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14-P-492                                             Appeals Court

               COMMONWEALTH    vs.   MANUEL W. SOUSA.


                            No. 14-P-492.

      Middlesex.        February 4, 2015. - August 14, 2015.

             Present:   Katzmann, Meade, & Rubin, JJ.


Controlled Substances. Motor Vehicle, Operating under the
     influence, Operation. Statute, Construction.


     Complaint received and sworn to in the Malden Division of
the District Court Department on September 19, 2011.

    The case was heard by Dominic J. Paratore, J.


     Christopher L. Maclachlan for the defendant.
     Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.


    KATZMANN, J.    After a bench trial, a District Court judge

found the defendant guilty of operating a motor vehicle while

under the influence of drugs and negligent operation of a motor

vehicle.   On appeal, the defendant argues insufficient evidence

for both convictions.    We reverse the conviction of operating

while under the influence of drugs, concluding that that the
                                                                      2


Commonwealth presented insufficient evidence that the defendant

was under the influence of a prohibited substance, as defined

under the relevant statute, G. L. c. 94C, § 1.     We affirm the

conviction of negligent operation.

    Facts.   Under the familiar standard, see Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979), the judge could have

found the following.     On September 18, 2011, the defendant,

Manuel Sousa, was driving a motor vehicle down a public street

in the city of Malden.    A bystander observed his vehicle roll

past a stop sign without stopping and then stop suddenly in the

middle of an intersection.     The defendant, who appeared to be

asleep or "passed out," was leaning back in the driver's seat.

The bystander approached the vehicle, and the defendant sat up,

placed a device to his mouth, and then sped off.     The bystander

then called the police and, while waiting for someone to arrive,

observed the vehicle continuing to start and stop while

traveling on a side street.     When police Officer Philip Halloran

arrived, he approached the vehicle, which was parked in the

middle of a two-way street and had its engine running.     Officer

Halloran could see that the defendant was reclined in his seat

behind the steering wheel.     He saw the defendant reach down and

place an aerosol canister to his mouth and spray.    Officer

Halloran ordered the defendant to turn off the engine and to get

out of the vehicle.    The defendant did not acknowledge the
                                                                   3


command and instead placed the vehicle in drive.    Officer

Halloran drew his weapon and ordered the defendant to put the

vehicle in park.   The defendant, with a bewildered look on his

face, complied.    Officer Halloran ordered the defendant out of

the vehicle; he did not comply and did not appear to understand

the command.

     Officer Halloran retrieved two aerosol canisters from the

vehicle, including the one that the defendant drew to his mouth

and sprayed.   At trial, Officer Halloran testified that they

were computer cleaners, and he read aloud the contents of the

canister from its label.    The label stated that the canister

contained difluoroethane.

    Discussion.     1.   We first address the conviction of

operating a motor vehicle while under the influence of drugs.

General Laws c. 90, § 24(1)(a)(1), as appearing in St. 1994,

c. 25, § 3, provides, in pertinent part, that whoever operates a

motor vehicle on a public way "while under the influence of

. . . narcotic drugs, depressants or stimulant substances, all

as defined in section one of chapter ninety-four C, or the

vapors of glue shall be punished . . . ."    The Commonwealth

argues on appeal that the contents in the aerosol canister, from

which the defendant inhaled, fall within the scope of the

statute.   Appropriately abandoning its theory at trial that the

evidence supported that the defendant was driving under the
                                                                   4


