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18-P-1499                                           Appeals Court

              COMMONWEALTH   vs.   KOSTANTINOS TSONIS.


                           No. 18-P-1499.

        Barnstable.       June 7, 2019. - October 8, 2019.

            Present:   Hanlon, Ditkoff, & McDonough, JJ.


Motor Vehicle, Operating under the influence, Operating to
     endanger. Way, Public: what constitutes. Practice,
     Criminal, Required finding.



     Complaint received and sworn to in the Falmouth Division of
the District Court Department on August 3, 2017.

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


     James R. McMahon, III, for the defendant.
     Laura Marshard, Assistant District Attorney, for the
Commonwealth.


    DITKOFF, J.    The defendant, Konstantinos Tsonis, appeals

after a jury-waived trial from his District Court convictions of

operating under the influence of intoxicating liquor, G. L.

c. 90, § 24 (1) (a) (1), and negligent operation of a motor

vehicle, G. L. c. 90, § 24 (2) (a).    We conclude that a parking
                                                                       2


lot that members of the public may use to visit a restaurant,

bar, shop, and beach, all open to the public, is a public way or

place.    Further concluding that evidence of the defendant's

physical characteristics, belligerent behavior, and erratic

driving was sufficient to show the defendant's impairment and

negligent operation, we affirm.

     1.   Background.   a.   The resort.   The Sea Crest Beach Hotel

is a resort in North Falmouth consisting of nine buildings,

including a hotel, a restaurant, a bar, a retail shop, and a

public beach.    The restaurant, bar, shop, and beach are open to

the public.

     The resort has one entrance and one exit and is accessible

only by Quaker Road, a public way.     To access the parking lot,

drivers must pass by a gatehouse with a sign that says, "GUEST

CHECK IN."    Those not checking into the hotel are routinely

permitted to drive by the gatehouse without stopping and park in

the parking lot.    The gatehouse has an attendant primarily on

the weekends and only during the day.

     Occasionally, when the resort is busy, parking is

restricted to hotel guests and beach club members.1     At these

times, the hotel puts out a sign reading, "Parking For




     1 Hotel guests are given window tags to demonstrate their
right to park at all times. Restaurant and bar patrons are not
given window tags.
                                                                      3


Registered Hotel Guests and Beach Club Members Only."     This

sign, however, is never left out at night.     "The only time [the

resort] ha[s] a parking issue is during daylight hours when

people want to go to the beach."

    b.     The incident.   On August 3, 2017, in the early hours of

the morning, an employee of the resort saw a truck slowly moving

in the resort parking lot.    The employee, who was in charge of

managing the parking lot, approached the truck and asked the

driver, through the open driver's side window, if he needed

assistance.    The employee observed that the defendant, the

driver of the truck, did not respond but had a glazed look on

his face and appeared aggressive.     The defendant then drove

away, driving over a curb.    The employee was concerned that the

truck was disturbing guests because it was extremely noisy and

appeared to be shining its high beam lights into one of the

hotel buildings where guests were staying.    The employee also

expressed concern for the safety of the guests.

    The defendant continued to drive around the parking lot at

a very slow speed.     The employee attempted to speak to the

defendant again.     This time, the defendant stopped the truck,

threw open the door to the truck, and "lunged" towards the

employee with "clenched fists," screaming and making incoherent

threats.    The employee retreated to the hotel lobby and called

the police.    The employee observed that the defendant continued
                                                                     4


to drive around the parking lot while he was inside the building

calling the police.

    When a police officer arrived, the defendant was still

driving around the parking lot.    The defendant drove over marked

parking spots and nearly struck parked vehicles.    The officer

turned on his emergency blue lights to stop the vehicle.    When

the officer approached the driver's side of the car on foot, the

defendant, through the open driver's side window, said,

"Really?"    When the officer requested the defendant's license

and registration and asked what the defendant was doing there,

the defendant continued to repeat, "Really? Really?"

    When the officer asked the defendant to step out of the

vehicle, the officer noticed that the defendant had difficulty

doing so.    The defendant appeared to be unsteady on his feet and

struggled to maintain his balance once he was out of the truck.

The officer observed that he was swaying back and forth while

speaking.    The officer smelled an odor of alcohol emanating from

the defendant and noticed that his eyes were glassy and

bloodshot.   The defendant denied having consumed alcohol that

night.   When the officer asked the defendant questions, such as

"[W]here are you coming from?" and "[W]hat are you doing here?"

the defendant continued to repeat, "Really?"    The defendant told

the officer that he was not a guest at the hotel but did not
                                                                     5


explain why he was there.    The officer observed that the

defendant's speech was slurred.

