Commonwealth v. Howe

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22-P-631 Appeals Court
COMMONWEALTH vs. SHAWN W. HOWE.
No. 22-P-631.
Middlesex. June 6, 2023. - September 15, 2023.
Present: Massing, Ditkoff, & Singh, JJ.
Motor Vehicle, Operation. Negligence, Motor vehicle. Practice,
Criminal, Required finding.
Complaint received and sworn to in the Lowell Division of
the District Court Department on October 8, 2020.
The case was tried before Stephen B. Geary, J.
Laurie Yeshulas for the defendant.
Aaron Staudinger, Assistant District Attorney, for the
Commonwealth.
DITKOFF, J. The defendant, Shawn W. Howe, appeals from his
conviction, after a jury trial in the District Court, of
negligent operation of a motor vehicle, G. L. c. 90,
§ 24 (2) (a), contending that the evidence was insufficient. In
light of an officer's informed opinion that the defendant
crossed the double yellow line and collided with a telephone
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pole and two mailboxes on the opposite side of the street, the
extensive damage to the defendant's motor vehicle from a single-
vehicle collision, and the defendant's admission that he was
unfamiliar with the area, we affirm.
1. Background. a. The collision. On Saturday, August
29, 2020, at approximately 12:25 P.M., the defendant's vehicle
collided with a telephone pole and two mailboxes on North Street
in Tewksbury. It was raining heavily at the time. A police
officer arrived on scene and observed a vehicle with extensive
damage sitting partially in the street and partially in a
resident's front yard. No other vehicle was involved in the
collision.
The officer approached the vehicle and observed the
defendant trapped in the driver's seat. All of the driver's
side airbags were deployed. The officer asked the defendant
what had happened, and the defendant said that "he was
unfamiliar with the area and hit a telephone pole." Given the
vehicle's extensive damage, the defendant was unable to open the
door. The fire department arrived on scene and used "a heavy
tool" to cut through the vehicle's metal door and remove the
defendant from the driver's seat.
The officer observed "heavy damage" to the front portion of
the vehicle, including the driver's side front tire and the
driver's side front windshield. The officer also observed
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"heavy damage" to the bottom portion of a telephone pole and
damage to two mailboxes, one of which sustained damage to the
post bracket, and the other of which was knocked over
completely. A stone retaining wall, which was approximately
five inches tall and provided a barrier between one of the
mailboxes and the telephone pole, also was damaged. The
telephone pole, the two mailboxes, and the retaining wall were
all within six to ten feet of each other.
The officer testified that he was trained in motor vehicle
accidents and had responded to approximately fifty to one
hundred accidents. Based on his experience and observations,
the officer opined that the defendant had been traveling south
on North Street when his vehicle "cross[ed] over the double
yellow line and into the complete opposite lane of travel." The
officer opined that the vehicle first hit a mailbox and then
struck the retaining wall and the telephone pole. The officer
explained that the impact of striking the telephone pole caused
the vehicle to reverse the direction in which it had been
traveling and that, in the process, the vehicle "struck the
other mailbox." The officer further testified that there are no
sidewalks on North Street, and he has "see[n] residents running,
jogging, or walking their dogs" on the street.
b. Procedural history. A criminal complaint issued from
the District Court charging the defendant with operating a motor
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vehicle while under the influence of drugs, second offense,
G. L. c. 90, § 24 (1) (a) (1); negligent operation of a motor
vehicle; and the civil infraction of a marked lanes violation,
G. L. c. 89, § 4A. On the day of trial, the judge dismissed the
charge of operating a motor vehicle while under the influence of
drugs, with the Commonwealth's agreement, because the
Commonwealth did not have the expert it needed to prove the
charge. The judge instructed the parties not to refer to
anything related to or suggesting that the defendant was under
the influence of drugs. At trial, the responding officer
testified, and the Commonwealth introduced photographs depicting
the damage to the defendant's motor vehicle, the telephone pole,
the mailboxes, and the retaining wall. After the Commonwealth
rested its case, the defendant moved for a required finding of
not guilty pursuant to Mass. R. Crim. P. 25 (a), as amended, 420
Mass. 1502 (1995), and the judge denied the motion.
Following closing arguments, the judge instructed the jury,
inter alia, that the existence of an accident alone is not
sufficient to prove negligent operation. That same day, the
jury returned a guilty verdict. The judge sentenced the
defendant to one year of probation and found the defendant not
responsible for the marked lanes violation.
On August 13, 2021, the defendant renewed his motion for a
required finding of not guilty pursuant to Mass. R. Crim.
