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14-P-1926                                            Appeals Court

                COMMONWEALTH   vs.   AMY B. BELTRANDI.


                           No. 14-P-1926.

      Hampshire.       December 14, 2015. - March 14, 2016.

            Present:   Grainger, Hanlon, & Agnes, JJ.


Motor Vehicle, Operating under the influence, Operation.
     Practice, Criminal, Required finding, Argument by
     prosecutor, Witness. Evidence, Absence of witness.
     Witness.



     Complaint received and sworn to in the Eastern Hampshire
Division of the District Court Department on May 29, 2012.

    The case was tried before John M. Payne, Jr., J.


     Tara B. Ganguly for the defendant.
     Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.


    AGNES, J.    In this appeal from her conviction of operating

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

alcohol in violation of G. L. c. 90, § 24(1)(a)(1), the

defendant raises two issues.    First, she argues that the

Commonwealth presented insufficient evidence to permit the jury
                                                                      2


to find beyond a reasonable doubt that she operated the vehicle.

While the question is a close one, we conclude that on the basis

of the circumstantial evidence presented by the Commonwealth,

the jury were entitled to draw a reasonable inference that the

defendant was the operator of the vehicle.    Second, she argues

that the prosecutor's closing argument was improper because in

the absence of a missing witness instruction, the prosecutor

should not have urged the jury to draw an adverse inference

against the defendant due to the absence of a potential witness.

We agree with the defendant that the prosecutor's closing

argument was improper, and conclude that it constituted

prejudicial error.   Accordingly, we reverse.

    Background.    Viewing the evidence in the light most

favorable to the Commonwealth, the jury could have found that at

approximately 2:30 A.M. on May 29, 2012, a resident of Ware

awoke to see a truck (later identified as a 2006 Toyota Tacoma

pickup truck) stopped on Route 9 (Belchertown Road).     Two-thirds

of the vehicle was in the road and about one-third was over the

fog line.   The resident placed a telephone call to 911.    Officer

Scott Underwood of the Ware police department arrived soon

thereafter.   Initially, he saw the truck in the westbound lane,

with its engine running and its lights out.     He noticed that the

windows were fogged up.    He did not see any movement inside the

vehicle.    While standing at the vehicle's back bumper, he saw "a
                                                                     3


female party in the driver's seat, male party in the passenger

seat."1 Officer Underwood rapped on the fogged up window on the

driver's side several times before the defendant, the person

seated in the driver's seat, rolled down the window.    The

defendant and her companion were only partially clothed.      The

parties dressed at the officer's request.   The defendant stated

that she and her companion were on their way home from a bar

which she identified correctly by name, but incorrectly located

in Chicopee.   The defendant told Officer Underwood that she and

her companion had been engaged in "sexual activity."   Based on

his observations of the defendant while she was seated inside

the vehicle and later after she exited and performed several

field tests, Officer Underwood formed the opinion that she was

intoxicated and placed her under arrest.    Officer Underwood also

testified that the vehicle was registered to the defendant's

husband, who was not the male companion in the vehicle.2



     1
       When asked if he saw the parties moving, he testified that
"[a]s I approached the parties were separating."
     2
       Defense counsel objected that this testimony was
inadmissible hearsay, and explained why its admission as
substantive evidence would be prejudicial to the defendant.
Neither the prosecutor nor the judge identified an applicable
hearsay exception that would make such testimony admissible.
The judge overruled the defendant's objection. The fact that
the defendant testified that the truck belonged to her husband
does not make Officer Underwood's testimony admissible. We
assume that if the Commonwealth chooses to offer evidence of the
vehicle's registration at a future trial, it will do so on the
                                                                     4


     At trial, the defendant did not dispute that the vehicle

had been operated on a public way, or that she was intoxicated

at the time of her arrest, but instead challenged whether the

Commonwealth proved that she had operated the vehicle.3    The

defendant's companion was living in California at the time of

trial, and was not available as a witness for either party.

