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13-P-1883                                                 Appeals Court

                  COMMONWEALTH   vs.   KEITH R. RARICK.


                            No. 13-P-1883.

            Berkshire.     January 29, 2015. - May 8, 2015.

               Present:   Kafker, Grainger, & Agnes, JJ.


Motor Vehicle, Operating under the influence. Practice,
     Criminal, Required finding. Intoxication. Evidence,
     Intoxication.



     Complaint received and sworn to in the Northern Berkshire
Division of the District Court Department on January 4, 2013.

    The case was tried before Rita S. Koenigs, J.


     John O. Mitchell for the defendant.
     Megan L. Rose, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.      The defendant, Keith R. Rarick, was convicted of

operating a motor vehicle while under the influence of

intoxicating liquor, second or subsequent offense, in violation
                                                                     2


of G. L. c. 90, § 24(1)(a)(1).1   On appeal, the defendant

contends that during the trial of the underlying offense, at the

close of the Commonwealth's case, his motion for a required

finding of not guilty should have been allowed because the

evidence that he was under the influence of alcohol was not

sufficient to warrant a finding by the jury that this element

had been proved beyond a reasonable doubt.    Because we conclude

that the evidence was sufficient both at the close of the

Commonwealth’s case and at the close of the evidence, we affirm.

     Background.   a.   The Commonwealth's case.   While on patrol

at approximately 3:04 A.M. in the early morning of January 1,

2013, special police Officer David Sherman of the Williamstown

police department was traveling northbound on Route 7 in a

marked cruiser when he passed the defendant's vehicle headed

southbound in the opposite direction.    Based on his mounted

directional radar system, which he had calibrated earlier that

day, Officer Sherman determined that the defendant's vehicle was

traveling fifty-eight miles per hour in a clearly marked forty-


     1
       After the jury returned a verdict of guilty of the
underlying offense of operating a motor vehicle while under the
influence of intoxicating liquor, the defendant pleaded guilty
to the second offense portion of the complaint in accordance
with the procedure set forth in G. L. c. 278, § 11A. The judge
sentenced the defendant to a two-year term of probation, with
conditions that included attendance at a fourteen-day,
residential alcohol treatment program, and fines and fees
totaling over $1,400.
                                                                    3


five mile per hour speed zone.2   Officer Sherman activated his

cruiser's blue lights and pulled the vehicle over without

incident in front of the Waubeeka Golf Course.

     When he approached the driver's window, Officer Sherman saw

two people in the front seats of the vehicle:     the defendant,

who was driving, and a woman in the passenger seat, who was

identified as Diana Dawley, the defendant's girl friend. The

officer's first observation was that he could "detect a strong

odor of alcoholic beverage in the vehicle, . . . [and that] the

defendant [had] glassy, bloodshot eyes."   Officer Sherman asked

the defendant if he had been drinking anything.    Initially, the

defendant told the officer that "he had a few," and a few

minutes later the defendant stated that "he had had a six-pack

with his last beer being at 1:00 A.M."

     At this point, the officer asked the defendant to step out

of the vehicle.   Dawley remained inside the vehicle.   The

defendant is approximately six feet, three inches tall and

weighed approximately 230 pounds.   Once the defendant was

outside the vehicle, Officer Sherman "could definitely see that

[the defendant's] eyes were glassy and bloodshot," and he

observed that the defendant had a "moderate odor of alcoholic

     2
       Route 7 is also known as Cold Spring Road and is a State
highway in the town of Williamstown. There are signs posting
the speed limit at forty-five miles per hour, yield signs, and a
warning light in the proximity of the location where Officer
Sherman made this observation.
                                                                      4


beverage coming from him."     The defendant was chewing gum, which

"seemed to mask some of the odor."     The defendant remained

outside the vehicle and under observation by Officer Sherman for

approximately ten minutes, after which time the officer came to

the conclusion that the defendant was intoxicated and placed him

under arrest.   There is no evidence that the defendant was asked

to perform or performed field sobriety tests.     The evidence

indicates that when the officer approached the window of the

defendant's vehicle, the defendant had his driver's license and

vehicle registration ready.     When asked to get out of the

vehicle, the officer did not observe that the defendant had a

problem doing so.    The defendant was not swaying or staggering,

and he did not have to lean against his vehicle for balance.

     b.    The defendant's case.   The defendant called Diana

Dawley, the passenger on the night in question, as his only

witness.   She testified that in keeping with his customary

practice, the defendant got up very early in the morning of the

day prior to the arrest.     That evening, she and the defendant

attended a cousin's New Year's Eve party in Vermont.     The

defendant brought a twelve-pack of light beer to the party.        She

testified that prior to driving to the party, they decided the

defendant would stop drinking early in anticipation of driving

home.   They arrived at the party at about 7:30 P.M.    They had a

full dinner.    She testified that during the evening she observed
                                                                       5


the defendant drink some beer and some water.       Dawley testified

that she observed that the defendant stopped drinking after the

toast at midnight.     She also testified that she had six beers

during the party.     They left the party at approximately 2:30

A.M.    Dawley further testified that she had no concerns about

the defendant's ability to drive when they left the party.

