NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

18-P-658                                            Appeals Court

             COMMONWEALTH    vs.   ISMAEL D. TEIXEIRA.


                            No. 18-P-658.

           Plymouth.    April 2, 2019. - May 24, 2019.

            Present:   Rubin, Henry, & Wendlandt, JJ.


Motor Vehicle, Operating to endanger. Alcoholic Liquors, Motor
     vehicle. Practice, Criminal, Required finding.


     Complaint received and sworn to in the Brockton Division of
the District Court Department on August 21, 2017.

    The case was tried before Michael A. Vitali, J.


     Jason C. Howard for the defendant.
     Danny F. Soto, Assistant District Attorney, for the
Commonwealth.


    HENRY, J.   The facts in this case differ from those in many

of our cases concerning convictions of negligent operation of a

motor vehicle under G. L. c. 90, § 24 (2) (a), because here the

defendant's car did not drift, weave, or swerve; the defendant

did not drive at an excessive speed, and there was no accident.

However, the defendant, after having consumed alcohol, was
                                                                     2


driving well below the posted speed limit while holding a cell

phone approximately one foot from his face, and while showing

some signs of intoxication when stopped by a State trooper.

These facts are sufficient to prove that the defendant operated

his vehicle negligently "so that the lives or safety of the

public might be endangered."     G. L. c. 90, § 24 (2) (a).     We

affirm.

    Background.    On August 19, 2017, State Trooper Gregory

Furtado observed the defendant driving between five and ten

miles per hour in an area with a posted speed limit of thirty

miles per hour.   The defendant was manipulating a cell phone one

foot away from his face and appeared to be reading something on

the screen.   Trooper Furtado "ran the license plate" and learned

"there was no inspection results on the vehicle."     Trooper

Furtado followed the defendant for approximately one block.

During this time, the defendant turned left onto a residential

street.   Trooper Furtado then activated his emergency lights to

initiate a motor vehicle stop.     The defendant immediately

reduced his speed and safely brought his car to a complete stop.

In the time the trooper observed the defendant operating a motor

vehicle, the defendant did not weave, drift, or swerve; he did

not strike any curb or another vehicle.     There was nothing out

of the ordinary in how the defendant made the left turn.
                                                                    3


     Upon approaching the car, Trooper Furtado observed the

defendant's cell phone on the defendant's lap with the "GPS"1

function open.   The defendant explained that he was using the

cell phone's GPS to find his friend's house.2   Trooper Furtado

detected the smell of alcohol coming from inside the car and

noted that the defendant's eyes were bloodshot and his speech

was slurred.   After requesting the defendant's license and

registration, Trooper Furtado observed the defendant fumble with

his wallet and pass over his license several times.

     The defendant admitted to having consumed two beers that

evening and agreed to perform field sobriety tests.   When

exiting the vehicle, defendant was unbalanced and swayed back

and forth.   When performing the one-leg stand, the defendant did

not keep his foot six inches above the ground as instructed and

placed his foot on the ground after eight and then eleven

seconds, rather than after thirty seconds as instructed.      On the

nine-step walk and turn, the defendant had difficulty following

instructions, did not touch his heel to his toe on some steps,

stepped on his own toes, and took ten steps instead of nine.


     1 The term "GPS" was never defined.   We assume it means
global positioning system.

     2 Throughout his communication with Trooper Furtado, the
defendant provided a total of four contradictory answers as to
where he was going: (1) to his friend's house; (2) to pick up
his brother; (3) to his girlfriend's house; and (4) to his
house.
                                                                    4


     The defendant was tried by a jury on a complaint charging

him with (1) operating a motor 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.    The jury acquitted

the defendant of OUI and convicted him of negligent operation.3

On appeal the defendant challenges the sufficiency of the

evidence supporting that conviction.

     Discussion.   1.   Standard of review.   At the close of the

Commonwealth's case, the defendant moved for required findings

of not guilty, which the judge denied.    When reviewing the

denial of a motion for a required finding of not guilty, we must

determine "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt" (quotation omitted).    Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979).     "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 Commonwealth

v. Woods, 466 Mass. 707, 713 (2014).