    The officer arrested the defendant and placed him in his

cruiser.    The officer transported the defendant to the Falmouth

Police station and helped the defendant out of the cruiser,

observing that the defendant was struggling to get out of the

vehicle.    Once the defendant was in the booking room, the

transporting officer held onto him, and he leaned on the officer

for balance.     During booking, the defendant stated that he

believed that he was at the Bourne Police station, where he said

his sister worked.    The defendant continued to sway back and

forth and lean on the officer for balance throughout the booking

process.

    After a jury-waived trial, a District Court judge convicted

the defendant of operating under the influence of intoxicating

liquor and of negligent operation.    This appeal followed.

    2.     Standard of review.   "[W]e consider the evidence

introduced at trial in the light most 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,
                                                                      6


303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713

(2014).

     3.   Sufficiency of public way or place evidence.    To prove

either the crime of operating under the influence or negligent

operation, the Commonwealth must prove that the defendant

operated a motor vehicle upon a public way or place.     See

Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017);

Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 832 (2010).      A

public way or place is defined as "any way or . . . any place to

which the public has a right of access, or . . . any place to

which members of the public have access as invitees or

licensees."   G. L. c. 90, § 24 (1) (a) (1).    G. L. c. 90,

§ (24) (2) (a).2   We have repeatedly held that "[w]hether a

particular way is accessible to the public as invitees or

licensees, within the meaning of the statute, is a legal

conclusion, which we consider independently."    Commonwealth v.

Virgilio, 79 Mass. App. Ct. 570, 573 (2011).    Accord

Commonwealth v. Stoddard, 74 Mass. App. Ct. 179, 182 (2009);

Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549 (1996).     Of

course, it is for the trier of fact to determine the facts, but

it is our role to determine whether the facts, viewed in the

light most favorable to the Commonwealth, sufficiently support a


     2 Although this element is usually referred to as "public
way," a "public place" also suffices under the statute.
                                                                   7


finding that the defendant was operating a vehicle on a way or

place accessible to the public as invitees or licenses.     See

Commonwealth v. Brown, 51 Mass. App. Ct. 702, 709 (2001) (Brown)

("Whether the Commonwealth has proved, beyond a reasonable

doubt, that the defendant's impaired operation occurred on a

[public way or place] . . . constitutes a legal conclusion

rather than a factual finding").

    Here, the facts viewed in the light most favorable to the

Commonwealth established a public place, because members of the

public were permitted to access the parking lot.    The evidence

established that members of the public who were not staying at

the hotel were permitted to use the parking lot to visit the

restaurant, bar, shop, or beach.   At the time of the incident,

the restaurant and bar were opened to the public.   Cf.

Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007)

(defendant convicted of negligent operation for driving in

shopping center parking lot).

    The existence of a gatehouse does not negate the public

nature of the parking lot.   The gatehouse was unattended at the

time of the incident, but even an attended gatehouse would not

make a parking lot nonpublic where, as here, members of the

public are routinely permitted to drive by the gatehouse and

park in the parking lot.
                                                                      8


    At the time of the incident, the signs restricting parking

to hotel guests and beach club members were not on display.      At

night, the availability of parking was not an issue and thus

there were no restrictions.     In any event, the defendant's focus

on parking is misplaced.    A public place is not a place the

public is allowed to park, but rather a place that the public is

allowed to travel.     So long as the public is allowed to access

the place, even merely to drop off a passenger, it is a public

place.

    We are guided by Brown.     There, we determined that the

roadways through the grounds of an air force base located on the

Massachusetts Military Reservation were public ways because "a

considerable number of persons [were] authorized to, and

routinely [did]," travel on the roadways.     Brown, 51 Mass. App.

Ct. at 712.   Such travelers included military personnel and

their families, visitors to a national cemetery located on the

property, attendees and staff of a public school located on the

reservation, and those using a little league field located

there.   See id. at 707, 711.   Indeed, in Brown, the unattended

gatehouses at the entrance to the air force base had signs

indicating that the area was restricted to "authorized personnel

only."   Id. at 709.   We determined that the roads in the air

force base remained public ways because a considerable number of

persons were authorized to travel on the roads.     See id. at 712.
                                                                     9


Contrast Commonwealth v. Callahan, 405 Mass. 200, 204 (1989)

(area not public way because no member of public had permission

to use property and had access to property only as trespasser).

