MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a) (1), and negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a).
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On appeal, she argues that the Commonwealth failed to prove the element of operation and therefore the judge erred in denying her motions for required findings of not guilty filed at the close of the Commonwealths evidence and after the jury returned its verdict.
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We affirm.
Background. Because the defendant challenges the sufficiency of the evidence, we recite the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On March 31, 2019, at approximately 9 p.m., Officer Alex Gerrish of the Dracut Police Department responded to a report of a motor vehicle accident outside an apartment complex located on Tyngsboro Road in Dracut. When he arrived, he saw a car in the middle of the road that had sustained significant front-end damage. Another car was parked nearby, in front of the apartment complex, with its lights on and no one inside. There were several people, including the defendant, gathered around the car that had sustained damage. The defendant was agitated and at one point said, “Throw my car in the fucking river.” Her speech was slurred and she smelled of alcohol. Officer Gerrish asked the group “who the operator was,” and subsequently determined that the defendant was the driver of the damaged vehicle that had been left in the middle of the road.
Officer Gerrish then spoke to the defendant and asked her if she needed medical attention, to which she replied, “No.” Next, he asked the defendant for her name and she responded, “Its my fucking birthday.” Officer Gerrish then asked the defendant whether she had consumed alcohol that evening, and the defendant answered, “Its my fucking birthday, cocksucker.” The defendant began to walk away, but was unsteady and fell over. Officer Gerrish formed the opinion that the defendant was “highly intoxicated” and arrested her. The defendant continued to call Officer Gerrish names “angrily [and] loudly” and resisted getting into the police cruiser. At one point, she tried to bite Officer Gerrish in the chest area. The defendant was transported to the Dracut Police station, where she continued to insult the officers and refused to answer routine booking questions. Another officer inventoried the contents of the defendants car before it was towed. He found an open twenty-five ounce can of beer on the floor of the front passenger seat. The keys to the vehicle were not in the car. The Commonwealth also introduced records from the registry of motor vehicles certifying that the defendant was the registered owner of the car.
Discussion. The defendant challenges the sufficiency of the Commonwealths evidence on the element of operation only. Operation of a motor vehicle is an element the Commonwealth must prove to sustain a conviction of both OUI and negligent operation of a motor vehicle.
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The defendant contends that the Commonwealth did not meet its burden because there was no evidence that anyone saw her operating the car or that she had the keys to the car at the time of the accident. While true, the absence of direct evidence of operation is not dispositive. It is well settled that “[p]roof of operation of a motor vehicle may ‘rest entirely on circumstantial evidence.’ ” Commonwealth v. Peterson, 67 Mass. App. Ct. 49, 52 (2006), quoting Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438 (2002). Here, the relevant circumstantial evidence of the defendants operation established that: (1) Officer Gerrish determined through his investigation that the defendant was the operator of the vehicle;
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(2) the defendant was the registered owner of the vehicle, which she referred to as “my car” at the scene of the accident; (3) the vehicle appeared to have recently collided with another vehicle; and (4) the defendant was visibly upset. See Cromwell, supra at 439. In addition, there was no evidence that any of the bystanders or the defendant disputed Officer Gerrishs treatment of the defendant as the operator of the car. See id.; Commonwealth v. Manning, 41 Mass. App. Ct. 18, 22 (1996) (inference of operation “supported by the failure of the bystanders at the scene to dispute the defendants identity as the operator when the officer obviously was treating him as such”).
Finally, although defense counsel argued to the jury that someone else could have driven the car and then left the scene, the Commonwealth was not required to prove that the defendant “had the exclusive opportunity to commit the crime.” Cromwell, 56 Mass. App. Ct. at 440. Furthermore, there was no evidence that someone other than the defendant was operating the car. See id. “The fact that there were other persons present at the scene, unsupported by evidence tending to suggest that someone other than the defendant was operating the [vehicle], cannot serve to undermine the probative value of the corroborative evidence.” Manning, 41 Mass. App. Ct. at 22, quoting Commonwealth v. Adams, 421 Mass. 289, 291-292 (1995). While the evidence of operation was less than overwhelming, and the judge was prudent to request memoranda on the issue, we conclude that the evidence, “viewed as a whole and in the light most favorable to the Commonwealth,” reasonably supported the inference that the defendant was the operator of the vehicle. Cromwell, supra at 439. Accordingly, the defendants motions for required findings of not guilty were properly denied.
Judgments affirmed.
FOOTNOTES
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. The defendant also was found responsible for two civil infractions, a marked lanes violation and possession of an open container of alcohol in a motor vehicle.
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. The defendant filed a motion for required findings of not guilty after the Commonwealth rested and, although she did not present any evidence, she renewed the motion before the case was submitted to the jury. The judge reserved ruling on the motion until after the jury returned its verdict. At that time, he permitted the parties to submit memoranda of law. Defense counsel filed a memorandum and effectively renewed the defendants motion a second time. About one week later, at the defendants sentencing hearing, the judge denied the motion from the bench.
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. In order to sustain a conviction for OUI, the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) on a public way (3) while under the influence of intoxicating liquor. See G. L. c. 90, § 24 (1) (a) (1). See also Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011). To prove guilt for negligent operation of a motor vehicle under G. L. c. 90, § 24 (2) (a), the Commonwealth must show that “the defendant (1) operated a motor vehicle, (2) upon a public way, (3) ․ negligently so that the lives or safety of the public might be endangered.” Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004).
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. The prosecutor asked the officer: “In the course of your investigation, who did you determine to be the driver of that vehicle?” Defense counsel objected. The objection was overruled and the officer testified, “The defendant, Charlene.” Because the evidence was admitted, the jury were entitled to consider it for all purposes. See Commonwealth v. Giavazzi, 60 Mass. App. Ct. 374, 375 n.3 (2004) (evidence admitted over objection was admitted for all purposes). See also Commonwealth v. Roberts, 433 Mass. 45, 48 (2000) (evidence admitted without limiting instruction is admitted for all purposes). The defendant does not challenge the judges ruling on appeal.