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
2

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
11

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.