    As in Brown, the parking lot of the Sea Crest Hotel was

similarly accessible to members of the public wishing to use the

parking lot to visit the restaurant, bar, shop, or beach.       No

restrictive signage indicated that the property was closed to

the public at the time of the incident.    Moreover, the signs

placed during the day on busy weekends restricted only parking,

not access.   Accordingly, the trial judge heard sufficient

evidence to reasonably conclude that the parking lot in which

the defendant drove was a public place.

    4.   Sufficiency of impairment evidence.    "[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).    Here, viewing the evidence in the light most

favorable to the Commonwealth, there was sufficient evidence to

prove that the defendant was under the influence of alcohol

while driving.   The defendant exhibited physical signs of

intoxication and behaved erratically.     The employee observed the

defendant's driving slowly around the parking lot in a

suspicious manner.   When the employee confronted the defendant,

he observed that the defendant had a glazed look on his face and
                                                                   10


appeared aggressive.   The defendant lunged towards the employee

with clenched fists, screaming and making incoherent threats.

See Commonwealth v. Jewett, 471 Mass. 624, 636 (2015)

(defendant's belligerent behavior such as fighting with police

officer was evidence of intoxication).

    When a police officer arrived, he observed the defendant

driving around the parking lot, over marked parking rows, and

nearly striking a couple of parked vehicles.   The defendant was

unresponsive to the police officer's questions and "kept

repeating, 'Really? Really?'"   The officer observed that the

defendant's eyes were glassy and bloodshot and smelled an odor

of alcohol emanating from the defendant.   See Commonwealth v.

Rarick, 87 Mass. App. Ct. 349, 350 (2015) (officers'

observations that defendant's eyes were glassy and bloodshot and

that defendant had strong odor of alcohol was evidence of

impairment).   Moreover, the defendant appeared to be unsteady on

his feet and struggled to maintain his balance.   At various

times during the booking process, the defendant was swaying and

held onto the officer for balance.   See Commonwealth v.

Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (defendant's

"slurred speech, belligerent demeanor, strong odor of alcohol,

poor balance, and glassy, bloodshot eyes" were all evidence of

intoxication).   This evidence was sufficient to permit the trier
                                                                      11


of fact to find that the defendant was impaired.    See

Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).

    5.   Sufficiency of negligent operation evidence.      To prove

negligent operation, "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."   Ross, 92 Mass. App. Ct. at 379.   See

Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004).      "The

statute requires proof that the defendant's conduct might have

endangered the safety of the public, not that it, in fact, did."

Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 369 (2019).

Accordingly, negligent operation can be found "despite the

absence of a collision, near collision, or injury."     Ross, supra

at 379-380.    See Ferreira, 70 Mass. App. Ct. at 33-35.

    Here, the defendant's erratic driving and near collision

with parked vehicles was sufficient evidence for the trier of

fact to find that the lives or safety of the public might be

endangered.    See Commonwealth v. Daley, 66 Mass. App. Ct. 254,

256 (2006) (driving over fog line multiple times, straddling

breakdown lane, and narrowly missing hitting road work sign was

evidence of negligent operation).    The defendant travelled

slowly around the parking lot and drove over a curb, and a

police officer observed the defendant nearly hitting other

parked cars.    The defendant was also unable to comply with the
                                                                  12


police officer's orders to produce his license and registration

and failed to respond to the officer's questions about why he

was in the parking lot.   See Commonwealth v. Sousa, 88 Mass.

App. Ct. 47, 51 (2015) (sufficient evidence that defendant's

conduct might have endangered public where defendant's vehicle

rolled through stop sign, abruptly stopped and started, and

defendant appeared asleep behind wheel and did not comply with

police officer's commands).   And, of course, the defendant

appeared to be intoxicated.   See Ross, 92 Mass. App. Ct. at 380.

This is not a case where the Commonwealth relied upon only the

defendant's intoxication and a nonworking headlight or other

minor equipment issue to prove negligent operation.   See

Commonwealth v. Zagwyn, 482 Mass. 1020, 1021-1022 (2019).

Accordingly, there was sufficient evidence for the trier of fact

to find that the defendant operated his vehicle negligently so

that the lives or safety of the public might be endangered.     For

the foregoing reasons, the judgments are affirmed.

                                    So ordered.
