
defendant, through the open driver's side window, said,
"Really?" When the officer requested the defendant's license
and registration and asked what the defendant was doing there,
the defendant continued to repeat, "Really? Really?"
When the officer asked the defendant to step out of the
vehicle, the officer noticed that the defendant had difficulty
doing so. The defendant appeared to be unsteady on his feet and
struggled to maintain his balance once he was out of the truck.
The officer observed that he was swaying back and forth while
speaking. The officer smelled an odor of alcohol emanating from
the defendant and noticed that his eyes were glassy and
bloodshot. The defendant denied having consumed alcohol that
night. When the officer asked the defendant questions, such as
"[W]here are you coming from?" and "[W]hat are you doing here?"
the defendant continued to repeat, "Really?" The defendant told
the officer that he was not a guest at the hotel but did not
5
explain why he was there. The officer observed that the
defendant's speech was slurred.
The officer arrested the defendant and placed him in his
cruiser. The officer transported the defendant to the Falmouth
Police station and helped the defendant out of the cruiser,
observing that the defendant was struggling to get out of the
vehicle. Once the defendant was in the booking room, the
transporting officer held onto him, and he leaned on the officer
for balance. During booking, the defendant stated that he
believed that he was at the Bourne Police station, where he said
his sister worked. The defendant continued to sway back and
forth and lean on the officer for balance throughout the booking
process.
After a jury-waived trial, a District Court judge convicted
the defendant of operating under the influence of intoxicating
liquor and of negligent operation. This appeal followed.
2. Standard of review. "[W]e consider the evidence
introduced at trial in the light most favorable to the
Commonwealth, and determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547
(2017). "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,
6
303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713
(2014).
3. Sufficiency of public way or place evidence. To prove
either the crime of operating under the influence or negligent
operation, the Commonwealth must prove that the defendant
operated a motor vehicle upon a public way or place. See
Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017);
Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 832 (2010). A
public way or place is defined as "any way or . . . any place to
which the public has a right of access, or . . . any place to
which members of the public have access as invitees or
licensees." G. L. c. 90, § 24 (1) (a) (1). G. L. c. 90,
§ (24) (2) (a).2 We have repeatedly held that "[w]hether a
particular way is accessible to the public as invitees or
licensees, within the meaning of the statute, is a legal
conclusion, which we consider independently." Commonwealth v.
Virgilio, 79 Mass. App. Ct. 570, 573 (2011). Accord
Commonwealth v. Stoddard, 74 Mass. App. Ct. 179, 182 (2009);
Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549 (1996). Of
course, it is for the trier of fact to determine the facts, but
it is our role to determine whether the facts, viewed in the
light most favorable to the Commonwealth, sufficiently support a
2 Although this element is usually referred to as "public
way," a "public place" also suffices under the statute.
7
finding that the defendant was operating a vehicle on a way or
place accessible to the public as invitees or licenses. See
Commonwealth v. Brown, 51 Mass. App. Ct. 702, 709 (2001) (Brown)
("Whether the Commonwealth has proved, beyond a reasonable
doubt, that the defendant's impaired operation occurred on a
[public way or place] . . . constitutes a legal conclusion
rather than a factual finding").
Here, the facts viewed in the light most favorable to the
Commonwealth established a public place, because members of the
public were permitted to access the parking lot. The evidence
established that members of the public who were not staying at
the hotel were permitted to use the parking lot to visit the
restaurant, bar, shop, or beach. At the time of the incident,
the restaurant and bar were opened to the public. Cf.
Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007)
(defendant convicted of negligent operation for driving in
shopping center parking lot).
The existence of a gatehouse does not negate the public
nature of the parking lot. The gatehouse was unattended at the
time of the incident, but even an attended gatehouse would not
make a parking lot nonpublic where, as here, members of the
public are routinely permitted to drive by the gatehouse and
park in the parking lot.
8
At the time of the incident, the signs restricting parking
to hotel guests and beach club members were not on display. At
night, the availability of parking was not an issue and thus
there were no restrictions. In any event, the defendant's focus
on parking is misplaced. A public place is not a place the
public is allowed to park, but rather a place that the public is
allowed to travel. So long as the public is allowed to access
the place, even merely to drop off a passenger, it is a public
place.
We are guided by Brown. There, we determined that the
roadways through the grounds of an air force base located on the
Massachusetts Military Reservation were public ways because "a
considerable number of persons [were] authorized to, and
routinely [did]," travel on the roadways. Brown, 51 Mass. App.