     Discussion.   1.   Standard of review.   We review the denial

of a motion for a required finding of not guilty by examining

the evidence, along with permissible inferences from that

evidence, in the light most favorable to the Commonwealth and

determine whether a reasonable jury could find each essential

element of the crime beyond a reasonable doubt.     Commonwealth v.

Penn, 472 Mass. 610, 618-619 (2015).    "To survive a motion for a

required finding, it is not essential that the inferences drawn


basis of competent evidence.   See Mass. G. Evid. § 803(8)
(2015).
     3
       Apart from Officer Underwood and the resident who had
called 911, the defendant was the only other witness who
testified at trial. She stated that she and her companion were
at a club in South Hadley earlier that evening. They were
drinking alcoholic beverages. When it came time to leave, she
testified that she asked her companion to drive because she was
intoxicated. She also testified that after leaving the bar he
stopped the vehicle and she got on top of him to have
intercourse. She was facing him with her back to the steering
wheel. She testified that when she saw the blue lights of
Officer Underwood's cruiser, she raised herself up and her
companion slid over to the passenger seat because "[i]t was a
whole lot easier access for him to get into the passenger seat
than it was me at that point in the positioning that I was in."
The defendant denied that she had operated the vehicle at any
time that evening after leaving the bar.
                                                                    5


are necessary inferences.   It is enough that from the evidence

presented a jury could, within reason and without speculation,

draw them."   Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255,

257 (1999).   This principle is no less true in a case like this

in which proof of an essential element of the offense

(operation) rests entirely on circumstantial evidence.   See

Commonwealth v. Platt, 440 Mass. 396, 401 (2003).

    2.    Sufficiency of the evidence to prove operation.    "An

individual 'operates' a motor vehicle within the meaning of

G. L. c. 90, § 24, 'when, in the vehicle, he intentionally does

any act or makes use of any mechanical or electrical agency

which alone or in sequence will set in motion the motive power

of that vehicle.'"   Commonwealth v. Ginnetti, 400 Mass. 181, 183

(1987), quoting from Commonwealth v. Uski, 263 Mass. 22, 24

(1928).   See Commonwealth v. Eckert, 431 Mass. 591, 599 (2000)

(intentional act of starting the vehicle constitutes operation);

Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994)

(intoxicated driver asleep in vehicle with key in ignition and

engine running is operating the vehicle); Commonwealth v.

McGillivary, 78 Mass. App. Ct. 644, 645-647 (2011) (placing the

key in the ignition and turning the electricity on without

starting the engine is operation).

    Direct evidence that the defendant operated the vehicle is

not required.   Commonwealth v. Woods, 414 Mass. 343, 354-355,
                                                                  6


cert. denied, 510 U.S. 815 (1993).   "A web of convincing proof

can be made up of inferences that are probable, not necessary."

Commonwealth v. Hilton, 398 Mass. 63, 67 (1986), quoting from

Commonwealth v. Best, 381 Mass. 472, 483 (1980).4   However, an


     4
       For cases in which proof of operation was based entirely
or predominantly on circumstantial evidence, see Commonwealth v.
Smith, 368 Mass. 126, 127-129 (1975) (there was only one person
inside the vehicle that left the scene of an accident; a vehicle
belonging to the defendant was parked outside his sister's home
within one hour of the crime, had a warm radiator and was
damaged, having on it red paint which appeared to be the same
color as one of the vehicles that had been struck, and the
defendant made a false report to the police that his vehicle had
been stolen); Commonwealth v. Hilton, 398 Mass. at 65 (the
defendant was alone inside an automobile parked half on the
street and half on the sidewalk, with its lights and engine off;
the defendant appeared to be asleep with her feet on the floor
near the brake and accelerator pedals; the keys were in the
ignition; the defendant told the police she was on her way back
to Lynn after dropping off a friend in Reading); Commonwealth v.
Otmishi, 398 Mass. 69, 71 (1986) (the defendant was found alone
in the automobile, which was parked, askew in the street,
several feet from the curb, with the lights on and motor
running; the defendant told police he had come from a bar some
distance away); Commonwealth v. Platt, 440 Mass. at 397-399,
401-403 (the defendant's vehicle was found upside down on a
person's front lawn; the defendant admitted that he had been
driving the car within one hour of its discovery; the defendant
reported his vehicle stolen five and one-half hours later and
gave two conflicting accounts of the theft); Commonwealth v.
Cromwell, 56 Mass. App. Ct. 436, 437-439 (2002) (a car
registered to the defendant struck another vehicle in the rear;
the defendant was "shaking all over"; the defendant told the
police that the vehicle that caused the accident belonged to
him); Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006)
(there was sufficient evidence of operation where the engine was
still warm, the defendant had keys, the defendant was registered
owner, appeared intoxicated, agreed to and complied with
sobriety tests, and no evidence indicated that someone else
operated the car); Commonwealth v. Congdon, 68 Mass. App. Ct.
782, 782-784 (2007) (no one was inside the vehicle, which was
found by the side of the road with its engine running but
                                                                    7


