COMMONWEALTH vs. AMY B. BELTRANDI.

AGNES, J. In this appeal from her conviction of operating a motor vehicle on a public way while under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a)(1), the defendant raises two issues. First, she argues that the Commonwealth presented insufficient evidence to permit the jury to find beyond a reasonable doubt that she operated the vehicle. While the question is a close one, we conclude that on the basis of the circumstantial

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evidence presented by the Commonwealth, the jury were entitled to draw a reasonable inference that the defendant was the operator of the vehicle. Second, she argues that the prosecutor's closing argument was improper because in the absence of a missing witness instruction, the prosecutor should not have urged the jury to draw an adverse inference against the defendant due to the absence of a potential witness. We agree with the defendant that the prosecutor's closing argument was improper, and conclude that it constituted prejudicial error. Accordingly, we reverse.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found that at approximately 2:30 A.M. on May 29, 2012, a resident of Ware awoke to see a truck (later identified as a 2006 Toyota Tacoma pickup truck) stopped on Route 9 (Belchertown Road). Two-thirds of the vehicle was in the road and about one-third was over the fog line. The resident placed a telephone call to 911. Officer Scott Underwood of the Ware police department arrived soon thereafter. Initially, he saw the truck in the westbound lane, with its engine running and its lights out. He noticed that the windows were fogged up. He did not see any movement inside the vehicle. While standing at the vehicle's back bumper, he saw "a female party in the driver's seat, male party in the passenger seat." [Note 1] Officer Underwood rapped on the fogged up window on the driver's side several times before the defendant, the person seated in the driver's seat, rolled down the window. The defendant and her companion were only partially clothed. The parties dressed at the officer's request. The defendant stated that she and her companion were on their way home from a bar which she identified correctly by name, but incorrectly located in Chicopee. The defendant told Officer Underwood that she and her companion had been engaged in "sexual activity." Based on his observations of the defendant while she was seated inside the vehicle and later after she exited and performed several field tests, Officer Underwood formed the opinion that she was intoxicated and placed her under arrest. Officer Underwood also testified that the vehicle was registered to the defendant's husband, who was not the male companion in the vehicle. [Note 2]

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At trial, the defendant did not dispute that the vehicle had been operated on a public way, or that she was intoxicated at the time of her arrest, but instead challenged whether the Commonwealth proved that she had operated the vehicle. [Note 3] The defendant's companion was living in California at the time of trial, and was not available as a witness for either party.

Discussion. 1. Standard of review. We review the denial of a motion for a required finding of not guilty by examining the evidence, along with permissible inferences from that evidence, in the light most favorable to the Commonwealth and determine whether a reasonable jury could find each essential element of the crime beyond a reasonable doubt. Commonwealth v. Penn, 472 Mass. 610, 618-619 (2015). "To survive a motion for a required finding, it is not essential that the inferences drawn are necessary inferences. It is enough that from the evidence presented a jury could, within reason and without speculation, draw them." Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 257 (1999). This principle is no less true in a case like this in which proof of an essential element of the offense (operation) rests entirely on circumstantial evidence. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003).

2. Sufficiency of the evidence to prove operation. "An individual 'operates' a motor vehicle within the meaning of G. L. c. 90, § 24, 'when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.'"

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Commonwealth v. Ginnetti, 400 Mass. 181, 183 (1987), quoting from Commonwealth v. Uski, 263 Mass. 22, 24 (1928). See Commonwealth v. Eckert, 431 Mass. 591, 599 (2000) (intentional act of starting the vehicle constitutes operation); Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994) (intoxicated driver asleep in vehicle with key in ignition and engine running is operating the vehicle); Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 645-647 (2011) (placing the key in the ignition and turning the electricity on without starting the engine is operation).

Direct evidence that the defendant operated the vehicle is not required. Commonwealth v. Woods, 414 Mass. 343, 354-355, cert. denied, 510 U.S. 815 (1993). "A web of convincing proof can be made up of inferences that are probable, not necessary." Commonwealth v. Hilton, 398 Mass. 63, 67 (1986), quoting from Commonwealth v. Best, 381 Mass. 472, 483 (1980). [Note 4] However, an

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inference from circumstantial evidence that a person was the operator of a vehicle is not reasonable if the fact finder must resort to "speculation, conjecture or surmise." Commonwealth v. Shea, 324 Mass. 710, 714 (1949).

The defendant contends that this case is like those cases in which the presence of a second person in the vehicle renders the inference that the defendant was the operator unreasonable. For example, in Commonwealth v. Mullen, 3 Mass. App. Ct. 25 (1975), the defendant and a companion were traveling north on a four-lane highway in Hingham in an automobile that suddenly veered across the center dividing line, crossed the two lanes on the other side, and struck a concrete fence. The defendant, who was intoxicated, was found about ten to fifteen feet outside the vehicle and over the side of an embankment, slightly to the rear of the right rear wheel. The defendant's companion did not survive the crash. He was "in a U-shape, his right foot being out under the passenger door, his left foot under the engine; his head and shoulders were up in the framework of the car, his head being against the floor." Id. at 26. The defendant admitted that he owned the automobile, and that he had driven it earlier in the evening. He denied knowing the victim even though it turned out they were roommates. The defendant also told the police that he had been walking along the side of the road and had been struck by an automobile. The Commonwealth argued that the defendant's ownership of the vehicle and his admission that he had driven it earlier that evening, coupled with the evidence of his consciousness of guilt, permitted the jury to infer that he had operated the vehicle at the time of the crash. We rejected this argument, noting that the evidence regarding the position of the defendant and the victim after the crash suggested a contrary inference (that the defendant was ejected from the passenger seat), and concluded

