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16-P-1392 Appeals Court
COMMONWEALTH vs. DEJON ROSS.
No. 16-P-1392.
Middlesex. September 6, 2017. - October 11, 2017.
Present: Massing, Kinder, & Ditkoff, JJ.
Motor Vehicle, Operating to endanger. Practice, Criminal,
Required finding.
Complaint received and sworn to in the Natick Division of
the District Court Department on May 27, 2014.
After transfer to the Marlborough Division of the District
Court Department, the case was tried before Michael L. Fabbri,
J.
Justin D. Cohen for the defendant.
Emily Walsh, Assistant District Attorney, for the
Commonwealth.
DITKOFF, J. The defendant, Dejon Ross, appeals from his
conviction of negligent operation of a motor vehicle, G. L.
c. 90, § 24(2)(a). Concluding that evidence of the defendant's
excessive speed at night on a narrow residential two-lane road
lined with trees, poles, and fences, after consuming alcohol,
2
was sufficient to show that he operated negligently so that the
lives or safety of the public might have been endangered, we
affirm.
1. Background. On May 23, 2014, at approximately 9:50
P.M., a police officer in the town of Sherborn (town) observed
the defendant driving a red sedan, southbound on Western Avenue
in the town, at a high rate of speed. At the location in
question, Western Avenue is a public two-lane road with narrow,
unpaved shoulders and no breakdown lane. The road is lined by
trees, telephone poles, and residential fences along where the
incident occurred. The officer testified that the speed limit
was thirty-five miles per hour. Using radar, the officer
determined that the defendant was travelling at fifty miles per
hour.
The officer activated his police cruiser's lights, and the
defendant promptly pulled over to the side of the road. The
officer observed that the defendant was the driver and noticed
two other passengers in the sedan. When the defendant lowered
the driver's side window, the officer "immediately detected
. . . a strong odor of an alcoholic beverage" and observed that
the defendant's eyes appeared "very glossy."
3
The officer asked the defendant to get out of the vehicle
and then performed three field sobriety tests on him.1 While
conducting the sobriety tests, the officer observed that the
defendant (1) was unsteady during all three tests;
(2) repeatedly stated, "I couldn't even do this if I was sober"
while standing on one leg; (3) spoke in "thick," slurred
language; and (4) emitted the smell of alcohol as he spoke. The
officer testified that, in his opinion, the defendant failed to
perform two sobriety tests satisfactorily, and failed to perform
a third test "[a]s instructed."
The defendant ultimately was tried by a jury on a complaint
charging him with (1) operating a 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.2
The jury acquitted the defendant of OUI and convicted him of
negligent operation.
2. Discussion. a. Standard of review. When reviewing
the denial of a motion for a required finding of not guilty, "we
consider the evidence introduced at trial in the light most
1
The officer testified that the tests were performed on the
road in an area "well-lit by streetlights." The defendant,
however, produced witness testimony contradicting the presence
of streetlights in the stop's vicinity.
2
A third charge, of operating a motor vehicle with a
suspended license, G. L. c. 90, § 23, was dismissed by the
Commonwealth.
4
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, 303 (2016), quoting from Commonwealth v.
Woods, 466 Mass. 707, 713, cert. denied, 134 S. Ct. 2855 (2014).
As the defendant moved for a required finding of not guilty at
the close of the Commonwealth's case and again at the close of
all the evidence,3 we first "consider the state of the evidence
at the close of the Commonwealth's case to determine whether the
defendant's motion should have been granted at that time."
Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006), quoting
from Commonwealth v. Sheline, 391 Mass. 279, 283 (1984). Then,
we "consider the state of the evidence at the close of all the
3
That the trial judge mentioned at sidebar that the
evidence was "thin as to one or another or both counts" is of no
moment. A trial judge is entitled to a frank discussion at
sidebar with counsel, and a judge's sidebar remarks are neither
evidence to be considered by the jury nor rulings with legal
effect. See Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308
(1992) ("Comments made by a judge in colloquy with counsel,
particularly when counsel are permitted to carry on for the
purpose of persuading the judge, are not taken as tantamount to
a ruling of law by the judge"). Similarly, the prosecutor's
admission that the evidence was "slim" while arguing that it was
sufficient shows commendable frankness and is not a proper
consideration for our analysis.
5
evidence, to determine whether the Commonwealth's position as to
proof deteriorated after it closed its case." Ibid.
b. Sufficiency of the evidence at the close of the
Commonwealth's case. To obtain a conviction for negligent
operation of a motor vehicle pursuant to G. L. c. 90,
§ 24(2)(a), 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. Commonwealth v. Duffy, 62 Mass. App. Ct. 921,
921 (2004). Here, only the third element is contested.