influence of "vapors of glue," on appeal -- pointing to a

National Institutes of Health Web site -- the Commonwealth

instead contends that difluoroethane is the chemical equivalent

of ethylene fluoride, which, while not listed in G. L. c. 94C,

§ 1, is included as a proscribed substance in the motor vehicle

power of arrest statute, G. L. c. 90, § 21.1   The Commonwealth

contends that "it defies logic that the Legislature would afford

police the authority to arrest a driver for operating under the

influence of ethylene vapors, and identify such conduct as

criminal under § 21, yet prohibit the prosecution thereof under

§ 24."   Arguing that statutes should be read harmoniously, the

Commonwealth asserts that operating under the influence of

ethylene fluoride must also be a prosecutable offense under

G. L. c. 90, § 24(1)(a)(1).

     "The crime, which is legislatively created, does not

criminalize operation under the influence of all narcotics,

stimulants, or depressants, but only those 'defined in section

     1
       General Laws c. 90, § 21, provides in pertinent part:
"Any officer authorized to make arrests, provided such officer
is in uniform or conspicuously displaying his badge of office,
may arrest without a warrant and keep in custody for not more
than twenty-four hours . . . any person . . . who the officer
has probable cause to believe has operated or is operating a
motor vehicle while under the influence of intoxicating liquor,
marihuana or narcotic drugs, or depressant or stimulant
substances, all as defined in section one of chapter ninety-
four C, or under the influence of the vapors of glue, carbon
tetrachloride, acetone, ethylene, dichloride, toluene,
chloroform, xylene or any combination thereof . . . ." (emphasis
supplied).
                                                                      5


one of chapter ninety-four C.'    G. L. c. 90, § 24(1)(a)(1)."

Commonwealth v. Ferola, 72 Mass. App. Ct. 170, 170 (2008).       As

the defendant argues and the Commonwealth concedes, there is a

statutory omission in G. L. c. 90, § 24(1)(a)(1), and in G. L.

c. 94C, § 1:   the substance in issue, difluoroethane, is not

defined as a prohibited substance.

    "Our primary duty in interpreting a statute is 'to

effectuate the intent of the Legislature in enacting it.'"

Campatelli v. Chief Justice of the Trial Ct., 468 Mass. 455, 464

(2014), quoting from Water Dept. of Fairhaven v. Department of

Envtl. Protection, 455 Mass. 740, 744 (2010).    "Ordinarily,

where the language of a statute is plain and unambiguous, it is

conclusive as to legislative intent."    Thurdin v. SEI Boston,

LLC, 452 Mass. 436, 444 (2008), and cases cited.    Here, the

omission does not create an ambiguity.    The statute is

unambiguous and is, therefore, "conclusive as to legislative

intent."   Ibid.   Thus, we need not, as the Commonwealth argues,

look to other sections of G. L. c. 90 to properly effectuate the

intended legislative purpose.    See Board of Educ. v. Assessor of

Worcester, 368 Mass. 511, 513-514 (1975); Commonwealth v. Smith,

431 Mass. 417, 421 (2000).    See generally R.A. Katzmann, Judging

Statutes 3-5, 29-31 (2014).

    In fact, in 1971, the Legislature amended the statute and

eliminated several chemicals that had previously been defined in
                                                                    6


the statute; the relevant eliminated substance here is ethylene.