inference from circumstantial evidence that a person was the

operator of a vehicle is not reasonable if the fact finder must

resort to "speculation, conjecture or surmise."   Commonwealth v.

Shea, 324 Mass. 710, 714 (1949).

    The defendant contends that this case is like those cases

in which the presence of a second person in the vehicle renders

the inference that the defendant was the operator unreasonable.

For example, in Commonwealth v. Mullen, 3 Mass. App. Ct. 25

(1975), the defendant and a companion were traveling north on a

four-lane highway in Hingham in an automobile that suddenly

veered across the center dividing line, crossed the two lanes on

the other side, and struck a concrete fence.   The defendant, who

was intoxicated, was found about ten to fifteen feet outside the

vehicle and over the side of an embankment, slightly to the rear

of the right rear wheel.   The defendant's companion did not

survive the crash.   He was "in a U-shape, his right foot being


disabled by two flat tires; responders observed the defendant
emerge from nearby woods; the defendant stated she was coming
from a friend's house in Sherborn and was on her way to Canton
or Milton; no one else besides the defendant emerged from the
woods or was in the vicinity); Commonwealth v. Flanagan, 76
Mass. App. Ct. 456, 457-458, 464 (2010) (the defendant was found
on the front seat floor of an SUV which crossed lanes and struck
vehicles headed in the opposite direction; she was the sole
occupant, no responder could open either of the front doors to
the SUV, and the jaws of life were required to remove her). See
also Commonwealth v. Henry, 338 Mass. 786 (1958); Commonwealth
v. Rand, 363 Mass. 554, 561-562 (1973) (circumstantial evidence
sufficient to prove operation); Commonwealth v. Geisler, 14
Mass. App. Ct. 268, 273 (1982), and cases cited (same).
                                                                     8


out under the passenger door, his left foot under the engine;

his head and shoulders were up in the framework of the car, his

head being against the floor."    Id. at 26.    The defendant

admitted that he owned the automobile, and that he had driven it

earlier in the evening.   He denied knowing the victim even

though it turned out they were roommates.      The defendant also

told the police that he had been walking along the side of the

road and had been struck by an automobile.      The Commonwealth

argued that the defendant's ownership of the vehicle and his

admission that he had driven it earlier that evening, coupled

with the evidence of his consciousness of guilt, permitted the

jury to infer that he had operated the vehicle at the time of

the crash.   We rejected this argument, noting that the evidence

regarding the position of the defendant and the victim after the

crash suggested a contrary inference (that the defendant was

ejected from the passenger seat), and concluded that in such

circumstances, neither inference could be established beyond a

reasonable doubt.    Id. at 27.   See Commonwealth v. Leonard, 401

Mass. 470 (1988).5


     5
       Although Leonard is a case in which the Commonwealth
relied on an uncorroborated statement made by the defendant, it
illustrates the effect that the presence of a second person may
have on the reasonableness of the inference of operation from
circumstantial evidence. In Commonwealth v. McNelley, 28 Mass.
App. Ct. 985, 987 (1990), we explained the reasoning in Leonard
as follows: "In Leonard, the defendant was fighting with his
wife on the side of the road near a parked automobile when he
                                                                    9


     Here, unlike in Mullen and Leonard, the presence of a

second person did not render the inference that the defendant

was the operator of the vehicle unreasonable.   This is not a

case in which the evidence limited the jury to "a choice

between, at the very most, equal inferences."   Commonwealth v.

