Commonwealth v. Jennifer L. Soule. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1261
COMMONWEALTH
vs.
JENNIFER L. SOULE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the District Court, the
defendant was convicted of operating a motor vehicle while under
the influence of narcotic drugs, in violation of G. L. c. 90,
§ 24 (1) (a) (1). 1 On appeal, she claims that her motion for a
required finding of not guilty should have been allowed because
there was no evidence from which a rational trier of fact could
have found beyond a reasonable doubt that she was under the
1 The defendant also was charged with negligent operation of a
motor vehicle, two counts of possession with intent to
distribute a class E substance (Adderall, Gabapentin, and
Xanax), possession with intent to distribute a class C substance
(Lorazepam), and possession with intent to distribute a class B
substance (morphine). Immediately before trial, the defendant
admitted to sufficient facts with respect to the charges of
negligent operation of a motor vehicle and possession with
intent to distribute morphine, and agreed she was responsible
for a marked lanes violation. The judge dismissed the remaining
charges at the request of the Commonwealth.
influence of a narcotic drug as defined by G. L. c. 94C, § 1
(§ 1). We agree and reverse the judgment of conviction.
Background. We summarize the facts as the judge could have
found them, in the light most favorable to the Commonwealth.
See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
At approximately 6:30 P.M., on January 7, 2020, Sergeant Patrick
Mortimer of the Lancaster Police Department received a dispatch
regarding the erratic operation of a motor vehicle on Route 117
and proceeded to that location. By the time he arrived, the
vehicle in question had crossed over the marked divider into
oncoming traffic and collided with another car. Sergeant
Mortimer approached and spoke with the driver, subsequently
identified as the defendant, who was outside of her car
inspecting the damage. Sergeant Mortimer testified that the
defendant "was acting very erratically. She was speaking very
slowly and walking very slowly, then all of a sudden she was
speaking very rapidly." The defendant began to walk quickly
around her car to the point where Sergeant Mortimer became
concerned that she might be hit by another vehicle. Sergeant
Mortimer asked the defendant what happened, to which she
responded that "she was driving home from work and her dog
jumped into her lap, causing her to swerve." Sergeant Mortimer
then asked if she was using any drugs. The defendant replied
that she took Suboxone that morning and that she had a
2
prescription for it. Thereafter, the defendant agreed to
participate in some roadside assessments, which she could not
complete to Sergeant Mortimer's satisfaction. The defendant was
arrested and transported to the police station. The police
subsequently found numerous pill bottles in the defendant's car
and purse. Sergeant Mortimer believed that Suboxone was also
found in the car; the Suboxone was returned to the defendant
because she had a prescription for it. 2
Discussion. The statutory crime of operating a motor
vehicle while under the influence of narcotic drugs "does not
criminalize operation under the influence of all narcotics,
stimulants, or depressants, but only those 'defined in section
one of chapter ninety-four C.' Absent proof that the
defendant's operation was impaired by a drug, depressant, or
stimulant that is among those so defined, no statutory violation
arises." Commonwealth v. Ferola, 72 Mass. App. Ct. 170,
170 (2008), quoting G. L. c. 90, § 24 (1) (a) (1).
As an initial matter, we note that the defendant agrees
that the evidence was sufficient to warrant a finding that she
operated a motor vehicle on a public way and that her ability to
operate the vehicle was impaired. Her sole contention on appeal
2 An open container of marijuana was recovered from the vehicle's
center console, but there was no indication of marijuana use and
the defendant was not charged with any offenses related to the
marijuana.
3
is that because there was no evidence that Suboxone, the
substance she ingested, qualified as a prohibited substance
under § 1, there could be no violation and, consequently, the
judge erred when he denied her motion for a required finding of
not guilty.
The Commonwealth acknowledges that it did not present any
evidence that Suboxone is a narcotic drug that falls within the
scope of § 1. It asserts, however, that it met its burden of
proof because the judge took judicial notice of the fact that
Suboxone is a prohibited substance as defined by the statute.
We assume without deciding that the judge could have taken
judicial notice that Suboxone is such a substance since that
fact is a "subject of generalized knowledge readily
ascertainable from authoritative sources, and thus appropriate
for judicial notice." 3 Commonwealth v. Finegan, 45 Mass. App.