See St. 1971, c. 1071, § 4.   See also G. L. c. 90, § 24, as

amended by St. 1971, c. 1007.2   Quite apart from the concern that

inserting ethylene would be "inconsistent with this court's

traditional policy that we construe criminal statutes narrowly

against the Commonwealth," doing so "would be contrary to the

explicit direction of G. L. c. 90, § 24(1)(a)(1)."   Commonwealth

v. Green, 408 Mass. 48, 50 (1990).3   It is not the province of

the courts to insert or read into the statute a term that the

     2
       It appears that in 1963 both § 21 and § 24 bore the
identical list of proscribed substances, including vapors of
ethylene. In 1971, however, § 24 was amended to include certain
substances defined in c. 94C, § 1, but except for vapors of
glue, the last seven chemicals were excluded from this
amendment.
     3
       As noted, case precedent instructs that operating under
the influence of certain substances is meant to be criminalized,
while operating under others is not, and if the substance at
issue is not defined in G. L. c. 94C, § 1, as referenced by
G. L. c. 90, § 24(1)(a)(1), or if there is no evidence that the
substance is encompassed within a defined category prohibited by
statute, the defendant may not be convicted of the crime. See
Green, supra at 49 (conviction reversed where there was no
evidence that codeine was a narcotic drug as defined in G. L.
c. 94C, § 1); Commonwealth v. Finegan, 45 Mass. App. Ct. 921,
923 (1998) (defendant's conviction of operating under the
influence overturned because there was no evidence adduced at
trial that the drug at issue, heroin, was a narcotic drug as
defined in G. L. c. 94C, § 1); Ferola, 72 Mass. App. Ct. at 173-
174 (although there was ample evidence that the defendant was
operating a motor vehicle on a public way while under the
influence of central nervous system depressants, klonopin and
amitriptyline, the conviction was overturned because these
substances were not included in G. L. c. 94C, § 1; even if the
two substances fell into one of the categories of substances
included in the statute, the Commonwealth had not provided any
such proof).
                                                                    7


Legislature has seen fit to omit; if the Legislature wishes to

amend the statute, it can do so.   Pierce v. Christmas Tree

Shops, Inc., 429 Mass. 91, 93 (1999); Commonwealth v. Smith, 431

Mass. at 425.

      Finally, after concluding that the Commonwealth's statutory

argument cannot prevail, we also note that there is no evidence

in the record that ethylene fluoride is equivalent to ethylene,

the chemical listed in the motor vehicle power of arrest

statute.   Moreover, as has been noted, in asking this court to

determine that difluoroethane is the equivalent of ethylene

fluoride, the Commonwealth points to a National Institutes of

Health Web site.   It is thus asking us to take judicial notice

of an adjudicative fact at the appellate level; this we cannot

do.   See Green, supra at 50 (while a judge could have taken

judicial notice of the fact that codeine was a narcotic drug as

defined in G. L. c. 94C, § 1, it was inappropriate "to supply

[this] essential element of proof by taking judicial notice of a

fact at the appellate level").

      In sum, at trial the Commonwealth offered no evidence that

difluoroethane, the chemical that was contained in the canister

from which the defendant was inhaling, was the chemical

equivalent of ethylene fluoride, or that either of those

substances qualify as "glue" or any other prohibited substance
                                                                      8


defined in the statute.     The judgment of operating under the

influence of drugs is therefore reversed.

       2.   Next, we address the conviction for negligent operation

of a motor vehicle.     To prove that a defendant is guilty of

negligent operation under G. L. c. 90, § 24(2)(a), the

Commonwealth is required to establish beyond a reasonable doubt

that a defendant operated a motor vehicle on a public way in a

negligent manner that may have endangered the lives or safety of

the public.     See Commonwealth v. Duffy, 62 Mass. App. Ct. 921,

921 (2004); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 255

(2006).     The question is whether the defendant's driving had the

potential to cause danger to the public, not whether it actually

did.    See Commonwealth v. Constantino, 443 Mass. 521, 526-527

(2005); Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35

(2007).     The evidence showed that (1) the defendant's vehicle

rolled through a stop sign and stopped suddenly while sticking

out into an intersection; (2) the defendant appeared to be

asleep or "passed out" while behind the wheel of a running

vehicle on a public way; (3) the defendant's vehicle sped off

down the street, abruptly starting and stopping repeatedly; (4)

the defendant did not comply with and seemed to be unable to

comprehend a police officer's commands; and (5) the defendant

was observed by two witnesses putting an aerosol canister to his

mouth, all supporting an inference that what he was inhaling
                                                                    9


contributed to his unconscious state.   We conclude that there

was sufficient evidence to allow a rational trier of fact to

find, beyond a reasonable doubt, that the defendant negligently

operated a motor vehicle.

    Therefore, the judgment on the count for operating a motor

vehicle while under the influence of drugs is reversed, the

finding is set aside, and judgment shall enter for the

defendant.   The judgment on the count for negligent operation of

a motor vehicle is affirmed.

                                         So ordered.