Mullen, 3 Mass. App. Ct. at 27, citing Commonwealth v. Fancy,

349 Mass. 196, 201 (1965).   In the present case, Officer

Underwood testified that when he approached the vehicle the

defendant was in the driver's seat.6   The defendant was severely



was first observed. The defendant was shouting at his wife, who
had possession of the automobile keys, 'Give me the keys,' and
'Give me back the f––––-- keys.' When the police arrived, they
observed the defendant sitting in the front seat of the
automobile with his wife on his lap. The defendant was trying
to put the key in the ignition and his wife was trying to stop
him. After the defendant was removed from the automobile, his
wife asked for her cigarettes, and they were retrieved from the
floor on the passenger side. The court held the 'inference to
be drawn from the location of the cigarettes [was] speculative,
especially since there was a struggle inside the vehicle.'
[Leonard, 401 Mass.] at 473. It also stated that '[t]he
defendant's demand that his wife "give . . . back" the keys
[was] ambiguous and speculative also, in light of the fact that
the defendant had been allowed to operate the vehicle earlier in
the day.'"
     6
       Officer Underwood testified that "[a]s I exited my cruiser
and approached the vehicle I observed the interior of the
vehicle, observing a female party in the driver's seat, male
party in the passenger seat." When asked if the two people were
moving around, he testified that "[a]s I approached the parties
were separating." In view of the defendant's testimony about
what was occurring at the time Officer Underwood approached the
vehicle and where she and her companion were and had been inside
the vehicle, it is not unreasonable to interpret Officer
Underwood's testimony as consistent with the defendant's
account. However, that is not the test we apply when reviewing
                                                                   10


intoxicated, but her companion was not.7   "The manner in which

the automobile was parked, half on the street and half on the

sidewalk, was evidence that it may have been driven by a driver

under the influence of alcohol."   Commonwealth v. Hilton, 398

Mass. at 68.   As we said in Commonwealth v. Latney, 44 Mass.

App. Ct. 423, 426 (1998), the jury here were not required to

make a "leap of conjecture" to infer the defendant was the

operator of the vehicle.

     As noted above, the question whether the jury could

reasonably infer that the defendant was the operator of the

vehicle is a close one.    However, while conflicting inferences

as to who was the driver of the truck were possible, where, as

in this case, an inference that the defendant was the operator

of the vehicle is both possible and reasonable, our

responsibility to view the evidence in the light most favorable



the sufficiency of the evidence. Based on the evidence, it was
not unreasonable for the jury to draw a contrary inference that
the defendant was in the driver's seat the entire time. See
Commonwealth v. Latimore, 378 Mass. 671, 678-679 (1979). See
also Commonwealth v. Merry, 453 Mass. 653, 663 (2009) ("[T]the
principle . . . regarding evidence tending equally to support
one proposition over the other applies only if the circumstances
require[] a leap of conjecture with respect to essential
elements of the crime charged") (quotation and citations
omitted).
     7
       The evidence was that the defendant's blood alcohol
content was 0.35 percent. The defendant testified that she had
"a lot" to drink that evening, and by comparison her companion
had "[v]ery little."
                                                                   11