Ct. 921, 923 (1998) (quotation omitted). However, it is not
clear that the judge did so here.
3 We note that approximately two years before the trial in this
case, in Commonwealth v. Rodriguez, 484 Mass. 1047, 1047 (2020),
the Supreme Judicial Court referred to Suboxone as a class B
substance. In addition, in Care & Protection of Zeb, 489 Mass.
783, 784 n.2 (2022), the Supreme Judicial Court explained that
"Suboxone is the brand name of a medically based treatment
product containing buprenorphine and naloxone, prescribed for
the treatment of opioid dependence."
4
There is no question that the judge was not requested to
take judicial notice regarding Suboxone, 4 and the judge never
stated that he was doing so. The Commonwealth does not argue
otherwise. Instead, the Commonwealth contends that the judge
implicitly took judicial notice. In support of its position,
the Commonwealth relies on an exchange between the judge and
defense counsel during defense counsel's argument for a required
finding of not guilty. During that exchange, defense counsel
argued that the Commonwealth had not "presented any proof or
testimony relating to the type of drug, class of drug," and the
judge responded by asking, "Didn't [the Commonwealth] indicate
that [the defendant] had admitted that it was Suboxone?"
The prosecutor argued: "[Suboxone] is a controlled substance
under both the controlled substances laws as well as OUI drugs.
And therefore, certainly the Commonwealth has met its burden at
this time." Thereafter, in his closing argument the prosecutor
asserted that Suboxone is a controlled substance.
According to the Commonwealth, the judge's question to
defense counsel regarding the defendant's admission to having
taken Suboxone demonstrates that the judge believed Suboxone was
a narcotic drug, and because the judge subsequently denied the
4 Generally, when a party intends to rely on judicial notice to
establish a particular fact, the party files a motion in limine
outlining the request and the reasons for it.
5
motion for a required finding of not guilty and then (following
the Commonwealth's closing) found the defendant guilty, he
necessarily took judicial notice that Suboxone was a prohibited
substance under § 1.
The Commonwealth's argument is not without force. However,
the record does not provide a sufficient basis from which we can
conclude that the judge took judicial notice as the Commonwealth
now asserts. The Commonwealth did not raise the issue before
trial or during its case in chief, and the judge did not make
any explicit ruling regarding the nature of Suboxone sua sponte.
Put simply, in a criminal case where the defendant's liberty is
at stake, more than what has been shown here is required, even
in the context of a jury-waived trial. 5
Furthermore, even if we were to assume that a judge can
take judicial notice implicitly, a point we need not reach, see
Finegan, 45 Mass. App. Ct. at 923, it is well-settled that
judicial notice should not be taken when the parties do not have
5 We presume, as the law requires, that the judge correctly
instructed himself on the law. See Commonwealth v. Garvey,
99 Mass. App. Ct. 139, 143 (2021). However, that the judge
knows the law does not necessarily mean that he took judicial
notice of a fact without being requested to do so. We note that
in denying the defendant's motion for a required finding of not
guilty, the judge referred to Commonwealth v. Johnson, 59 Mass.
App. Ct. 164 (2003), in which this court concluded that a pill
book purchased at a CVS pharmacy was not an appropriate subject
for judicial notice. Because it is not clear whether the judge
was relying on that ruling or distinguishing it, we take nothing
from his reference to it.
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notice. See Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789
(2018) ("Even in situations where judicial notice is
appropriate, it should not be taken without notice to the
parties and an opportunity to be heard"). Here, it is
undisputed that the defendant received no notice that the
Commonwealth intended to request that the judge take judicial
notice that Suboxone is a prohibited substance and, as a result,
he was not given an opportunity to be heard on the issue.
In short, the Commonwealth did not meet its burden of
demonstrating that the drug that the defendant admitted she had
taken and that impaired her ability to operate her vehicle was a
narcotic drug, depressant, or stimulant substance as defined by
§ 1. The defendant's motion for a required finding of not
guilty should have been allowed. The judgment is reversed, the
finding is set aside, and judgment shall enter for the
defendant.
So ordered.
By the Court (Vuono, Meade &
Walsh, JJ. 6),
Clerk
Entered: December 27, 2023.
6 The panelists are listed in order of seniority.
7