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22-P-616 Appeals Court
COMMONWEALTH vs. SEAN C. LAGOTIC.
No. 22-P-616.
Middlesex. January 5, 2023. - March 15, 2023.
Present: Ditkoff, Singh, & Grant, JJ.
Motor Vehicle, Operating under the influence, Operation.
Evidence, Corroborative evidence. Practice, Criminal,
Required finding.
Complaint received and sworn to in the Concord Division of
the District Court Department on December 13, 2019.
The case was tried before Stephen B. Geary, J.
Chia Chi Lee, Assistant District Attorney, for the
Commonwealth.
Sean J. Gallagher for the defendant.
DITKOFF, J. After a jury in the District Court convicted
the defendant of operating a motor vehicle under the influence
of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1), the trial
judge entered a required finding of not guilty pursuant to Mass.
2
R. Crim. P. 25 (b) (1), as amended, 420 Mass. 1502 (1995).1 The
Commonwealth now appeals from this order, pursuant to Mass. R.
Crim. P. 25 (c) (1), as amended, 420 Mass. 1502 (1995).
Concluding that the jury reasonably found that the defendant
operated the motor vehicle from evidence that he was found on
the roadside near the crashed vehicle, requested medical
attention, and repeatedly admitted to multiple persons that he
operated the vehicle, we vacate the order allowing the motion
for a required finding of not guilty.
1. Background. On December 13, 2019, at approximately
1:42 A.M., an Acton police officer responded to the intersection
of Route 2 and Main Street. The weather was "cold, but clear"
and the roads were "dry and clear," having been "salted over
from past storms." The officer observed tire marks from the
Route 2 on-ramp into the woods. The tracks "just missed the
guard rails" and "went a hundred feet into the woods." A black
Toyota Camry was in the woods at the end of the tracks. The
airbags had deployed.2
1 The defendant earlier admitted to sufficient facts and
received a continuance without a finding on a charge of
negligent operation, G. L. c. 90, § 24 (2) (a). No issue
concerning this admission is raised in this appeal.
2 The officer agreed on cross-examination that he had
"learned that airbags had deployed in that vehicle." Neither
party explored whether multiple airbags had deployed or which
ones.
3
The officer approached the defendant, who was talking to
another officer on the roadside. The officer smelled "an
overwhelming odor of an alcoholic beverage," "observed [the
defendant's] eyes to be red and glassy," and detected "a slight
slur to his speech."
The officer asked the defendant how he crashed. The
defendant "said he was coming on the on-ramp and, then, he hit
the snow and, then, lost traction and went into the woods." The
officer asked the defendant where he was coming from. The
defendant said that he was coming from Belmont, where he was a
barber. The defendant reported that he had "stopped for dinner
and drinks." The defendant first said that he had imbibed "one
margarita" and then said that he had imbibed two.
The defendant agreed to perform field sobriety tests.
During the "walk-and-turn test," the defendant failed to follow
the instruction to watch his feet. He raised his arms instead
of keeping them at his side, "missed heel-to-toe," "stepped off
the line," and stopped walking prior to finishing the test.
During the "one-legged stand test," he "immediately started
losing his balance." He raised his arms, "began hopping
backwards," and "put his foot on the ground." The officer
placed the defendant under arrest.
During booking, the defendant said, "I think I have a
concussion, I might need to see someone." Paramedics were
4
summoned to assist him. One paramedic asked the defendant how
fast he was going, and the defendant "said 60 to 70 miles per
hour."3
At trial, the officer was the only witness. At the
conclusion of his testimony, the defendant moved for a required
finding of not guilty, which the trial judge denied. The
defense introduced a videotape of the booking and rested. The
defendant then again moved for a required finding of not guilty,
arguing that there was insufficient evidence of impairment. The
trial judge sua sponte raised the issue whether there was
sufficient evidence of operation. After some discussion, the
judge decided to reserve ruling on the renewed motion and
submitted the case to the jury.4
3 The officer testified that the speed limit on Route 2
westbound is forty-five miles per hour. He did not state what
the speed limit was on the on-ramp.