Ct. at 712. Such travelers included military personnel and
their families, visitors to a national cemetery located on the
property, attendees and staff of a public school located on the
reservation, and those using a little league field located
there. See id. at 707, 711. Indeed, in Brown, the unattended
gatehouses at the entrance to the air force base had signs
indicating that the area was restricted to "authorized personnel
only." Id. at 709. We determined that the roads in the air
force base remained public ways because a considerable number of
persons were authorized to travel on the roads. See id. at 712.
9
Contrast Commonwealth v. Callahan, 405 Mass. 200, 204 (1989)
(area not public way because no member of public had permission
to use property and had access to property only as trespasser).
As in Brown, the parking lot of the Sea Crest Hotel was
similarly accessible to members of the public wishing to use the
parking lot to visit the restaurant, bar, shop, or beach. No
restrictive signage indicated that the property was closed to
the public at the time of the incident. Moreover, the signs
placed during the day on busy weekends restricted only parking,
not access. Accordingly, the trial judge heard sufficient
evidence to reasonably conclude that the parking lot in which
the defendant drove was a public place.
4. Sufficiency of impairment evidence. "[T]he phrase
'under the influence' refers to impairment, to any degree, of an
individual's ability to safely perform the activity in
question." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477,
479 (2016). Here, viewing the evidence in the light most
favorable to the Commonwealth, there was sufficient evidence to
prove that the defendant was under the influence of alcohol
while driving. The defendant exhibited physical signs of
intoxication and behaved erratically. The employee observed the
defendant's driving slowly around the parking lot in a
suspicious manner. When the employee confronted the defendant,
he observed that the defendant had a glazed look on his face and
10
appeared aggressive. The defendant lunged towards the employee
with clenched fists, screaming and making incoherent threats.
See Commonwealth v. Jewett, 471 Mass. 624, 636 (2015)
(defendant's belligerent behavior such as fighting with police
officer was evidence of intoxication).
When a police officer arrived, he observed the defendant
driving around the parking lot, over marked parking rows, and
nearly striking a couple of parked vehicles. The defendant was
unresponsive to the police officer's questions and "kept
repeating, 'Really? Really?'" The officer observed that the
defendant's eyes were glassy and bloodshot and smelled an odor
of alcohol emanating from the defendant. See Commonwealth v.
Rarick, 87 Mass. App. Ct. 349, 350 (2015) (officers'
observations that defendant's eyes were glassy and bloodshot and
that defendant had strong odor of alcohol was evidence of
impairment). Moreover, the defendant appeared to be unsteady on
his feet and struggled to maintain his balance. At various
times during the booking process, the defendant was swaying and
held onto the officer for balance. See Commonwealth v.
Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (defendant's
"slurred speech, belligerent demeanor, strong odor of alcohol,
poor balance, and glassy, bloodshot eyes" were all evidence of
intoxication). This evidence was sufficient to permit the trier
11
of fact to find that the defendant was impaired. See
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).
5. Sufficiency of negligent operation evidence. To prove
negligent operation, "the Commonwealth must prove 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." Ross, 92 Mass. App. Ct. at 379. See
Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004). "The
statute requires proof that the defendant's conduct might have
endangered the safety of the public, not that it, in fact, did."
Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 369 (2019).
Accordingly, negligent operation can be found "despite the
absence of a collision, near collision, or injury." Ross, supra
at 379-380. See Ferreira, 70 Mass. App. Ct. at 33-35.
Here, the defendant's erratic driving and near collision
with parked vehicles was sufficient evidence for the trier of
fact to find that the lives or safety of the public might be
endangered. See Commonwealth v. Daley, 66 Mass. App. Ct. 254,
256 (2006) (driving over fog line multiple times, straddling
breakdown lane, and narrowly missing hitting road work sign was
evidence of negligent operation). The defendant travelled
slowly around the parking lot and drove over a curb, and a
police officer observed the defendant nearly hitting other
parked cars. The defendant was also unable to comply with the
12
police officer's orders to produce his license and registration
and failed to respond to the officer's questions about why he
was in the parking lot. See Commonwealth v. Sousa, 88 Mass.
App. Ct. 47, 51 (2015) (sufficient evidence that defendant's
conduct might have endangered public where defendant's vehicle
rolled through stop sign, abruptly stopped and started, and
defendant appeared asleep behind wheel and did not comply with
police officer's commands). And, of course, the defendant
appeared to be intoxicated. See Ross, 92 Mass. App. Ct. at 380.
This is not a case where the Commonwealth relied upon only the
defendant's intoxication and a nonworking headlight or other
minor equipment issue to prove negligent operation. See
Commonwealth v. Zagwyn, 482 Mass. 1020, 1021-1022 (2019).
Accordingly, there was sufficient evidence for the trier of fact
to find that the defendant operated his vehicle negligently so
that the lives or safety of the public might be endangered. For
the foregoing reasons, the judgments are affirmed.
So ordered.