       Discussion.   a.   Standard of review.   "In evaluating the

sufficiency of the Commonwealth's evidence, we consider the

evidence introduced up to the time that the Commonwealth rested

and the defense filed its first motion for a required finding of

not guilty."    Cramer v. Commonwealth, 419 Mass. 106, 112

(1994).    Under the familiar Latimore standard, see Commonwealth

v. Latimore, 378 Mass. 671, 676–677 (1979), when we review the

evidence that was presented at trial to determine if it was

sufficient, "we do not weigh the supporting evidence against

conflicting evidence."     Commonwealth v. Merry, 453 Mass. 665,

660 (2009).    Our responsibility is to view the evidence in the

light most favorable to the Commonwealth and to consider whether

the evidence, including all reasonable and possible inferences,

was sufficient to enable any rational trier of fact to "infer

the existence of the essential elements of the crime charged."

Commonwealth v. Latimore, supra at 677, quoting from

Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).       "[T]he

evidence of a defendant's guilt may be primarily or entirely
                                                                    6


circumstantial."    Commonwealth v. Lao, 443 Mass. 770, 779

(2005).

     b.   Sufficiency of the evidence of impairment.   "[I]n a

prosecution for operating a motor vehicle while under the

influence of intoxicating liquor, 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.    The Commonwealth need not prove that the

defendant actually drove in an unsafe or erratic manner, but it

must prove a diminished capacity to operate safely."

Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).    "Proof of

drunkenness is not required."    Commonwealth v. Sudderth, 37

Mass. App. Ct. 317, 321 (1994).3   Further, factors other than

alcohol may also contribute to the defendant's diminished

capacity.    "It is not necessary that alcohol be the sole or

exclusive cause.    It is enough if the defendant's capacity to

operate a motor vehicle is diminished because of alcohol, even

though other, concurrent causes contribute to that diminished

capacity."    Commonwealth v. Stathopoulos, 401 Mass. 453, 457

     3
       In Commonwealth v. Lyseth, 250 Mass. 555, 558 (1925),
quoting from Cutter v. Cooper, 234 Mass. 307, 317-318 (1920),
the court observed that "[w]hatever difficulties there may be in
framing with precision a definition of the extent of inebriety
which falls short of and which constitutes drunkenness, there is
a distinction between that crime on the one hand and merely
being under the influence of liquor on the other hand, which is
recognized in common speech, in ordinary experience, and in
judicial decisions."
                                                                   7


(1988).   See Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 74-75

(2010) (impairment due to consumption of alcohol and

prescription medication).4

     Although in the present case there was no evidence of

erratic operation or a collision, and Officer Sherman did not

direct the defendant to perform any of the customary field

sobriety tests,5 the evidence that the defendant had consumed six


     4
       In Commonwealth v. Morse, 468 Mass. 360, 378 (2014), the
defendant challenged the sufficiency of evidence to convict him
of misdemeanor homicide while operating a vessel under the
influence of alcohol or drugs. The defendant operated a
motorboat on a lake and struck a kayak containing a father and
son, killing the child and seriously injuring the father. The
evidence included statements by the defendant and another that
the defendant had consumed approximately four beers and had
smoked "one or two hits" of marijuana on at least two separate
occasions in the roughly four-hour period preceding the
collision. There was evidence that immediately after the
accident the defendant's eyes were not red or bloodshot, his
speech was not slurred, and there was no odor of alcohol coming
from him. Id. at 363. In addition, the defendant successfully
completed field sobriety tests. A breathalyzer test
administered to the defendant three hours after the collision
revealed a blood alcohol percentage of 0.00. Id. at 363, 378.
In rejecting the argument that the evidence of impairment due to
alcohol was insufficient, the Supreme Judicial Court explained
that the absence of any direct evidence of the defendant's
impairment did not diminish the significance of the evidence
that the defendant had consumed alcohol and marijuana. Id. at
378. Furthermore, the court added that based on the manner in
which the defendant operated his boat, including the collision,
"[t]he jury could have inferred . . . that such consumption had
diminished his 'judgment, alertness, and ability to respond
promptly and effectively to unexpected emergencies.'" Id. at
378, quoting from Commonwealth v. Connolly, 394 Mass. at 173.
     5
       Field sobriety tests are useful in these cases because
"[a] lay juror understands that intoxication leads to diminished
balance, coordination, and mental acuity from common experience
                                                                   8


