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SJC-11664

              COMMONWEALTH   vs.   RAZAK O. OYEWOLE.



                       December 18, 2014.


Motor Vehicle, Operation, Operating under the influence, License
     to operate. License. Notice.


     The defendant appeals from his conviction, after a jury-
waived trial, of operating a motor vehicle after his license had
been suspended for operating while under the influence of
alcohol. G. L. c. 90, § 23, third par. In a divided published
opinion, the Appeals Court affirmed the conviction.
Commonwealth v. Oyewole, 84 Mass. App. Ct. 669 (2014). We
granted further appellate review, limited to the sufficiency of
the evidence that Oyewole was notified of the license
suspension. 467 Mass. 1108 (2014). Because we conclude that
the evidence at trial was insufficient to prove this element
beyond a reasonable doubt, we reverse and direct the entry of
judgment for the defendant.

     Viewing the record in the light most favorable to the
Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), we briefly state the facts, which are more fully set
forth in the Appeals Court's opinion. Oyewole, supra at 670-
671. In October, 2009, the defendant admitted to sufficient
facts to support a finding of guilty on a charge of operating
while under the influence of liquor (OUI case). According to
the docket sheet from that case, his license was suspended for
sixty days. Less than sixty days later, a Wilmington police
officer, observing that a motor vehicle had its headlights off
at 12:30 A.M., stopped the vehicle. The defendant was the
driver and only occupant of the vehicle. The officer requested
the defendant's license, which the defendant produced. The
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officer confiscated the license and placed the defendant under
arrest.

     As the Appeals Court stated, the Commonwealth was obligated
to prove, beyond a reasonable doubt, "(1) that the defendant
operated a motor vehicle; (2) that at the time of that operation
the defendant's license was revoked or suspended; (3) that the
license suspension or revocation was pursuant to a violation of
one of the specified statutory sections (including [OUI] in
violation of G. L. c. 90, § 24[1][a]); and (4) that the
defendant was notified that his license had been suspended or
revoked." Oyewole, supra at 672, quoting Commonwealth v.
Deramo, 436 Mass. 40, 50 (2002). The evidence at this brief1
trial was sufficient to establish the first three elements, as
it showed that the defendant operated a motor vehicle while his
license was suspended for operating while under the influence.
As to the fourth element, however, the evidence presented at
trial, together with all reasonable and possible inferences that
might properly be drawn from it, was insufficient to permit a
reasonable fact finder to find, beyond a reasonable doubt, that
the defendant was notified of the license suspension.2 While the
docket sheet from the OUI case, which was in evidence, permits
an inference that the defendant was present when his license was
suspended, the Commonwealth did not offer any evidence
demonstrating that the suspension was communicated to him. The
docket sheet itself does not state that the defendant was

     1
       The transcript reflects that the presentation of evidence,
together with motions in limine and the defendant's motion for a
required finding of not guilty, took less than one hour. The
Commonwealth called two witnesses and offered two exhibits,
namely, certain records from the registry of motor vehicles,
which were offered solely to corroborate the defendant's
biographical information, and the docket sheet from the case
involving the prior charge of operating while under the
influence of liquor. The defendant presented no evidence.
     2
       While an inference drawn from circumstantial evidence
"need only be reasonable and possible and need not be necessary
or inescapable," e.g., Commonwealth v. Casale, 381 Mass. 167,
173 (1980), our task is to determine whether "the evidence
presented at trial, together with all reasonable and possible
inferences that might properly be drawn from it, was sufficient
to permit a rational [fact finder] to find beyond a reasonable
doubt the existence of every essential element of the crimes
charged." Commonwealth v. Arroyo, 442 Mass. 135, 139-140
(2004).
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notified of the suspension. The Commonwealth did not present
evidence that the judge in the OUI case announced the suspension
in open court.3 There is no evidence in the record that the
docket sheet was shown to the defendant or that any other
written notification was sent to him. Even on the assumption
that to do so was the regular practice when accepting a plea --
a proposition unsupported by the record -- the Commonwealth may
not rely on a presumption of regularity as a substitute for
evidence proving an element of its case beyond a reasonable
doubt. Cf. Commonwealth v. Giordano, 8 Mass. App. Ct. 590, 592
n.2 (1979), cert. denied, 446 U.S. 968 (1980), and cases cited
(in prosecution for escape, Commonwealth may not rely on
presumption of regularity to avoid proving lawfulness of
defendant's imprisonment). There was also no evidence that the
defendant acknowledged, at the time of the stop or at any other
time, that he was aware of the suspension.

     Moreover, the evidence showed that when he was stopped, the
defendant had his license in his possession and gave it to the
police officer.4 When a license is suspended in connection with
a conviction for operating while under the influence, G. L.
c. 90, § 24D, fourth par., requires that the license be
surrendered to the probation department. Here, however, the
defendant apparently did not surrender his license. A possible
reason for this is that nobody notified the defendant that his
license was suspended.

     In sum, the record contains no evidence demonstrating that
the defendant was notified of the license suspension, and some
evidence suggesting the contrary. The Commonwealth did not
carry its burden of proving every element of the offense beyond
a reasonable doubt.

                                   Judgment reversed.

                                   Finding set aside.

                                   Judgment for the defendant.


     3
       A transcript of the plea hearing might easily have
established this. However, no transcript was offered in
evidence at trial.
     4
       Nothing in the record suggests that this license was a
counterfeit, a duplicate, or anything else other than the
genuine license that had been suspended.
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     Stacy J. Silveira (George Ohlson, Jr., with her) for the
defendant.
     KerryAnne Kilcoyne, Assistant District Attorney, for the
Commonwealth.
