Commonwealth v. Artashes Vardanyan. ( 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-272
COMMONWEALTH
vs.
ARTASHES VARDANYAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury convicted
the defendant, Artashes Vardanyan, of negligent operation of a
motor vehicle, G. L. c. 90, § 24 (2) (a), and acquitted him of
operating under the influence of intoxicating liquor and leaving
the scene of property damage. The judge also found him not
responsible for a marked lanes violation. On appeal, he claims
that the trial judge should have allowed his motion for a
required finding of not guilty because the Commonwealth did not
meet its burden of proving negligence. We affirm.
To obtain a conviction for negligent operation of a motor
vehicle, "the Commonwealth must prove that the defendant (1)
operated a motor vehicle, (2) upon a public way, and (3)
(recklessly or) negligently so that the lives or safety of the
public might be endangered." Commonwealth v. Daley, 66 Mass.
App. Ct. 254, 255 (2006), quoting Commonwealth v. Duffy, 62
Mass. App. Ct. 921, 921 (2004). On appeal, the defendant
challenges only the sufficiency of the evidence pertaining to
the negligence element. "[O]rdinary negligence suffices" to
establish the negligence required for this element. McGovern v.
State Ethics Comm'n, 96 Mass. App. Ct. 221, 232 n.25 (2019). As
relevant here, the inquiry on appeal is whether, after viewing
the evidence in a light most favorable to the Commonwealth, "any
rational trier of fact could have found" negligence beyond a
reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Testimony at trial provided ample evidence for jurors to
infer negligence: the defendant's car collided with the right
side of the Jeep on a two-lane highway at about 12:20 A.M.; the
driver of the Jeep did not see any lights from the vehicle that
struck and disabled her Jeep; the defendant did not stop at the
scene of the crash and drove off the highway to a gas station
and left his car at a gas station; he appeared intoxicated when
confronted by responding police; and his car contained empty
beer bottles on the floor as well as one half-full bottle that
was "cold to the touch."
Based upon this evidence, jurors could rationally conclude
that the defendant was negligent in that he drove his car while
in an intoxicated state, without any illuminating lights on a
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highway at night, and sideswiped the Jeep while passing it on
the right. See Commonwealth v. Charland, 338 Mass. 742, 743-744
(1959) (negligence inferred from head on collision in rotary);
Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 220 (2019)
(negligence inferred from "erratic driving and near collision");
Daley, 66 Mass. App. Ct. at 256 (negligence inferred from
erratic driving, intoxication, and near collision with road
sign). See also 720 Code Mass. Regs. § 9.06(3) (1996) (driver
"shall pass at a safe distance to the left" of another vehicle
and "shall not cut in ahead of such other vehicle until safely
clear of it"); Campbell v. Cape & Islands Healthcare Servs.,
Inc., 81 Mass. App. Ct. 252, 254 (2012) ("well established that
'[a] violation of a statute, ordinance or regulation, although
not conclusive, is evidence of negligence on the part of a
violator as to all consequences that the statute, ordinance or
regulation was intended to prevent'" [citation omitted]). The
"assessment of the weight and credibility of [this] evidence was
properly left to the jury." Commonwealth v. AdonSoto, 475 Mass.
497, 510 (2016).
The defendant contends that the evidence did not warrant an
inference that he drove without headlights or exceeded the speed
limit. The contention is unavailing. To begin, we need not
address the question of excessive speed because the Commonwealth
presented sufficient evidence of other negligent conduct. As to
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the inference that the defendant drove without headlights, the
driver of the Jeep testified as follows: she drove in the left
lane at about 12:20 A.M., she did not see any other traffic, she
"never saw headlights" approaching, her Jeep "kind of exploded"
with flying glass and the passenger-side air bag deployed, her
Jeep lost power and stopped, she saw no other cars, and she
initially thought that she hit a deer. Based upon the sudden
impact to the passenger side of the Jeep, the absence of any
lighted cars being visible before and after the crash, and the
defendant's admission to the police that he had just been in a
crash on the highway, jurors could readily conclude that the
defendant drove without any illuminated headlights before
colliding with the Jeep. "[I]nferences that support a
conviction 'need only be reasonable and possible; [they] need
not be necessary or inescapable.'" Commonwealth v. Waller, 90
Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods,
466 Mass. 707, 713 (2014).
Challenging a further basis of negligence, the defendant
contends that the Commonwealth did not present "strong" evidence
that he was intoxicated and presented "extremely weak" evidence
of consciousness of guilt. Contrary to these contentions, the
evidence must be viewed in a light most favorable to the
Commonwealth with questions going to the weight of the evidence
being left for the jury. Latimore, 378 Mass. at 676-677. Under
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the Latimore standard, "we do not weigh the supporting evidence
against conflicting evidence." Commonwealth v. Semedo, 456
Mass. 1, 8 (2010).
Apart from intoxication, jurors could also infer negligent
operation from the defendant's consumption of alcohol. Evidence
of alcohol consumption prior to driving (or while driving) "is
patently relevant to whether the defendant exercised reasonable
care while driving." Commonwealth v. Woods, 414 Mass. 343, 350,
cert. denied, 510 U.S. 815 (1993). At a minimum, the
Commonwealth presented such evidence of the defendant's alcohol
consumption. State police Lieutenant John Brooks testified that
when he found the defendant near the crash site, the defendant's
eyes appeared "very glassy and bloodshot," and he could "detect
an odor of alcoholic beverage." Lieutenant Brooks subsequently
found a half-full bottle of beer behind the driver's seat in the
defendant's car that was "still cold to the touch." Trooper
Daniel Narcessian testified that he noticed the defendant had
"slurred speech, glassy, bloodshot eyes," and he could "smell
the odor of alcohol coming from his breath." Trooper Narcessian
further testified that he looked into the defendant's car and
saw several empty beer bottles. Trooper Narcessian then had the
defendant perform several field sobriety tests, during which the
defendant had a difficult time following directions. This
testimony provided a sufficient basis for jurors to conclude
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that the defendant was intoxicated or had been "consuming
alcohol prior to driving." Woods, 414 Mass. at 350. "The fact
that the jury ultimately did not convict the defendant of OUI
does not preclude their consideration of the evidence of
intoxication in considering the negligent operation charge."
Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017).
As to consciousness of guilt, the evidence showed that the
defendant left the scene of a significant two-car crash, drove
off the highway, pulled into a gas station, left his car
unoccupied, and returned to his car when the police arrived.
"Flight is perhaps the classic evidence of consciousness of
guilt." Commonwealth v. Carrion, 407 Mass. 263, 277 (1990). At
trial, and on appeal, the defendant has offered alternative,
innocuous reasons for his departure from the crash scene.
Nevertheless, as previously noted, the defense arguments go to
the weight of the evidence, not the sufficiency of the evidence.
"[I]t is for the jury alone to determine what weight will be
accorded to the evidence." Commonwealth v. Hoffer, 375 Mass.
369, 377 (1978).
Finally, the defendant contends that the evidence offered
at trial showed that he was not negligent because it was equally
plausible for the driver of the Jeep to have caused the crash.
Based upon the facts presented and viewing those facts in a
light most favorable to the Commonwealth, "[i]t was both
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reasonable and permissible for the trier of fact to infer that
the defendant operated his motor vehicle in a negligent manner"
and caused the crash. Daley, 66 Mass. App. Ct. at 256.
Judgment affirmed.
By the Court (Desmond, Hand &
Hodgens, JJ. 1),
Clerk
Entered: October 19, 2023.
1 The panelists are listed in order of seniority.
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