to the Commonwealth requires that the jury be permitted to

"determine where the truth lies."   Commonwealth v. Platt, 440

Mass. at 401 (citation omitted).    See Commonwealth v. Merry, 453

Mass. 653, 660-663.   The defendant's motion for a required

finding of not guilty was properly denied.8

     3.   Prosecutor's closing argument.   The evidence at trial

was that the defendant's companion on the night she was arrested

had moved to California and that she had not had any contact

with him since a day or two following her arrest.   The record

does not indicate that the Commonwealth requested that the judge

give a missing witness instruction prior to the closing

arguments.9   In his closing argument, the prosecutor asked

rhetorically, "[I]sn't it convenient" that the witness was not

     8
       This is not a case in which the evidence presented by the
Commonwealth deteriorated as a result of the evidence presented
by the defendant to the extent that the defendant's motion for a
required finding of not guilty at the close of all the evidence
should have been allowed. "Because the credibility of the
defendant's witness[] and the weight of [her] testimony are
issues for the jury to decide, the Commonwealth's case could not
have deteriorated where the defendant's evidence at trial turned
solely on the credibility of [her] witness[]." Commonwealth v.
Platt, 440 Mass. at 404.
     9
       The prosecutor did not lay a foundation for a missing
witness instruction. Based on the evidence in this case, it is
reasonable to presume that the defendant's companion would have
been able to give important testimony in the case. However, the
prosecutor did not demonstrate that the witness was (1)
available to the defendant, (2) not hostile to the defendant,
and (3) that there was no logical or tactical explanation for
why the defendant did not call him. Mass. G. Evid. § 1111(b)
(2015).
                                                                    12


present, and "[w]hat else would he know that we may reasonably

infer from the evidence that came in?"    At the close of this

argument, defense counsel objected, pointing out that the

prosecutor was aware that the witness in question was in

California and was not available.   The prosecutor informed the

judge that he was not asking for a missing witness instruction,

but contended that he was still entitled to argue that the jury

should draw an adverse inference against the defendant due to

the absence of the witness.   Defense counsel requested a

curative instruction.   The judge effectively overruled the

defendant's objection by indicating that he would not give a

missing witness instruction, and would not give a curative

instruction.

    "The missing witness argument and the missing witness

instruction are interrelated."   Mass. G. Evid. § 1111 note (a),

at 402 (2015).   The argument is "a powerful accusation -- that a

party is withholding evidence that would be unfavorable -- and

that is why we regulate it closely and require judges to assess

very carefully whether to give the instruction and to permit the

argument in a given case."    Commonwealth v. Saletino, 449 Mass.

657, 673 (2007).   For this reason, the preferred practice is for

counsel and the trial judge to discuss the matter at the charge

conference and prior to closing arguments.     Commonwealth v.

Williams, 450 Mass. 894, 907 (2008).     Accord Commonwealth v.
                                                                    13


Pena, 455 Mass. 1, 16-17 (2009).   See also Commonwealth v.

Schatvet, 23 Mass. App. Ct. 130, 134-135 (1986); Commonwealth v.

Smith, 49 Mass. App. Ct. 827, 831 n.6 (2000).

    This case is analogous to Commonwealth v. Pena, supra,

where defense counsel asked the jury, in the absence of a

missing witness instruction by the trial judge, "Where is that

expert?" and argued that the prosecutor's failure to call an

expert witness suggested that such witness could not rebut the

defense expert's testimony.   455 Mass. at 15-16.   In this case,

the prosecutor's rhetorical questions improperly invited the

jury to speculate as to the content of evidence not produced at

trial.   See Saletino, 449 Mass. at 672 n.22.   See also Mass. G.

Evid. § 1113(b)(3) & note (2015) (guidelines for closing

arguments).

    We apply the prejudicial error standard.    "An error is not

prejudicial if it did not influence the jury, or had but slight

effect; however, if we cannot find with fair assurance, after

pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error, then it is prejudicial."   Commonwealth v.

Misquina, 82 Mass. App. Ct. 204, 207 (2012) (quotation and

citations omitted).   In view of our assessment that this was a

close case in which the jury were presented with circumstantial

evidence from which two conflicting inferences could be drawn --
                                                               14


one consistent with the defendant's guilt and one consistent

with her innocence -- we cannot say that the prosecutor's

improper argument did not have a substantial effect on the

outcome.

    For the foregoing reasons, the judgment is reversed and the

verdict is set aside.

                                   So ordered.
