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
23-P-62
COMMONWEALTH
vs.
ROBERT J. EKMALIAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, after a jury
trial, of operating a motor vehicle under the influence of
intoxicating liquor in violation of G. L. c. 90, § 24 (1) (a)
(1). 1 He makes two arguments on appeal. First, he argues that
the Commonwealth failed to prove beyond a reasonable doubt that
his ability to operate a motor vehicle was impaired. Second, he
argues that a misstatement in the prosecutor's closing argument
resulted in a substantial risk of a miscarriage of justice
warranting reversal of the conviction. We affirm.
We recite the evidence, together with the reasonable
inferences to be drawn from it, in the light most favorable to
1 The defendant was also charged with (but found not responsible
for) a headlight violation pursuant to G. L. c. 90, § 7, and not
possessing a certificate of registration pursuant to G. L.
c. 90, § 11.
the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979). At approximately midnight on September 28,
2019, a State trooper observed the defendant yelling, running,
and jumping around while leaving a Cumberland Farms convenience
store. The trooper considered the defendant's behavior to be
odd because, in the trooper's experience, most people leaving a
store do not behave in such a way. The trooper then observed
the defendant drive out of the parking lot without turning on
the car's headlights even though it was nearly midnight and
dark. With the headlights off, the defendant proceeded onto
Route 32, which is a busy street. The trooper followed and
initiated a traffic stop shortly thereafter without incident.
When the trooper approached the car and engaged the defendant in
conversation, he observed that the defendant had bloodshot and
glassy eyes, that the defendant's speech was slurred, and that
there was a strong odor of alcohol emanating from the inside of
the car. The defendant first denied having had anything to
drink, but then admitted to the trooper that he had drunk two
beers that evening.
When the trooper asked the defendant to get out of the car,
the defendant fumbled with the door handle and had trouble
manipulating it. After opening the door, the defendant leaned
2
up against the frame of the car. 2 The trooper then asked the
defendant to perform three field sobriety tests. The
defendant's performance on the nine-step walk and turn and the
one-legged stand tests was not satisfactory. The defendant
completed a correct recitation of the alphabet, but his speech
was slurred. Based on the totality of his observations, the
trooper placed the defendant under arrest for operating under
the influence of alcohol.
"[T]o establish the defendant's guilt of OUI in violation
of G. L. c. 90, § 24 (1) (a) (1), the Commonwealth was required
to prove that the defendant (1) operated a motor vehicle, (2) on
a public way, (3) while under the influence of alcohol."
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).
We focus here only on the third element, which is the only one
in dispute. "[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). "Thus, 'in a prosecution for
[OUI], the Commonwealth must prove beyond a reasonable doubt
that the defendant's consumption of alcohol diminished the
2 Trial counsel lodged an objection to the trooper's testimony as
to why the defendant leaned against the car, which was allowed.
We do not read the transcript to indicate that the judge struck
the trooper's observation of the defendant's conduct, nor would
there have been a basis for doing so.
3
defendant's ability to operate a motor vehicle safely.'" Id.,
quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).
See Gallagher, supra ("the Commonwealth need not prove that the
defendant was drunk, only that alcohol diminished her ability to
operate a motor vehicle safely"). A "diminished capacity to
operate a motor vehicle may be inferred from circumstances other
than actual bad driving." Commonwealth v. Rollins, 59 Mass.
App. Ct. 911, 912 (2003).
In this case, those circumstances included the defendant's
unorthodox behavior coming out of the convenience store, his
driving (albeit only for a short while) in the dark without
headlights, his slurred speech and poor balance, his glassy
eyes, the odor of alcohol, his admission to having drunk alcohol
earlier, and his inability to satisfactorily complete the field
sobriety tests. Compare Gallagher, 91 Mass. App. Ct. at 390-391
(finding evidence of intoxication "compelling, if not
overwhelming" where defendant parked across two spaces, had
glassy, bloodshot eyes, had odor of alcohol, had slightly
slurred speech, and admitted to consuming three beers just prior
to driving); Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354
(2015) ("evidence that the defendant had consumed at least six
beers in the hours before he was stopped, that a moderate odor
of an alcoholic beverage was coming from his person, that his
eyes were red and glassy, and that he was speeding while driving
4
on a road where the posted speed limit was clearly marked was
sufficient to permit a rational fact finder to infer that he was
operating while under the influence of intoxicating liquor");
Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011)
(noting obvious signs of impairment where defendant had, among
other indicators, "strong odor of alcohol, poor balance, and
glassy, bloodshot eyes"); Rollins, 59 Mass. App. Ct. at 912
(inability to perform field sobriety tests is evidence of
impairment).
We now turn to the defendant's argument that by using, in
her closing argument, the phrase "pretty clear" with respect to
the Commonwealth's evidence, the prosecutor misstated the law
and lowered the Commonwealth's burden of proof. Although the
prosecutor could have more artfully phrased her point, the gist
of the prosecutor's comment -- taken in context -- would have
been understood to refer to the unambiguity or strength of the
evidence, not to the Commonwealth's burden of proof. "Closing
arguments must be viewed 'in the context of the entire argument,
and in light of the judge's instructions to the jury and the
evidence at trial.'" Commonwealth v. Allison, 434 Mass. 670,
687 (2001), quoting Commonwealth v. Viriyahiranpaiboon, 412
Mass. 224, 231 (1992). In any event, we see no risk that the
prosecutor's phrasing would have caused the jury to
misunderstand the Commonwealth's burden of proof given the
5
multiple occasions 3 on which the judge correctly instructed the
jury that the Commonwealth bore the burden to prove each element
of the crime beyond a reasonable doubt. See Commonwealth v.
Thomas, 401 Mass. 109, 114 (1987).
For the reasons set out above, the conviction is affirmed.
Judgment affirmed.
By the Court (Wolohojian,
Shin & Ditkoff, JJ. 4),
Clerk
Entered: October 4, 2023.
3 The judge instructed the jury on the Commonwealth's burden of
proof at the beginning of the trial, during the judge's final
instructions, and again in response to a question posed by the
jury during their deliberations.
4 The panelists are listed in order of seniority.
6