5
P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). Before there
was any decision on the motion, the defendant filed a timely
notice of appeal from the conviction.1 On September 13, 2021,
after a hearing, the judge denied the motion in a margin
endorsement. After a single justice of this court allowed the
defendant additional time to appeal from the denial of that
motion, the defendant filed another notice of appeal.2 This
1 Although the filing of a rule 25 (b) (2) motion within
thirty days of sentencing tolls the time to file a notice of
appeal, see Mass. R. A. P. 4 (b) (2), as appearing in 489 Mass.
1601 (2022), the pendency of such a motion does not make a
notice of appeal ineffective. Cf. Mass. R. A. P. 4 (a) (3), as
appearing in 481 Mass. 1606 (2019) (in civil cases, "[a] notice
of appeal filed before the disposition of any timely motion
listed in Rule 4 [a] [2] shall have no effect"). But cf. Tocci
Bldg. Corp. v. IRIV Partners, LLC, 101 Mass. App. Ct. 133, 136
n.5 (2022), quoting Roch v. Mollica, 481 Mass. 164, 165 n.2
(2019) (rule 4 [a] not applicable where "no action on the appeal
had yet been taken before the motion for reconsideration was
decided").
2 The single justice granted the defendant leave to file the
notice of appeal on or before April 8, 2022. Although the
notice of appeal is stamped April 19, 2022, a District Court
judge found, based on the affidavit of the defendant's counsel,
that the notice of appeal was filed on or before April 8. The
Commonwealth, appropriately enough, did not appeal from the
judge's factual determination regarding when the notice was
filed. Although we have the authority to consider sua sponte
whether an appeal is timely, the judge's factual determination
when the notice of appeal was filed, like a judge's
determination that excusable neglect exists under Mass. R. A. P.
4 (c), as appearing in 481 Mass. 1606 (2019), is not reviewed
unless the adverse party appeals from the judge's determination.
See Commonwealth v. Cordeiro, 102 Mass. App. Ct. 211, 215
(2023).
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appeal, from both the judgment and the denial of the renewed
motion, followed.
2. Standard of review. "[W]e consider the evidence
introduced at trial in the light most favorable to the
Commonwealth, and determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Lagotic, 102 Mass. App. Ct.
405, 407 (2023), quoting Commonwealth v. Tsonis, 96 Mass. App.
Ct. 214, 216 (2019). "The inferences that support a conviction
'need only be reasonable and possible; [they] need not be
necessary or inescapable.'" Commonwealth v. Wheeler, 102 Mass.
App. Ct. 411, 413 (2023), quoting Commonwealth v. Ross, 92 Mass.
App. Ct. 377, 378 (2017). The standard of review is the same in
the context of a defendant's motion for a required finding of
not guilty presented at the close of the Commonwealth's case
pursuant to Mass. R. Crim. P. 25 (a) as it is in the context of
a defendant's renewed motion for a required finding of not
guilty pursuant to Mass. R. Crim. P. 25 (b) (2). See
Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 583-584 (1999).3
3 The fact that the judge ultimately found the defendant not
responsible on the marked lanes violation has no bearing on
whether the jury could have found that the defendant crossed
over the lane or whether the judge should have allowed the
defendant's motion for a required finding of not guilty. A jury
may acquit the defendant on one charge and find the defendant
guilty on a different charge, even if certain evidence goes to
both charges. See Commonwealth v. Ross, 92 Mass. App. Ct. 377,
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3. Sufficiency of the evidence of negligent operation.
"To sustain a conviction of negligent operation, the
Commonwealth must prove that the defendant (1) operated a motor
vehicle, (2) on a public way, and (3) negligently, so that the
lives or safety of the public might be endangered."
Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 369 (2019).
The defendant contests only the third element.4
"Negligence in this context is determined by the same
standard that is employed in tort law." Teixeira, 95 Mass. App.
Ct. at 369, quoting Commonwealth v. Duffy, 62 Mass. App. Ct.
921, 922 n.2 (2004). "Negligence . . . in its ordinary sense,
is the failure of a responsible person, either by omission or by
378 (2017) ("jury acquitted the defendant of [operating a motor
vehicle while under the influence] and convicted him of
negligent operation"). This concept applies with even more
force where there are different fact finders at trial. See
Commonwealth v. Daigle, 99 Mass. App. Ct. 107, 107 & n.1 (2021)
(jury "convicted [the defendant] of operating a motor vehicle
while under the influence" and "[t]he judge found her not
responsible for a marked lanes violation").
4 The officer testified that North Street is maintained by
the town of Tewksbury and features streetlights and street
signs. See Commonwealth v. Virgilio, 79 Mass. App. Ct. 570, 573
(2011) ("presence of street lights, hydrants, curbing, and
paving" support inference of public way); Commonwealth v.
Cabral, 77 Mass. App. Ct. 909, 910 (2010) (sufficient evidence
of public way where there was street sign on corner and officer
testified city maintains street). The officer also testified
that the defendant was trapped in the driver's seat and admitted
to operating the vehicle. See Commonwealth v. Moreau, 490 Mass.