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that in such circumstances, neither inference could be established beyond a reasonable doubt. Id. at 27. See Commonwealth v. Leonard, 401 Mass. 470 (1988). [Note 5]

Here, unlike in Mullen and Leonard, the presence of a second person did not render the inference that the defendant was the operator of the vehicle unreasonable. This is not a case in which the evidence limited the jury to "a choice between, at the very most, equal inferences." Commonwealth v. Mullen, 3 Mass. App. Ct. at 27, citing Commonwealth v. Fancy, 349 Mass. 196, 201 (1965). In the present case, Officer Underwood testified that when he approached the vehicle the defendant was in the driver's seat. [Note 6] The defendant was severely intoxicated, but her companion was

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not. [Note 7] "The manner in which the automobile was parked, half on the street and half on the sidewalk, was evidence that it may have been driven by a driver under the influence of alcohol." Commonwealth v. Hilton, 398 Mass. at 68. As we said in Commonwealth v. Latney, 44 Mass. App. Ct. 423, 426 (1998), the jury here were not required to make a "leap of conjecture" to infer the defendant was the operator of the vehicle.

As noted above, the question whether the jury could reasonably infer that the defendant was the operator of the vehicle is a close one. However, while conflicting inferences as to who was the driver of the truck were possible, where, as in this case, an inference that the defendant was the operator of the vehicle is both possible and reasonable, our responsibility to view the evidence in the light most favorable to the Commonwealth requires that the jury be permitted to "determine where the truth lies." Commonwealth v. Platt, 440 Mass. at 401 (citation omitted). See Commonwealth v. Merry, 453 Mass. 653, 660-663. The defendant's motion for a required finding of not guilty was properly denied. [Note 8]

3. Prosecutor's closing argument. The evidence at trial was that the defendant's companion on the night she was arrested had moved to California and that she had not had any contact with him since a day or two following her arrest. The record does not indicate that the Commonwealth requested that the judge give a missing witness instruction prior to the closing arguments. [Note 9] In his closing argument, the prosecutor asked rhetorically, "[I]sn't it

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convenient" that the witness was not present, and "[w]hat else would he know that we may reasonably infer from the evidence that came in?" At the close of this argument, defense counsel objected, pointing out that the prosecutor was aware that the witness in question was in California and was not available. The prosecutor informed the judge that he was not asking for a missing witness instruction, but contended that he was still entitled to argue that the jury should draw an adverse inference against the defendant due to the absence of the witness. Defense counsel requested a curative instruction. The judge effectively overruled the defendant's objection by indicating that he would not give a missing witness instruction, and would not give a curative instruction.

"The missing witness argument and the missing witness instruction are interrelated." Mass. G. Evid. § 1111 note (a), at 402 (2015). The argument is "a powerful accusation -- that a party is withholding evidence that would be unfavorable -- and that is why we regulate it closely and require judges to assess very carefully whether to give the instruction and to permit the argument in a given case." Commonwealth v. Saletino, 449 Mass. 657, 673 (2007). For this reason, the preferred practice is for counsel and the trial judge to discuss the matter at the charge conference and prior to closing arguments. Commonwealth v. Williams, 450 Mass. 894, 907 (2008). Accord Commonwealth v. Pena, 455 Mass. 1, 16-17 (2009). See also Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134-135 (1986); Commonwealth v. Smith, 49 Mass. App. Ct. 827, 831 n.6 (2000).

This case is analogous to Commonwealth v. Pena, supra, where defense counsel asked the jury, in the absence of a missing witness instruction by the trial judge, "Where is that expert?" and argued that the prosecutor's failure to call an expert witness suggested that such witness could not rebut the defense expert's testimony. 455 Mass. at 15-16. In this case, the prosecutor's rhetorical questions improperly invited the jury to speculate as to the content of evidence not produced at trial. See Saletino, 449 Mass. at 672 n.22. See also Mass. G. Evid. § 1113(b)(3) & note (2015) (guidelines for closing arguments).

We apply the prejudicial error standard. "An error is not prejudicial if it did not influence the jury, or had but slight effect; however, if we cannot find with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the

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error, then it is prejudicial." Commonwealth v. Misquina, 82 Mass. App. Ct. 204, 207 (2012) (quotation and citations omitted). In view of our assessment that this was a close case in which the jury were presented with circumstantial evidence from which two conflicting inferences could be drawn -- one consistent with the defendant's guilt and one consistent with her innocence -- we cannot say that the prosecutor's improper argument did not have a substantial effect on the outcome.

For the foregoing reasons, the judgment is reversed and the verdict is set aside.

So ordered.