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Commonwealth v. Tsonis

Appeals Court of Massachusetts, Barnstable

October 8, 2019

COMMONWEALTH
v.
KOSTANTINOS TSONIS

          Heard: June 7, 2019.

          Complaint received and sworn to in the Falmouth Division of the District Court Department on August 3, 2017. The case was heard by J. Thomas Kirkman, J.

          James R. McMahon, III, for the defendant.

          Laura Marshard, Assistant District Attorney, for the Commonwealth.

          Present: Hanlon, Ditkoff, & McDonough, JJ.

          DITKOFF, J.

         The defendant, Konstantinos Tsonis, appeals after a jury-waived trial from his District Court convictions of operating under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a.) (1), and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a.) . We conclude that a parking lot that members of the public may use to visit a restaurant, bar, shop, and beach, all open to the public, is a public way or place. Further concluding that evidence of the defendant's physical characteristics, belligerent behavior, and erratic driving was sufficient to show the defendant's impairment and negligent operation, we affirm.

         1. Background.

         a. The resort.

         The Sea Crest Beach Hotel is a resort in North Falmouth consisting of nine buildings, including a hotel, a restaurant, a bar, a retail shop, and a public beach. The restaurant, bar, shop, and beach are open to the public.

         The resort has one entrance and one exit and is accessible only by Quaker Road, a public way. To access the parking lot, drivers must pass by a gatehouse with a sign that says, "GUEST CHECK IN." Those not checking into the hotel are routinely permitted to drive by the gatehouse without stopping and park in the parking lot. The gatehouse has an attendant primarily on the weekends and only during the day.

         Occasionally, when the resort is busy, parking is restricted to hotel guests and beach club members.[1] At these times, the hotel puts out a sign reading, "Parking For Registered Hotel Guests and Beach Club Members Only." This sign, however, is never left out at night. "The only time [the resort] ha[s] a parking issue is during daylight hours when people want to go to the beach."

         b. The incident.

         On August 3, 2017, in the early hours of the morning, an employee of the resort saw a truck slowly moving in the resort parking lot. The employee, who was in charge of managing the parking lot, approached the truck and asked the driver, through the open driver's side window, if he needed assistance. The employee observed that the defendant, the driver of the truck, did not respond but had a glazed look on his face and appeared aggressive. The defendant then drove away, driving over a curb. The employee was concerned that the truck was disturbing guests because it was extremely noisy and ...


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