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Commonwealth v. Johnson9/4/2003
xercise control over the illicit substance . . . may be shown by 'presence supplemented by other incriminating evidence.'" Commonwealth v. Monson, 57 Mass. App. Ct. 867, 870 (2003), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989). The jury could infer from this evidence that the defendant had constructive possession of the cocaine. Ibid.
The evidence was ample that the defendant operated the car on Route 495, a public highway. The defendant admitted having operated the vehicle. Corroborating the defendant's admission were observations of the police and safety personnel that the defendant was alone in the driver's seat of the car, whose doors could not be opened easily. Contrast Commonwealth v. Leonard, 401 Mass. 470, 472-473 (1988). Even without the erroneously admitted hospital record, the defendant's erratic behavior and appearance, the facts surrounding the accident itself, and the discovery of cocaine and other controlled substances inside the vehicle permitted the inference that the defendant's capacity to operate was impaired by a narcotic drug. See Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 361 n.7 (1982).
On the charge of operating a motor vehicle under the influence of narcotics, the judgment is reversed and the verdict is set aside. On the charge of possession of a class B substance, the judgment is affirmed.
So ordered.
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