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15-P-169                                              Appeals Court

                COMMONWEALTH    vs.   ROBERT VERONNEAU.


                              No. 15-P-169.

           Bristol.       March 9, 2016. - October 11, 2016.

               Present:    Cypher, Cohen, & Neyman, JJ.


Firearms. Intoxication. Practice, Criminal, Findings by judge,
     Probation. Evidence, Judicial notice, Intoxication.
     Constitutional Law, Right to bear arms.



     Complaint received and sworn to in the New Bedford Division
of the District Court Department on May 24, 2013.

    The case was heard by J. Thomas Kirkman, J.


     John G. Mateus for the defendant.
     Corey T. Mastin, Assistant District Attorney, for the
Commonwealth.


    COHEN, J.     The defendant was tried in the District Court,

jury-waived, on charges of carrying a loaded firearm while under

the influence of intoxicating liquor (FUI), see G. L. c. 269,

§ 10H; negligent operation of a motor vehicle, see G. L. c. 90,

§ 24(2)(a); operating a motor vehicle while under the influence
                                                                    2


of intoxicating liquor (OUI), second offense, see G. L. c. 90,

§ 24(1)(a)(1); and two civil motor vehicle infractions, speeding

and marked lanes violation.    The judge found the defendant

guilty of FUI, and imposed a sentence of one year of

unsupervised probation with a condition that he not possess

firearms or have a firearm license during that period.      The

judge also found the defendant at fault for the civil motor

vehicle infractions, and imposed fines; however, the judge found

the defendant not guilty of negligent operation of a motor

vehicle and OUI.    The defendant's primary contention on appeal

is that his conviction of FUI is fatally inconsistent with his

acquittal of OUI.    After consideration of this and other

arguments presented by the defendant, we affirm.

    Background.     The evidence, taken in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378

Mass. 671, 677-678 (1979), may be summarized as follows.       On May

23, 2013, State police Trooper Paul Gifford was patrolling in a

marked cruiser on Route 18 in New Bedford, which has a posted

speed limit of fifty miles per hour.    It was raining heavily.

The trooper observed a vehicle entering Route 18 from the east

ramp of Route 495, at a speed that he estimated to be eighty-two

miles per hour.    The vehicle accelerated, changed lanes twice,

passed three other vehicles, drifted to the right, drove in the

breakdown lane, and then swerved back into the right travel
                                                                     3


lane.   Those maneuvers occurred without use of the turn signal.

The vehicle exited onto Elm Street, at which point the trooper

stopped it.

       Two individuals were in the vehicle -- the defendant, who

was driving, and his girlfriend, who was seated in the front

passenger seat.   After requesting and receiving the defendant's

license and registration, the trooper noticed that the

defendant's eyes appeared "glossy" and that he smelled of

alcohol.   The defendant denied having consumed alcohol and told

the trooper that the odor was coming from his girlfriend.

       At the trooper's request, the defendant stepped out of the

vehicle, grabbing onto it for balance.    The trooper then noticed

a large bulge in a front pocket of the defendant's pants, which

was consistent with the size and shape of a firearm.     He asked

the defendant if he had a firearm on his person, and the

defendant responded that he was carrying a Beretta .25 caliber

pistol.    The defendant also informed the trooper that the pistol

was loaded, with a round in the chamber, and that the safety was

off.    The defendant represented (and the trooper later

confirmed) that he had a license to carry the firearm.     The

trooper took possession of the pistol, which, at trial, was

stipulated to be a working firearm.

       By this time, the rain had slowed to a drizzle.   The

trooper asked the defendant to perform field sobriety tests and
                                                                    4


instructed the defendant on how to perform each test.    The

defendant endeavored to comply.   Although he passed the alphabet

test, the defendant did not successfully complete the one-leg

stand test or the nine-step walk and turn test.     The trooper

placed the defendant under arrest and gave him Miranda warnings.

The defendant then "begg[ed]" the trooper for a "break" and

admitted to having consumed three vodka tonics.

     The trooper brought the defendant to the State police

barracks, where the defendant consented to and participated in a

breathalyzer test approximately one hour after the vehicle had

been stopped.   The result was a reading of .07.

     Discussion.   1.   Inconsistent findings.   The defendant

argues that his conviction of FUI cannot stand because it is

inconsistent with his acquittal of OUI.    Because both the FUI

statute1 and the OUI statute2 contain the phrase "under the

influence," the defendant argues that the standard for



     1
       General Laws c. 269, § 10H, inserted by St. 1998, c. 180,
§ 71, provides in relevant part: "Whoever, having in effect a
license to carry firearms . . . carries on his person, or has
under his control in a vehicle, a loaded firearm . . . while
under the influence of intoxicating liquor . . . shall be
punished . . . ."
     2
       General Laws c. 90, § 24(1)(a)(1), first par., as amended
by St. 2003, c. 28, § 1, provides in relevant part: "Whoever,
upon any way . . . operates a motor vehicle with a percentage,
by weight, of alcohol in their blood of eight one-hundredths or
greater, or while under the influence of intoxicating liquor
. . . shall be punished . . . ."
                                                                     5


intoxication must be the same, and that the judge erroneously

and arbitrarily applied a lower standard to the FUI charge.

       We disagree that the same degree of intoxication invariably

will establish guilt or innocence of both crimes.    In accordance

with well-established case law interpreting the OUI statute, the

phrase "under the influence" refers to impairment, to any

degree, of an individual's ability to safely perform the

activity in question.    Thus, "in a prosecution for [OUI], the

Commonwealth must prove beyond a reasonable doubt that the

defendant's consumption of alcohol diminished the defendant's

ability to operate a motor vehicle safely."     Commonwealth v.