Unlike many negligent operation cases, this case does not
involve a collision or a near collision. See, e.g.,
Commonwealth v. Charland, 338 Mass. 742, 743-744 (1959)
(affirming a negligent operation conviction after a head-on
collision while the defendant was travelling the wrong way on a
rotary traffic circle); Commonwealth v. Daley, 66 Mass. App. Ct.
254, 256 (2006) (erratic swerving while intoxicated such that
defendant "nearly struck a large road sign"). Likewise,
negligence per se does not apply here; evidence that the
defendant exceeded the posted speed limit is not adequate, in
and of itself, to prove negligent operation. See Duffy, 62
Mass. App. Ct. at 922, citing Commonwealth v. Campbell, 394
Mass. 77, 83 n.5 (1985).
6
In Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 33–35
(2007), this court found sufficient evidence to support a
negligent operation conviction despite the absence of a
collision, near collision, or injury. There, a police officer
observed the defendant's vehicle accelerate after reversing out
of a parking space, making a "screeching noise" and causing the
vehicle to "fishtail" as it left the parking lot traveling
approximately twenty miles per hour. Id. at 33. Considering
the time and place -- the incident occurred midday, in a
commercial parking lot with "moderate to heavy" vehicle and
pedestrian traffic, and in snow-covered conditions -- we held
that the evidence "was sufficient to prove that [the
defendant's] conduct might have endangered the lives of the
public." Id. at 35.
Here, the defendant was driving at least fifteen miles per
hour over the speed limit on a dark tree- and fence-lined road,
at night, through a residential area. The road was narrow;
there were no curbs, breakdown lanes, or guardrails to mitigate
the risk if the defendant lost control of his vehicle. The
defendant's relatively high speed increased the probability of a
collision by impairing the defendant's ability to react to
hazards -- whether expected or unexpected, natural or human --
likely to occur in the area. See Duffy, 62 Mass. App. Ct. at
922-923.
7
Moreover, the defendant was driving with passengers on the
Friday night of Memorial Day weekend, in a vehicle smelling
strongly of alcohol. See id. at 922 ("the defendant was
speeding through a thickly settled neighborhood on a holiday
afternoon"). The evidence allowed the jury to find that the
defendant was under the influence of alcohol to such an extent
that the defendant's physical condition was impaired during the
field sobriety tests. See Commonwealth v. Woods, 414 Mass. 343,
350, cert. denied, 510 U.S. 815 (1993) ("Evidence that the
defendant was consuming alcohol prior to driving with passengers
late at night is patently relevant to whether the defendant
exercised reasonable care while driving"); Daley, 66 Mass. App.
Ct. at 256 (defendant's intoxication contributed to evidence of
negligent operation). 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. See Commonwealth v. Robicheau, 421
Mass. 176, 177, 181 (1995); Commonwealth v. Elliffe, 47 Mass.
App. Ct. 580, 583 (1999).
In sum, the defendant drove well in excess of the speed
limit at night at the beginning of Memorial Day weekend with two
passengers in the car. The road was a narrow, two-lane,
residential road, lined with trees, telephone poles, and fences.
In these circumstances, especially in light of the evidence of
8
the defendant's intoxication, a reasonable jury could conclude
that he acted negligently.
c. Deterioration. Deterioration occurs where "evidence
for the Commonwealth necessary to warrant submission of the case
to the jury is later shown to be incredible or conclusively
incorrect." Kater v. Commonwealth, 421 Mass. 17, 20 (1995).
Deterioration does not occur merely because the defendant
contradicted the Commonwealth's evidence. See ibid., citing
Commonwealth v. Walker, 401 Mass. 338, 343-344 (1987). Rather,
"if the Commonwealth has presented sufficient evidence that the
defendant committed the crime, the fact that the defendant has
presented evidence that he did not does not affect the
sufficiency of the evidence unless the contrary evidence is so
overwhelming that no rational jury could conclude that the
defendant was guilty." O'Laughlin, 446 Mass. at 204.
Here, the defense investigator's testimony that the area
where the officer performed the field sobriety tests was not lit
by streetlights negated no element of the crime and, in any
event, could have been disbelieved by the jury. See Walker, 401
Mass. at 343-344 ("As the jury were free to disbelieve the
defendant's account, there was nothing compelling in this
evidence which caused the prosecution's case to deteriorate").
Moreover, the possibility that the area was poorly lit
increased, rather than decreased, the danger posed by the
9
defendant's driving. Accordingly, the evidence of negligent
operation remained sufficient after the defendant's case.
Judgment affirmed.
Commonwealth v. Ross
Combined Opinion