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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.