387, 388 (2022) ("The officer spoke with the defendant, who was
seated in the driver's seat and admitted that he was the
operator of the vehicle").
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action, to exercise that degree of care, vigilance and
forethought which . . . the person of ordinary caution and
prudence ought to exercise under the particular circumstances."
McGovern v. State Ethics Comm'n, 96 Mass. App. Ct. 221, 232 n.25
(2019), quoting Commonwealth v. Angelo Todesca Corp., 446 Mass.
128, 137 (2006). "Proof of [the defendant's negligent]
operation of a motor vehicle may 'rest entirely on
circumstantial evidence.'" Commonwealth v. Petersen, 67 Mass.
App. Ct. 49, 52 (2006), quoting Commonwealth v. Cromwell, 56
Mass. App. Ct. 436, 438 (2002).
"The statute requires proof that the defendant's conduct
might have endangered the safety of the public, not that it, in
fact, did." Tsonis, 96 Mass. App. Ct. at 219, quoting Teixeira,
95 Mass. App. Ct. at 369. Moreover, negligent operation can be
found when a person "operate[s] a vehicle in such a way that
would endanger the public although no other person is on the
street." Commonwealth v. Constantino, 443 Mass. 521, 526-527
(2005).
To be sure, a driver may be involved in a collision, even a
single-car collision, without acting negligently. See Aucella
v. Commonwealth, 406 Mass. 415, 418 (1990). That is because
"[t]he mere happening of an accident . . . , where the
circumstances immediately preceding it are left to conjecture,
is not sufficient to prove negligence on the part of the
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operator of the vehicle." Id., quoting Callahan v. Lach, 338
Mass. 233, 235 (1958). Accidents happen, and sometimes they are
the result simply of bad luck, not error.
Here, however, the Commonwealth did not rely solely on
evidence that a collision had occurred but rather presented
more. The extensive damage to the defendant's motor vehicle,
the telephone pole, and the mailboxes demonstrates that the
collision occurred with considerable force. See Commonwealth v.
Moreau, 490 Mass. 387, 388 (2022) (responding officer observed
single motor vehicle collision involving "a pickup truck that
had collided with a tree off the side of the road, suffering
extensive front-end damage"). Based on his experience and
observations, the officer determined that the defendant's motor
vehicle appeared to have "cross[ed] over the double yellow line
and into the complete opposite lane of travel," causing it to
strike a telephone pole and a mailbox before spinning around and
striking another mailbox.5 See Commonwealth v. Daley, 66 Mass.
5 The defendant challenged the officer's opinion regarding
the defendant's intoxication, and the judge excluded any such
opinion. The defendant did not challenge, either at trial or on
appeal, the officer's ability to opine about how the collision
unfolded. Under these circumstances, a judge is permitted to
implicitly qualify a witness as an expert. See Commonwealth v.
Ruiz, 442 Mass. 826, 834 (2004); Commonwealth v. Bouley, 93
Mass. App. Ct. 709, 714 (2018). In any event, "sufficiency is
determined in light of the evidence admitted at trial,
regardless of the propriety of that admission." Commonwealth v.
Silvia, 97 Mass. App. Ct. 151, 155 n.9 (2020).
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App. Ct. 254, 256 (2006) (driving "back and forth over the fog
line on the left hand side of the road, [and] cross[ing] over
two lanes of traffic" before nearly striking road work sign was
evidence of negligent operation). Moreover, the defendant
admitted that "he was unfamiliar with the area and hit a
telephone pole," suggesting that he knew he should have been
driving with particular care in light of his unfamiliarity with
the area. This admission, together with the crossing of the
double yellow line and the extensive damage, permitted an
inference that the defendant was not driving with the care he
ought to have been exercising under the circumstances of the
rainy conditions and the defendant's unfamiliarity with the
area.
In short, this was not a case where the Commonwealth relied
on "the mere happening of [an] accident" to prove negligent
operation. Angelo Todesca Corp., 446 Mass. at 144 (Cordy, J.,
dissenting), quoting Zarrillo v. Stone, 317 Mass. 510, 512
(1945). Instead, a reasonable jury could have concluded beyond
a reasonable doubt, from the manner in which the collision
occurred, the extent of the damage, and the defendant's
admission, that negligent operation was the cause of this
particular collision. Accordingly, the evidence was sufficient
for the jury "to find that the defendant operated his vehicle
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negligently so that the lives or safety of the public might be
endangered." Tsonis, 96 Mass. App. Ct. at 220.
4. Conclusion. The judgment is affirmed. The order
denying the defendant's renewed motion for a required finding of
not guilty is affirmed.
So ordered.