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13-P-1978                                             Appeals Court

                COMMONWEALTH   vs.   KENNETH I. NORMAN.


                             No. 13-P-1978.

            Worcester.     January 8, 2015. - May 8, 2015.

               Present:   Grainger, Brown, & Milkey, JJ.


Motor Vehicle, Operating under the influence, License to
     operate. License. Notice. Registrar of Motor Vehicles,
     Records. Practice, Criminal, Required finding.



     Indictments found and returned in the Superior Court
Department on November 14, 2012.

     The cases were tried before David Ricciardone, J.


     Nelson P. Lovins for the defendant.
     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.


     MILKEY, J.    Following jury and jury-waived trials in

Superior Court, the defendant was convicted of operating under

the influence of intoxicating liquor (OUI) while under a license
                                                                      2


suspension for a prior OUI. 1   G. L. c. 90, § 23.   On appeal, the

defendant argues primarily that the evidence was insufficient to

support that conviction.   He makes no challenge to the

sufficiency of the evidence that he committed an OUI, that at

the time he did so his license was suspended, and that the

suspension at issue was for a prior OUI.    Instead, he targets

the sufficiency only of the evidence that he was notified of the

suspension.   See Commonwealth v. Oyewole, 470 Mass. 1015, 1016

(2014) (to make out a violation of G. L. c. 90, § 23, the

Commonwealth must prove, inter alia, that the defendant "was

notified that his license had been suspended or revoked").      We

conclude that the evidence was sufficient and therefore affirm

the convictions.

     Background.    Given the limited nature of the defendant’s

appeal, we lay out only the evidence related to whether the

defendant had notice of his license suspension.      The longtime

branch manager of the Worcester office of the Registry of Motor

Vehicles (RMV) testified that the RMV had a system in place to

provide drivers formal notice that their licenses had been

suspended.    Under that system, once an OUI conviction is entered


     1
       The defendant was also convicted of OUI, fifth or
subsequent offense. G. L. c. 90, § 24(1)(a)(1). As discussed
infra at note 6, he initially challenged that conviction but has
since abandoned that claim. He has not challenged his
additional conviction of operating negligently so as to
endanger. G. L. c. 90, § 24(2)(a).
                                                                    3


into the relevant database, a suspension notice is automatically

generated, and employees in the RMV mailroom then place the

notice in an envelope and deliver it to the post office for

mailing.   The branch manager also produced from RMV files a

"notice of suspension" letter (suspension notice) dated November

8, 2001.   That suspension notice, which was addressed to the

defendant at a mailing address on file with the RMV, stated that

the defendant's license was being suspended for a ten-year

period beginning October 15, 2004.

     When the defendant was stopped by police in 2012 for his

new OUI violation, he admitted to them that he did not have a

license (while providing them his license number). 2

     Discussion.   The defendant bases his insufficiency argument

primarily on Commonwealth v. Oyewole, supra.   We proceed to

review that case in some detail.




     2
       In that same conversation, the defendant initially told
police that he did have a license. However, for purposes of
assessing sufficiency, we view the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). The jury were entitled to accept
the defendant's conversation with police as an admission that he
knew he did not have a license. See Meyer v. Wagner, 57 Mass.
App. Ct. 494, 505 (2003) ("It is the job of the jury . . . to
weigh conflicting evidence and to draw reasonable inferences . .
."). There is no merit to the defendant's claim that the jury
could not make such a finding on the theory that there were two
equally plausible competing inferences that could be drawn from
testimony. See Commonwealth v. O'Brien, 305 Mass. 393, 400
(1940).
                                                                        4


     When the driver in Oyewole was stopped by the police, he

"had his license in his possession and gave it to the police

officer."   Id. at 1017.   Noting that drivers who have their

licenses suspended are legally required to surrender them to the

probation department and that the defendant in that case

apparently did not surrender his license, the court observed

that "[a] possible reason for this is that nobody notified the

defendant that his license was suspended."       Ibid.   Against this

backdrop, the Commonwealth tried to prove that the driver had

been notified of his license suspension based solely on a court

docket entry from an earlier plea hearing that noted that his

license was being suspended.    Id. at 1016.    The court held that

this evidence, by itself, was insufficient to prove beyond a

reasonable doubt that the driver had received notice of the

suspension.   It also commented, in dicta, that the proof would

have remained insufficient even if the assumption were made that

"the regular practice [of court officials] when accepting a

plea" was to provide a defendant notice that his license was

being suspended as a result of the plea.       Ibid.   In the words of

the court, "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."    Ibid.