beers in the hours before he was stopped and the officer's lay

witness opinion testimony that the defendant was intoxicated,6

along with the evidence that he was speeding in an area where

the speed limit was clearly marked, were sufficient to warrant a

finding by the jury that the defendant's consumption of alcohol

diminished his ability to operate his vehicle safely.     See

Commonwealth v. Cowels, 425 Mass. 279, 286 (1997); Commonwealth

v. Moquette, 439 Mass. 697, 702 (2003).   See also Commonwealth

v. Atencio, 12 Mass. App. Ct. 747, 750-751 (1981); Commonwealth

v. Sudderth, 37 Mass. App. Ct. at 321.    Contrast Commonwealth v.

Daniel, 464 Mass. 746, 756-757 (2013) (although officer smelled

odor of burnt marijuana and recovered two small bags of

marijuana, "the Commonwealth elicited no testimony that [the

driver] showed any signs of impairment during their encounter").



and knowledge." Commonwealth v. Sands, 424 Mass. 184, 188
(1997). However, typical field sobriety tests do not supply the
basis for a scientific opinion about whether a person is under
the influence of alcohol or the level of intoxication but,
instead, supply the basis for a lay witness opinion like the
opinion expressed by Officer Sherman in this case. See
Commonwealth v. Brown, 83 Mass. App. Ct. 772, 774 n.1 (2013).
     6
       The Supreme Judicial Court has defined the boundary
between permissible lay witness opinion testimony that a person
is intoxicated (or words to that effect), whether the witness is
a police officer or a civilian, see Mass. G. Evid. § 704 (2015),
and testimony that impermissibly expresses an opinion that the
defendant's capacity to operate a motor vehicle safely was
diminished by the consumption of alcohol, a question reserved
exclusively for the fact finder. See Commonwealth v. Canty, 466
Mass. 535, 544 (2013). That boundary was not violated in this
case.
                                                                    9


    The defendant's contention reduces to a claim about the

weight of the evidence. However, the weight of the evidence is

not the yardstick we use to test whether the evidence satisfies

the requirement of proof beyond a reasonable doubt.     See

Commonwealth v. Cullen, 395 Mass. 225, 231 n.4 (1985);

Commonwealth v. Orben, 53 Mass. App. Ct. 700, 704 (2002).     The

question we ask is not whether a reasonable person would

conclude that the Commonwealth's proof was sufficient, but

instead whether "any rational trier of fact" would reach that

conclusion.   Latimore, 378 Mass. at 677, quoting from Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979).   "This familiar standard

gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to

ultimate facts."   Jackson v. Virginia, supra at 319.

    Conclusion.    The essential teaching of Commonwealth v.

Connolly, 394 Mass. at 172, that governs our assessment of the

evidence in this case is that the offense of operating a motor

vehicle on a public way while under the influence of

intoxicating liquor requires the Commonwealth to prove both that

the defendant consumed alcohol and that his capacity to drive

safely was impaired, but it does not require the Commonwealth to

"prove the defendant actually drove unskillfully or carelessly."

Here, the evidence that the defendant had consumed at least six
                                                                  10


beers in the hours before he was stopped, that a moderate odor

of an alcoholic beverage was coming from his person, that his

eyes were red and glassy, and that he was speeding while driving

on a road where the posted speed limit was clearly marked was

sufficient to permit a rational fact finder to infer that he was

operating while under the influence of intoxicating liquor.     It

is not our function to weigh the evidence or to opine whether we

would have reached the same result as the jury.7

                                   Judgment affirmed.




     7
       During the defendant's case, his girl friend testified
that the defendant got up for work on the day in question at
4:00 A.M., that the alcoholic beverage they brought to the party
was a twelve-pack of an "ultra-light" beer, that the defendant
consumed a large amount of food during the evening, that she
"had a good buzz" when they left the party, and that she had no
concern about the defendant's ability to drive safely. However,
she also testified on cross-examination that when they were
stopped she told the officer, "I'm worse than he is." To the
extent that some of her testimony may be regarded as
exculpatory, it does not mean that the Commonwealth's case
deteriorated for purposes of the defendant's motion for a
required finding made at the close of the evidence. See
Commonwealth v. Basch, 386 Mass. 620, 622 n.2 (1982). The jury
were entitled to disregard the girl friend's exculpatory
testimony, or assign only little weight to it.