4 A motion for a required finding of not guilty made at the
close of the Commonwealth's case must be ruled on before the
case proceeds. Mass. R. Crim. P. 25 (a), as amended, 420 Mass
1502 (1995). This is so that the defendant's decision whether
to present a case -- and what sort of case to present -- is
informed by the ruling on the required finding motion. See
Commonwealth v. Yasin, 483 Mass. 343, 351 (2019). As a motion
at the close of all evidence does not involve this interest, a
judge may -- as here -- reserve decision until "before the jury
returns a verdict, after the jury returns a verdict of guilty,
or after the jury is discharged without having returned a
verdict." Mass. R. Crim. P. 25 (b) (1). Of course, an appeal
by the Commonwealth is permissible only when the jury has
returned a guilty verdict. See Mass. R. Crim. P. 25 (c) (1);
United States v. Martin Linen Supply Co., 430 U.S. 564, 575
5
The next day, the jury returned a guilty verdict. The
trial judge then entered a required finding of not guilty,
concluding that "[t]here was no evidence as to this gentleman
operating the vehicle" and that the defendant's admissions were
not corroborated. 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. Tsonis, 96 Mass. App. Ct.
214, 216 (2019), quoting 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. Ross, 92 Mass. App. Ct. 377, 378
(2017), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295,
303 (2016). "Furthermore, when resolving issues of sufficiency
of the evidence, we resolve all issues of credibility in favor
of the Commonwealth." Commonwealth v. Sutherland, 93 Mass. App.
Ct. 65, 71 (2018). The standard of review is the same in the
context of the Commonwealth's appeal pursuant to Mass. R. Crim.
P. 25 (c) (1) as it is in the context of a defendant's appeal
(1977); United States v. Wilson, 420 U.S. 332, 352-353 (1975);
Commonwealth v. Brangan, 475 Mass. 143, 146 (2016).
6
from a conviction. See Commonwealth v. Hamilton, 83 Mass. App.
Ct. 406, 409-410 (2013).
3. Sufficiency of the evidence of operation. In a
prosecution for operating under the influence of intoxicating
liquor, the Commonwealth may proceed on an impaired operation
theory, a per se theory, or both. See Commonwealth v. Hebb, 477
Mass. 409, 409 (2017); Commonwealth v. Dacosta, 85 Mass. App.
Ct. 386, 387 (2014). Under either theory, the Commonwealth must
"prove that the defendant (1) physically operated a vehicle;
(2) 'on a public way or place to which the public has a right of
access.'" Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133-
134 (2018), quoting Commonwealth v. AdonSoto, 475 Mass. 497, 509
(2016). Under a per se theory, the third element is that the
defendant "had a blood alcohol content percentage of .08 or
greater." Commonwealth v. Zeininger, 459 Mass. 775, 778, cert.
denied, 565 U.S. 967 (2011). Under the impaired operation
theory, the third element is "that the defendant was under the
influence of alcohol," Commonwealth v. Gallagher, 91 Mass. App.
Ct. 385, 392 (2017), meaning "that the defendant's consumption
of alcohol diminished the defendant's ability to operate a motor
vehicle safely," Commonwealth v. Rarick, 87 Mass. App. Ct. 349,
352 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173
(1985). Here, the Commonwealth proceeded only on an impaired
operation theory.
7
For sufficiency purposes, only the element of operation is
at issue.5 In this regard, the defendant told the officer that
"he was coming on the on-ramp and, then, he hit the snow and,
then, lost traction and went into the woods." The defendant
further explained that he had driven from Belmont, where he was
a barber, and had stopped for dinner and drinks. At booking,
the defendant said, "I think I have a concussion, I might need
to see someone." After the police summoned medical attention, a
paramedic "asked him how fast he was going and he said 60 to 70
miles per hour."
The defendant's repeated confessions to driving the vehicle
constituted powerful evidence of operation. See Commonwealth v.