     3 Following the jury verdict, the judge found the defendant
not responsible for two civil infractions, including sending an
electronic message while operating a motor vehicle, in violation
of G. L. c. 90, § 13B, and failing to have a valid motor vehicle
inspection sticker, in violation of G. L. c. 90, § 20.
                                                                     5


    2.   Sufficiency of the evidence.     To sustain a conviction

of negligent operation, the Commonwealth must prove that the

defendant (1) operated a motor vehicle, (2) on a public way, and

(3) negligently, so that the lives or safety of the public might

be endangered.    See G. L. c. 90, § 24 (2) (a).   Only the third

element is at issue in this appeal.     The statute requires proof

that the defendant's conduct might have endangered the safety of

the public, not that it, in fact, did.     See Commonwealth v.

Duffy, 62 Mass. App. Ct. 921, 923 (2004).     "Negligence in this

context is determined by the same standard that is employed in

tort law."   Id. at 922 n.2.

    This case, unlike many negligent operation cases, does not

involve evidence of a collision, a near collision, a swerve, a

departure from marked lanes, or any erratic movement of the

motor vehicle other than speed significantly lower than the

speed limit.     See, e.g., Commonwealth v. Charland, 338 Mass.

742, 743-744 (1959) (affirming negligent operation conviction

after head-on collision while defendant was traveling wrong way

on rotary traffic circle); Commonwealth v. Ferreira, 70 Mass.

App. Ct. 32, 33-35 (2007) (operating to endanger where, despite

no pedestrians nearby, defendant accelerated in manner that

caused tires to spin, car to "fishtail," and "screeching

noise"); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256

(2006) (affirming negligent operation conviction where erratic
                                                                    6


swerving while intoxicated such that defendant "nearly struck a

large road sign").     Likewise, negligence per se does not apply

here; a civil infraction alone is not sufficient to constitute

negligent operation.     See Duffy, 62 Mass. App. Ct. at 922

(evidence of speeding alone insufficient to support negligent

operation conviction).

     On the other hand, this court has sustained a conviction in

the absence of a collision or near collision.     In Commonwealth

v. Ross, 92 Mass. App. Ct. 377, 377 (2017), this court held that

evidence of the defendant's excessive speed at night on a narrow

residential road -- after he had consumed alcohol -- was

sufficient to prove that the defendant operated negligently so

as to endanger the public.

     In this case, after having consumed alcohol, the defendant

was driving twenty to twenty-five miles per hour below the

posted speed limit with his cell phone held one foot in front of

his face.4   See Ross, 92 Mass. App. Ct. at 380 ("The fact that


     4 General Laws c. 90, § 13B, prohibits an operator of a
motor vehicle from "us[ing] a mobile telephone, or any handheld
device capable of accessing the internet, to manually compose,
send or read an electronic message while operating a motor
vehicle" unless "the vehicle is stationary and not located in a
part of the public way intended for travel." In its brief, the
Commonwealth refers to a violation of G. L. c. 90, § 13B, as a
crime; it is a civil infraction. Section 1 of G. L. c. 90
defines "[e]lectronic message" as "a piece of digital
communication that is designed or intended to be transmitted
between a mobile electronic device and any other electronic
device; provided, however, that electronic message shall
                                                                   7


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").   A defendant's

driving need not have been erratic to support a conviction of

negligent operation, so long as the conduct, taken as a whole,

might have endangered the lives and safety of the public.    See

Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015) ("The

question is whether the defendant's driving had the potential to

cause danger to the public, not whether it actually did").     Even

without any evidence of erratic driving, a reasonable jury could

conclude that the defendant drove negligently so as to put the

lives or safety of the public in danger when he had consumed

alcohol and drove substantially below the speed limit while

holding a cell phone one foot from his face.

                                   Judgment affirmed.




include, but not be limited to, electronic mail, electronic
message, a text message, an instant message, a command or
request to access an internet site, or any message that includes
a keystroke entry sent between mobile devices." Accordingly,
§ 13B does not prohibit passive cell phone Internet use, such as
the use of GPS.

     In this case, distraction can be inferred from the
defendant's holding his cell phone so close to his face. The
trooper also testified, without objection, that based on the
position of the cell phone in relationship to the defendant's
face, the cell phone "was definitely a distraction."
