MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of operating a motor vehicle in violation of a license restriction, and of operating a motor vehicle without an ignition interlock device (IID). On appeal, he claims that: (1) the admission of certain Registry of Motor Vehicle (RMV) records without expert testimony was prejudicial; (2) the motion to dismiss the IID charge as unconstitutionally vague should have been allowed; (3) the judge erred in denying the defendants request for a jury instruction on necessity; and (4) there was insufficient evidence to support the IID conviction. We affirm.
1. Admission of RMV records. Because the defendant objected to the admission of the certified RMV records, we review under a prejudicial error standard. See Commonwealth v. Wardsworth, 482 Mass. 454, 458 (2019). Accordingly, “we review to determine whether there was error and, if so, whether there is a reasonable possibility that the error might have contributed to the jurys verdict, or whether we can be assured that the evidence did not influence the jury, or had but very slight effect” (citation and quotation omitted). Id. Generally, “[a] judge has broad discretion in making evidentiary rulings.” Commonwealth v. Martinez, 476 Mass. 186, 190 (2017). Therefore, “[w]e review [such] evidentiary rulings for an abuse of discretion, which requires a demonstration that the judge ‘made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives.’ ” Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 476 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the defendant claims that the trial judge committed prejudicial error by admitting certified RMV records that demonstrated that the defendant was still required to use an IID. The defendant claims that such records are not admissible as business records, and their admission, in the absence of an expert witness, deprived him of his right to confrontation under the Sixth Amendment. We disagree.
Pursuant to G. L. c. 90, § 30, “[c]ertified copies of such records of the [RMV], attested by the registrar or the registrars authorized agent, shall be admissible as evidence in the courts of the [C]ommonwealth to prove the facts contained therein” (emphasis added). “ ‘[RMV] records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records․’ ” Commonwealth v. Royal, 89 Mass. App. Ct. 168, 173 (2016), quoting Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 335 (2011). Here, the partially redacted records that were admitted in evidence consisted of three separate documents, which were certified as true copies of the records of the RMV, and were attested to by the RMV as such. Therefore, they were admissible pursuant to G. L. c. 90, § 30. Furthermore, while one of the documents is dated May 23, 2018, the information that is provided within all three documents dates back to 2012, which is almost five years prior to the date of the defendants current offense. Because the RMV records were not created for the purposes of establishing or proving some fact at the 2017 trial, the RMV records are not testimonial, and do not violate the defendants right to confrontation. See Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904 (2010). At bottom, because the judges admission of the records was not erroneous, the defendant cannot demonstrate prejudice or an abuse of discretion.
However, the defendant claims, without any citation to legal authority, that despite the admission of the RMV records, the judge erred in failing to give the requested missing witness instruction to the jury.
2
Arguments made on appeal in cursory and conclusory fashion, without any citation to legal authority, are not properly before us and do not constitute an appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See also Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 80 n.9 (2021).
Nonetheless, even if we were to reach the merits of the defendants argument, we find no error in the judges decision to refrain from giving a missing witness instruction. Whether a missing witness instruction ought to be given depends upon the posture of the particular case and the state of the evidence, as “there is no hard and fast rule” as to when a jury may be permitted to draw a negative inference from the failure to call a witness (citation omitted). Commonwealth v. Williams, 450 Mass. 894, 900 (2008). Because such an inference may “ ‘have a seriously adverse effect on the noncalling party ․ it should be invited only in clear cases, and with caution.’ ” Id. at 900-901, quoting Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986). Here, because the RMV records were properly admissible without the testimony of an expert witness, the judge did not abuse her discretion in refusing to give a missing witness instruction because the experts testimony was not essential to the Commonwealths case. See id. at 901. See also Commonwealth v. Andrade, 98 Mass. App. Ct. 395, 400 (2020) (no missing witness instruction required where witnesss testimony would be “merely cumulative upon” other evidence provided by Commonwealth).
2. Vagueness of G. L. c. 90, § 24S (a). The defendant also claims that the motion judge erred in denying his motion to dismiss because the lack of a knowledge requirement in G. L. c. 90, § 24S (a) renders the statute unconstitutionally vague. We disagree.
A statute is deemed unconstitutionally vague only when it lacks certainty and definiteness, so that a person of ordinary intelligence is unable to ascertain whether any act or omission will come within the scope of the statute. See Scione v. Commonwealth, 481 Mass. 225, 230 (2019). Here, there is no uncertainty as to what the statute requires. Where a persons license is restricted so as to require an IID, the operation of a motor vehicle on a public road without such a device constitutes a criminal offense, punishable by fine and imprisonment. See G. L. c. 90, § 24S (a). Such conduct is a crime, despite the fact that “the person responsible has no ‘blameworthy condition of the mind.’ ” Commonwealth v. Tart, 408 Mass. 249, 264 (1990), quoting Commonwealth v. Buckley, 354 Mass. 508, 511 (1968). “[T]he Legislature is vested with wide latitude to declare what constitutes a crime; this includes the authority to create strict liability offenses.” Commonwealth v. Wilbur W., 479 Mass. 397 (2018). Although there is a general principle that many crimes contain a mens rea, this is not a constitutionally mandated doctrine. See Commonwealth v. Miller, 385 Mass. 521, 524 (1982). “The function of the [L]egislature [in defining crimes and their punishments] ․ is not to be interfered with lightly” (citation omitted). Commonwealth v. Peterson, 476 Mass. 163, 165 (2017). Accordingly, there was no error in the motion judges denial of the motion to dismiss.
3. Necessity instruction. The defendant also argues that the judge erred in denying his request for an instruction on the defense of necessity. This claim is also waived.
3
Even if the claim was properly before us, it still lacks merit.