Connolly, 394 Mass. 169, 173 (1985).    Likewise, in a prosecution

for FUI, the Commonwealth must prove beyond a reasonable doubt

that the defendant's consumption of alcohol diminished his

ability to safely carry a loaded firearm on his person (or have

one under his control in a vehicle).    Despite their use of

common language, however, the statutes concern different

instrumentalities and activities.    For that reason, a trier of

fact rationally may find that a particular individual was

sufficiently impaired to be guilty of one offense but not the

other.

       Here, when the judge announced his findings, he stated that

the Commonwealth had carried its burden as to FUI but not as to

OUI.   This was not inherently contradictory.   The judge could
                                                                       6


have reasoned, for example, that the defendant should get the

benefit of the doubt as to impaired operation of the vehicle,

given that his breathalyzer test result was lower than the .08

required to establish a violation of the OUI statute under an

alternative per se theory.   At the same time, the judge also

could have reasoned that the defendant's lack of physical

coordination -- as evinced by his grabbing the vehicle for

balance and failing to successfully complete the one-leg stand

and the nine-step walk and turn tests -- created an unacceptable

safety risk that his loaded pistol (with a bullet in the chamber

and the safety off) could be discharged.

     In any event, contrary to the defendant's position, the

judge's findings cannot be viewed as legally inconsistent.       See

Commonwealth v. Gonzalez, 452 Mass. 142, 151 n.8 (2008).     A

legal inconsistency arises when no set of facts could have

resulted in the verdict; in such a case, the verdicts cannot be

sustained, even when they are rendered by a jury.   Ibid.

Furthermore, to the extent that the defendant may be understood

to contend that the findings were factually inconsistent, he

states no ground for reversal.3,4


     3
       As explained in Gonzalez, supra at 155, while a judge
sitting without a jury should avoid making factually
inconsistent findings, factual inconsistency is not a basis for
reversal. This is true even when there is no apparent reason
for the inconsistent findings except the possibility of
leniency. Id. at 155 n.11.
                                                                     7


     2.   Judicial notice.   The defendant separately argues that

the judge took judicial notice that guns are more dangerous than

cars, and that doing so was improper because this proposition is

not indisputably true.5   As support for his argument, the

defendant points to statements made by the judge to the effect

that "[g]uns are inherently dangerous" and are "different from

cars."    We disagree that those comments, which were made during

discussions with counsel and when announcing the findings,

indicate that the judge took judicial notice of any fact.     They

merely reflect the judge's understanding that, as fact finder,

he was required to assess the defendant's ability to safely



     4
       For the first time on appeal, the defendant further argues
that the phrase "under the influence" as used in the FUI statute
is ambiguous and subject to the rule of lenity, or,
alternatively, that the phrase makes the FUI statute
unconstitutionally vague. We discern no error, and, hence, no
substantial risk of a miscarriage of justice. See Commonwealth
v. Randolph, 438 Mass. 290, 297-298 (2002). The meaning of
"under the influence" is well established in the OUI context and
is no more ambiguous in the FUI context. Nor is the FUI statute
void for vagueness. Individuals of normal intelligence
reasonably would expect that in assessing whether an individual
is "under the influence" the degree of intoxication that would
result in impairment may vary depending upon the task being
performed. Although not fixed, the standard is a
"comprehensible normative standard" sufficient to provide notice
of how to conform one's conduct to the law. See Commonwealth v.
McGhee, 472 Mass. 405, 414 (2015), quoting from Commonwealth v.
Orlando, 371 Mass. 732, 734 (1977).
     5
       A judge may take judicial notice of facts outside of the
record that are considered "generalized knowledge" and are
"readily ascertainable from authoritative sources."
Commonwealth v. Green, 408 Mass. 48, 50 n.2 (1990).
                                                                    8


drive a motor vehicle or carry a loaded firearm in relation to

each activity and instrumentality, individually.

    3.   Sufficiency of the evidence.     The defendant claims that

there was insufficient evidence to find that he was "under the

influence," emphasizing that he passed one of the three field

sobriety tests, and that his poor performance on the other tests

could have been attributable to slippery road conditions and

loose footwear.   That evidence, however, was for the judge to

evaluate along with other evidence in the case, including the

trooper's testimony that the defendant's eyes were glossy, he

smelled of alcohol, he displayed a lack of coordination, he

failed two of three field sobriety tests, he admitted to having

consumed three vodka tonics, and his blood alcohol level was .07

approximately an hour after his vehicle had been stopped.     There

was ample evidence to support the guilty finding.

    4.   Probation condition.   Finally, the defendant argues

that the probation condition requiring him to surrender his

firearms during the term of his probation violated his right to

bear arms under the Second Amendment to the United States

Constitution.   Passing whether this argument was preserved, we

find it to be entirely without merit.     "[T]he right secured by

the Second Amendment is not unlimited."     District of Columbia v.

Heller, 554 U.S. 570, 626 (2008).   Furthermore, a condition of

probation may impinge on constitutional rights, "so long as the
                                                                   9


condition is 'reasonably related' to the goals of sentencing and

probation."   Commonwealth v. Lapointe, 435 Mass. 455, 459

(2001), quoting from Commonwealth v. Pike, 428 Mass. 393, 403

(1998).   Here, given the nature of the offense, the condition

was reasonable and appropriate.

                                    Judgment affirmed.
