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
22-P-379
COMMONWEALTH
vs.
BETTY N. MWANGI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
negligent operation of a motor vehicle. By this appeal, she
challenges the sufficiency of the evidence to support her
conviction. We affirm.
Background. "We recite the facts the jury could have
found, viewing the evidence in the light most favorable to the
Commonwealth, while reserving certain details for later
discussion." Commonwealth v. Combs, 480 Mass. 55, 57 (2018). A
Southborough police officer was patrolling Turnpike Road 1 at
approximately 1:42 A.M. on the Friday morning after
Thanksgiving. The officer was driving in the lefthand lane when
1 Turnpike Road is a public way with two lanes in each direction
and a Jersey barrier in the middle of the roadway. At certain
points where there is a turning lane, the road may have three
lanes.
the defendant's car drifted directly in front of him from the
righthand lane without using a turn signal. 2 The officer
followed the car for approximately one-eighth of a mile,
observing as it "kind of drifted . . . back into the right-hand
lane about three feet," "corrected itself," and "drifted over
onto the marked divided lines in the middle between the right-
hand [and] left-hand lanes." Concerned that the defendant might
be intoxicated, the officer turned on the cruiser's emergency
lights to pull the car over. The defendant pulled over in a
"dangerous" spot at the crest of a hill, with the car's left
tires on the line separating the breakdown lane from oncoming
traffic.
When the officer neared the defendant's vehicle, he
immediately smelled alcohol inside. The defendant explained
that she was coming from a family party where she had had one
glass of wine and one glass of Scotch, and that she was taking
two different medications for her anxiety. The defendant's
speech was slurred, and her eyes were glassy and bloodshot. The
defendant also said that she may have been drifting because she
was using her cell phone.
The officer ordered the defendant out of the vehicle; as
she alighted, he smelled alcohol on her person. The defendant
2 The defendant stipulated to operation and to Turnpike Road's
status as a public way.
2
was unsteady on her feet, and "almost fell over" as she was
walking and turned to face the officer. Although she agreed to
perform field sobriety tests, the defendant was unable to follow
the officer's instructions (repeated several times) for either
the nine-step walk and turn or the one-legged stand test. After
forming the opinion that the defendant was intoxicated, the
officer arrested her. The defendant was charged with operating
a motor vehicle under the influence of liquor, G. L. c. 90, § 24
(1) (a) (1), and negligent operation of a motor vehicle, G. L.
c. 90, § 24 (2) (a). A jury found the defendant guilty only of
negligent operation.
Discussion. We review this sufficiency claim, considering
the evidence introduced at trial in the light most favorable to
the Commonwealth, to determine whether any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt, Commonwealth v. Latimore, 378 Mass. 671,
677-678 (1979), bearing in mind that guilt may be established by
circumstantial evidence and that inferences drawn from such
evidence "need only be reasonable and possible and need not be
necessary or inescapable." Commonwealth v. Lao, 443 Mass. 770,
779 (2005), S.C., 450 Mass. 215 (2007), quoting Commonwealth v.
Longo, 402 Mass. 482, 487 (1988). Negligent operation requires
proof that the defendant "(1) operated a motor vehicle (2) upon
a public way (3) negligently so that the lives or safety of the
3
public might be endangered." Commonwealth v. Ross, 92 Mass.
App. Ct. 377, 379 (2017). "The statute only requires proof that
the defendant's conduct might have endangered the safety of the
public, not that it in fact did." Commonwealth v. Ferreira, 70
Mass. App. Ct. 32, 35 (2007). We direct our analysis at the
third element. See note 2, supra.
A rational jury reasonably could have found that the
defendant's conduct might have endangered the safety of the
public. After consuming alcohol, the defendant, while driving,
drifted "directly in front of" a marked police cruiser in the
early-morning darkness. The officer described the defendant as
"driving a little erratic[ally]," and noted that another vehicle
was approaching at the same time. When the officer initiated
the stop, the defendant pulled over in a "pretty dangerous" spot
and admitted to (1) drinking alcohol, (2) using her cell phone
while driving, and (3) taking two medications. 3 See Ross, 92
Mass. App. Ct. at 380 ("The fact that 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"). That the defendant had at least
3 The defendant testified, and on cross-examination admitted that
she knew those medications could cause dizziness, drowsiness,
and difficulty concentrating when mixed with alcohol. As to the
required finding issue, we consider the evidence at the close of
the Commonwealth's case.
4
some difficulty concentrating was reasonably inferable from the
officer's testimony and the dashboard camera footage that
captured both her driving and her unsuccessful field sobriety
tests. A rational jury reasonably could conclude that the
defendant put the safety of the public in danger when, after
mixing medication with alcohol, she used her cell phone while
driving and drifted between lanes without regard for the other
cars on the road. See Commonwealth v. Teixeira, 95 Mass. App.
Ct. 367, 371 (2019); Ross, 92 Mass. App. Ct. at 380-381;
Ferreira, 70 Mass. App. Ct. at 35. See also Lao, 443 Mass. at
779 ("[if], from the evidence, conflicting inferences are
possible, it is for the jury to determine where the truth lies,
for the weight and credibility of the evidence is wholly in
their province").
Judgment affirmed.
By the Court (Neyman, Grant &
Hershfang, JJ. 4),
Clerk
Entered: August 1, 2023.
4 The panelists are listed in order of seniority.
5
Commonwealth v. Betty N. Mwangi.
Combined Opinion