The defense of necessity exonerates one who commits a crime under the pressures of the circumstances, where the harm of compliance with the law would exceed the actual harm resulting from the defendants violation of the law. See Commonwealth v. Kendall, 451 Mass. 10, 13 (2008). Such a defense is available only in limited circumstances, where:
“(1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.”
Id. at 13-14, quoting Commonwealth v. Hood, 389 Mass. 581, 591 (1983). A jury instruction on the defense of necessity is only warranted after the defendant has met his initial burden by presenting some evidence on each of these four elements. See id. at 14. We view the evidence in the light most favorable to the defendant to determine whether there exists at least a reasonable doubt whether the defendants actions were justified by necessity. See Commonwealth v. Pike, 428 Mass. 393, 400 (1998).
Here, the evidence was insufficient to demonstrate a clear and imminent danger that rose above the level of mere speculation. The defendants girlfriend testified that while on the way home from a wake, her vehicle began to shake and rattle, causing her to become scared and very upset, to the point where she did not want to continue driving the vehicle. While the mechanical issues certainly were cause for concern for both of the cars occupants, the record is devoid of any evidence that they were faced with a clear and imminent danger. Cf. Commonwealth v. Livingston, 70 Mass. App. Ct. 745, 750 (2007) (defendant who needed prompt medical attention after suffering gunshot wound to abdomen faced clear and imminent danger that outweighed harm of briefly driving down wrong side of road).
Even if we were to assume that the defendant was in fact faced with a clear and imminent danger that rose beyond a level of mere speculation, there is no evidence of the lack of an effective legal alternative in abating this danger. See Kendall, 451 Mass. at 15. As the Commonwealth properly argues, there existed numerous legal alternatives for the defendant to choose from to avoid operation of the vehicle without an IID, including calling a tow truck, or attempting to find another legal driver to drive the vehicle to their home. Where the defendant has made no showing that “available alternatives would have been ineffective, leaving him with no option” but to drive the vehicle without an IID, we find no error in the trial judges decision to deny the defendants request for an instruction on the defense of necessity. See id. at 15 (defendant in serious need of medical attention not allowed to present necessity defense where there existed sufficient available alternatives, including contacting nearby neighbors and placing 911 emergency telephone call).
4. Sufficiency of the evidence. “When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt․’ Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).” Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009).
Sufficiency of the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson v. Virginia, 443 U.S. at 324 n.16; Commonwealth v. Latimore, 378 Mass. at 677-678. To prove the crime of operation without an IID, the Commonwealth must prove: (1) the defendant operated a motor vehicle; (2) on a public way; (3) the motor vehicle was not equipped with an IID; and (4) the defendants license was restricted so as to require an IID. See G. L. c. 90, § 24S (a).
The defendant challenges only the sufficiency of the evidence as to the fourth element, claiming that there was insufficient evidence to prove that the IID was required at the time of the incident. In particular, the defendant claims that the statute only states that the IID shall be required for two years, and the offense occurred beyond the two-year requirement. See G. L. c. 90, § 24 1/2. We disagree.
Pursuant to G. L. c. 90, § 24 1/2, a certified IID was required on all vehicles owned, leased, and operated by the defendant for a two-year period. However, this two-year period is not the maximum period that the defendant may be required to have the device. The Ignition Interlock Operators Affidavit, signed by the defendant, explicitly stated that such requirement was subject to a six-month review, and may in fact be extended.
4
Here, an IID was installed on the defendants vehicle in January of 2012. According to the certified RMV print-out, the IID requirement was in effect until September 9, 2020. Also, Sergeant Meincke testified that the defendant stated that he was advised by the RMV that the device was required until 2018, and by the company that serviced the device that it was required until 2020. See Commonwealth v. Indrisano, 87 Mass. App. Ct. 709, 715 (2015) (defendants own statements admissible in evidence against him).
At bottom, “[j]urors are permitted to draw reasonable inferences from the evidence based on their common sense and life experience.” Commonwealth v. Beal, 474 Mass. 341, 346 (2016). When viewed in the light most favorable to the Commonwealth, the defendants own statements, in connection with the certified RMV records and the defendants affirmative obligation to remove the IID, were sufficient for the jury to find that an IID was required at the time of the incident in 2017. See Latimore, 378 Mass. at 677-678.
Judgments affirmed.
FOOTNOTES
2
. The defendant also claims that the judge erred in refusing to allow testimony concerning statements made to him at a 2009 RMV hearing. He claims that the failure to allow such testimony deprived him of a meaningful opportunity to present a complete defense. However, this right “is not unfettered; it is subject to the limitations set forth under standard rules of evidence.” Commonwealth v. Chukwuezi, 475 Mass. 597, 603 (2016). Here, because the defendants proposed testimony was hearsay, there is no violation of the defendants constitutional right to present a complete defense. See Commonwealth v. Yang, 98 Mass. App. Ct. 446, 449 (2020) (rule against hearsay prohibits admission of out-of-court statements offered to prove the truth of the matter asserted).
3
. Like his arguments concerning the missing witness instruction, the defendants arguments concerning the failure to provide an instruction on the defense of necessity are again made in cursory and conclusory fashion. As such, they are not properly before us, and do not rise to the level of proper appellate argument. See Mass. R. A. P. 16 (a) (9) (A).
4
. Pursuant to 540 Code Mass. Regs. § 25.12, the defendant bore the affirmative obligation to seek removal of the IID, by demonstrating that he has had no infractions or violations in the preceding six months. The failure to do so would result in the IID requirement being extended until the defendant made such an application, demonstrating that he has met these requirements. 540 Code Mass. Regs. § 25.12 (2008).