     The factual setting of the case before us is markedly

different from that of Oyewole.    Most important, as noted, the
                                                                    5


defendant here admitted to police that he lacked a license

(while informing police what his license number was).     We need

not decide whether that admission alone provided sufficient

proof that he had been notified that his license had been

suspended, because of the other evidence that the Commonwealth

produced. 3    To be sure, the fact that a suspension notice existed

in RMV files does not by itself prove that it was mailed to the

defendant. 4   The defendant argues that the Commonwealth cannot

prove that it mailed this particular suspension notice by

providing testimony about the system that the RMV had in place


     3
       The defendant separately argues that the judge erred in
admitting the suspension notice in evidence. Although the
Commonwealth introduced the suspension notice through the
testimony of the RMV branch manager, the transcript appears to
reveal that the copy of the document was accompanied by a
certification/attestation in accordance with G. L. c. 233, § 76,
that the RMV provided as to the document's authenticity.
Moreover, after conducting a voir dire to assess the branch
manager's knowledge, authority, and role at the RMV with regard
to records, the judge concluded that "in her position as branch
manager of the Worcester [RMV, the witness] is competent to
testify as to the authenticity of [RMV] documentation, such as
the certification of suspension and the other documents that
pertain to [the defendant]." The defendant has not shown that
the judge abused his discretion in admitting the document.
     4
       The Commonwealth need not prove that the defendant in fact
received that notice; proof that the RMV properly mailed it is
sufficient. See Commonwealth v. Koney, 421 Mass. 295, 303-304
(1995). In addition, the Commonwealth need not prove that
during the period in which the notice would have been delivered,
the defendant was in fact using the mailing address on file with
the RMV. Commonwealth v. Lora, 43 Mass. App. Ct. 136, 144
(1997) (RMV entitled to rely on the accuracy of the address
provided to it).
                                                                    6


for generating and mailing such notices.   According to him, that

testimony amounts to the type of "regular practice" evidence

deemed insufficient in Oyewole.   Instead, the defendant

contends, the Commonwealth at a minimum had to supply specific

proof that the 2001 letter was in fact placed in the mail. 5

     The Oyewole court was not presented with the question

whether the Commonwealth could prove that a particular

suspension notice in fact had been mailed by relying on

testimony regarding the RMV's general notification practices.

Moreover, at least some argument can be made that there is a

material difference between evidence that the RMV has in place

an administrative system for the mailing of suspension notices

that were specifically generated for that purpose and the type

of "regular practice" evidence deemed insufficient in Oyewole.

     In the end, we need not resolve whether the evidence

regarding the RMV's mailing practices would have been sufficient

on its own, because of the totality of the evidence on notice.

As Justice Holmes observed long ago, "[e]vidence which would be

colorless if it stood alone may get a new complexion from other

facts which are proved, and in turn may corroborate the

     5
       The defendant separately attacks the testimony about RMV's
mailing practices on two other grounds. First, he argues the
witness's testimony about the details of that system was too
thin to be of consequence. Second, he argues that the witness's
testimony about the agency's mailing system was all phrased in
the present tense instead of documenting what system was in
place in 2001 when the notice would have been sent.
                                                                   7


conclusion which would be drawn from the other

facts."   Commonwealth v. Mulrey, 170 Mass. 103, 110 (1898).

Here, the defendant admitted that he lacked a license, there was

a suspension notice addressed to him produced from RMV's files,

and there was some testimony regarding the RMV's systematic

mailing practices.   We conclude that, taken together, this

evidence provided a sufficient basis for a reasonable fact

finder to conclude, beyond a reasonable doubt, that the

defendant had been notified that his license had been suspended. 6

                                    Judgments affirmed.




     6
       As noted, the defendant was also convicted of OUI, fifth
or subsequent offense. G. L. c. 90, § 24(1)(a)(1). In his
brief, he argued that the judge erred in admitting a certified
copy of his RMV records to prove his prior convictions without a
live witness. He has since abandoned that claim in light of the
case law. See, e.g., Commonwealth v. Ellis, 79 Mass. App. Ct.
330, 335 (2011). To the extent that a single sentence in the
defendant's brief suggested (without citation) that the
Commonwealth had to prove that he was represented by counsel in
each of the prior convictions, that contention does not rise to
appellate argument that we need consider. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).
