28 Mass. App. Ct. 964 | Mass. App. Ct. | 1990
On April 10, 1988, about 7:30 p.m. a State police trooper, in response to a telephone call, went to a certain unnamed private way off Route 1 in Peabody. Upon arrival, the trooper observed an individual, later determined to be the defendant, seated on a motorcycle, stopped on a paved way leading from Route 1 (a public way) to a mobile home (trailer) park.
Upon his conviction of operating a motor vehicle while under the influence of intoxicating liquor, the defendant principally argues on appeal that because there was insufficient evidence, as matter of law, that his operation of the motorcycle occurred on “any way or in any place to which members of the public have access as invitees or licensees” (G. L. c. 90, § 24[l][a][l]), as appearing in St. 1982, c. 373, § 2, it was error for the judge to deny his motion under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), for a required finding of not guilty. The defendant correctly asserts that the reasoning of Commonwealth v. Hart, 26 Mass. App. Ct. 235 (1988), controls this question in all material respects.
In reviewing the denial of the defendant’s motion we must “appraise the evidence in a light most favorable to the government, without weighing contrary evidence presented by the defense. ... So measured, we ask whether the evidence was sufficient to warrant a rational trier of fact in concluding beyond a reasonable doubt” (26 Mass. App. Ct. at 236) that the road on which the defendant was operating his motorcycle on the evening of April 10, 1988, is a “place to which members of the public have access as invitees or licensees.” The record evidence is sufficient to sustain the denial of the defendant’s motion for a required finding of not guilty.
“It is the status of the way, not the status of the driver, which the statute defines.” Id. at 237-238. The cases collected in Commonwealth v. Hart suggest that the usual “indicia of accessibility to the public” are paved roads, the absence of signs prohibiting the public access, street lights, curbing, abutting houses or businesses, crossroads, traffic, signs, signals, lighting, and hydrants. Id. at 238.
The arresting officer testified that the way here was paved with asphalt (with no curbing), is approximately 200 feet in length, and leads from
The defendant also argues that certain of the judge’s statements suggest that he improperly may have relied on his personal knowledge of the area in finding the defendant guilty.
The defendant seems to imply that the judge relied on his personal knowledge of the area in determining that “access” to the way was not prohibited.
Judgment affirmed.
The way is near the Sir John Motel’s parking lot and is separated from that lot by a grassy strip.
The judge stated: “Applying my life experiences, which fortunately Or perhaps unfortunately for Mr. Muise, has been as a resident of Peabody, having driven into these trailer parks, bringing children, going into the wrong trailer park, turning around and coming back out again, and certainly never feeling that it was anything other than a right that I had, just as I’d turn down any other road and take the wrong road as I’m dropping them off, going to a Boy Scout meeting or a Cub Scout meeting or whatever, that — and with the other comments that I have made, proximity to the Sir John Motel — my understanding is directed and convinced, my reason and judgment are satisfied, that the element of public way has been proved true, as well.”
The judge stated: “I think the Commonwealth, as it’s happened a couple of times, skates perilously close, when they have these kinds of situations and don’t introduce or don’t seek to bring in the owners of the property to put them on the stand and indicate that there is no prohibition for access, but in this particular case, since it happens to be in my home town — Mr. Muise might not be a beneficiary of my ignorance — but anyway, that’s — I conclude that all three elements have been established and that I’m going to find the defendant guilty ...” (emphasis supplied).