Adams, 421 Mass. 289, 291 (1995); Commonwealth v. Hilton, 398
Mass. 63, 67 (1986). Nonetheless, "a criminal defendant may not
be convicted solely on the basis of an uncorroborated
confession." Commonwealth v. Leavey, 60 Mass. App. Ct. 249, 251
(2004). "The corroboration required, though important, is
'quite minimal.'" Commonwealth v. Green, 92 Mass. App. Ct. 325,
327 (2017), quoting Commonwealth v. Villalta-Duarte, 55 Mass.
5 The officer testified that the road in question was "a
state-run highway" and "maintained by Mass DOT." See
Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010).
The defendant's odor of alcohol, glassy eyes, slurred speech,
and performance on the field sobriety tests provided sufficient
evidence of impairment. See Gallagher, 91 Mass. App. Ct. at
392-393.
8
App. Ct. 821, 826 (2002). All that is required is "merely that
'there be some evidence, besides the confession, that the
criminal act was committed by someone, that is that the crime
was real and not imaginary.'" Commonwealth v. Rodriguez, 76
Mass. App. Ct. 59, 63 (2009), quoting Villalta-Duarte, supra at
825. Accord Commonwealth v. Carter, 481 Mass. 352, 361 (2019),
cert. denied, 140 S. Ct. 910 (2020).
Here, there was adequate evidence corroborating the
defendant's statements. The defendant was on the roadside near
the crashed vehicle in the middle of the night. See
Commonwealth v. Proia, 98 Mass. App. Ct. 125, 128 (2020)
(defendant "located outside a nearby tavern" close to accident
site); Commonwealth v. Congdon, 68 Mass. App. Ct. 782, 783
(2007) (defendant was walking toward disabled vehicle from short
distance away). The accident had caused the airbags to inflate,
and the defendant required medical care for a possible
concussion. Finally, there was an "absence of evidence tending
to suggest that someone other than the defendant was operating"
the vehicle. Commonwealth v. Cromwell, 56 Mass. App. Ct. 436,
439 (2002).6 Accord Commonwealth v. Petersen, 67 Mass. App. Ct.
We do not, however, agree with the Commonwealth's
6
contention that Cromwell sets forth the "relevant factors to
determine the sufficiency of operation." Cromwell, 56 Mass.
App. Ct. at 439, merely lists the evidence that supported a
conviction in that case. Although comparing the evidence in any
particular case to the evidence in Cromwell is helpful in
9
49, 52 (2006). In short, there was evidence that the crime of
operating under the influence "was real and not imaginary."
Commonwealth v. Gibson, 489 Mass. 37, 53 (2022), quoting
Commonwealth v. Forde, 392 Mass. 453, 458 (1984).
This case is dissimilar to Commonwealth v. Leonard, 401
Mass. 470 (1988). In that case, the defendant's wife testified
that she was the operator of the vehicle, and "[t]he interior
physical damage to the vehicle corroborated her testimony." Id.
at 472. The Commonwealth's purported corroborating evidence --
that the defendant demanded that the wife give his keys back to
him and that the wife's cigarettes were on the passenger side
floor – failed, as the demand for the keys was ambiguous and the
location of the cigarettes speculative in light of a struggle
between the defendant and his wife. See id. at 473. There was
no accident, and therefore no other proof that negligent or
intoxicated driving was anything but imaginary. See id. at 471.
Accord Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 90
(2021), quoting Forde, 392 Mass. at 458 (rule requires evidence
"that the crime was real and not imaginary"). As the Supreme
Judicial Court recognized in Adams, 421 Mass. at 292, Leonard
determining whether that case is on point or distinguishable,
the evaluation of the sufficiency of the evidence of operation
need not involve an analysis of how close the evidence in any
particular case comes to each of the pieces of evidence found in
Cromwell.
10
has little application where there is no "evidence tending to
suggest that someone other than the defendant was operating" the
vehicle. Accord Commonwealth v. Simon, 57 Mass. App. Ct. 80, 91
(2003) (noting absence in Leonard of "anything at all to
corroborate the admission"). Accordingly, there was sufficient
evidence to support the jury verdict here.
4. Conclusion. The order allowing the motion for a
required finding of not guilty is vacated. The jury's verdict
is reinstated, and the case is remanded to the District Court
for sentencing.
So ordered.