NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-787
COMMONWEALTH
vs.
DOMINICK CANTERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of
negligent operation of a motor vehicle in violation of G. L.
c. 90, § 24 (2) (a). On appeal, he claims that there was
insufficient evidence to support his conviction, the judge
improperly admitted evidence of the victim's injuries, the
prosecutor's closing argument improperly appealed to sympathy,
and that the judge improperly instructed himself on the law. We
affirm.
1. Sufficiency of the evidence. The defendant claims
there was insufficient evidence that he operated his car in a
negligent or reckless manner such that the lives or safety of
the public were endangered. We disagree. "When analyzing whether the record evidence is sufficient
to support a conviction, an appellate court is not required to
'ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.'" Commonwealth v.
Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting
Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).
Nor are we obligated to "reread the record from a [defendant]'s
perspective." Commonwealth v. Duncan, 71 Mass. App. Ct. 150,
152 (2008), quoting Palmariello v. Superintendent of M.C.I.
Norfolk, 873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S.
865 (1989). Rather, the relevant "question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
When evaluating sufficiency, the evidence must be reviewed
with specific reference to the substantive elements of the
offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.
at 677–678. To convict a defendant 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."
2 Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 369 (2019).
The defendant challenges only the third element.
In the light most favorable to the Commonwealth, the fact
finder was entitled to conclude that even though it was evening,
the defendant was capable of seeing the illuminated victim in
the ice-free roadway. The dashcam video depicts the victim
crossing the road, dropping a bag, and bending over to retrieve
it prior to being struck by the defendant's car. The video also
shows the defendant's headlights illuminating the victim for at
least one second prior to impact. Within one second after
impact, the defendant is able to stop his car. The fact finder
was also entitled to find that prior to impact, the defendant
did not slow down his car or apply his brakes.
An eyewitness, who was driving on the same road but in the
opposite direction as the defendant, was able to see the victim
in the roadway from less than one hundred feet away. The
witness slowed her car to a near stop when a car in front of
hers slowed down due to the victim being in the roadway. From
this evidence, the fact finder was reasonably entitled to infer
that the defendant should have seen the victim in time to stop.1
1 In his brief, the defendant claims that he could not see the victim at night because of the oncoming headlights. However, the defendant did not testify. Even if there was evidence of this, the argument ignores our standard of review. See Latimore, 378 Mass. at 677. In fact, were we "to indulge
3 See Commonwealth v. Casale, 381 Mass. 167, 173 (1980)
(inferences drawn by fact finder "need only be reasonable and
possible and need not be necessary or inescapable").
From all the evidence, the fact finder was entitled to find
that the victim could be seen in the roadway, that the defendant
had enough time to stop and avoid the collision, and due to his
inattention, "the lives or safety of the public might [have
been] endangered." Teixeira, 95 Mass. App. Ct. at 369. See
Commonwealth v. Hardy, 482 Mass. 416, 424 (2019) (defendant's
failure to brake before collision showed "inattentiveness to the
road"); Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219
(2006) (defendant struck pedestrian "without having taken any
evasive action, such as applying her brakes"). Accordingly, the
evidence was sufficient for the fact finder to conclude that the
defendant negligently operated his car. See Teixeira, supra.
Also, although the Commonwealth was required only to prove that
the defendant's conduct might have endangered the safety of the
public, here it actually did endanger the safety of the public
this argument, we would have to view the evidence in the light least favorable to the Commonwealth, which, of course, we cannot do." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010). See Commonwealth v. Campbell, 394 Mass. 77, 83 (1985) ("Although the defendant mentioned that the high beam lights of an oncoming car somewhat obstructed his view, the jury could choose not to believe him").
4 when he struck the pedestrian. See Commonwealth v. Duffy, 62
Mass. App. Ct. 921, 923 (2004).
2. The victim's injuries. The defendant also claims that
it was error to allow the victim, over objection, to testify to
the nature and extent of his injuries sustained as a result of
being struck by the defendant's car. We disagree.
We review any error in the admission of this evidence "for
prejudicial error resulting from an abuse of discretion."
Commonwealth v. Gomez, 495 Mass. 688, 696 (2025). "The weighing
of the prejudicial effect and probative value of evidence is
within the sound discretion of the trial judge, the exercise of
which we will not overturn unless we find palpable error."
Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 307 (2008),
quoting Commonwealth v. Bonds, 445 Mass. 821, 831 (2006). The
evidence of the victim's injuries here was properly admitted.
See Commonwealth v. Cohen, 27 Mass. App. Ct. 1210, 1211 (1989)
("Whether a person suffers injuries as a result of an automobile
accident, as well as the nature of the injuries, is relevant to
the crucial question whether the manner of operation was so
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-787
COMMONWEALTH
vs.
DOMINICK CANTERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of
negligent operation of a motor vehicle in violation of G. L.
c. 90, § 24 (2) (a). On appeal, he claims that there was
insufficient evidence to support his conviction, the judge
improperly admitted evidence of the victim's injuries, the
prosecutor's closing argument improperly appealed to sympathy,
and that the judge improperly instructed himself on the law. We
affirm.
1. Sufficiency of the evidence. The defendant claims
there was insufficient evidence that he operated his car in a
negligent or reckless manner such that the lives or safety of
the public were endangered. We disagree. "When analyzing whether the record evidence is sufficient
to support a conviction, an appellate court is not required to
'ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.'" Commonwealth v.
Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting
Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999).
Nor are we obligated to "reread the record from a [defendant]'s
perspective." Commonwealth v. Duncan, 71 Mass. App. Ct. 150,
152 (2008), quoting Palmariello v. Superintendent of M.C.I.
Norfolk, 873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S.
865 (1989). Rather, the relevant "question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
When evaluating sufficiency, the evidence must be reviewed
with specific reference to the substantive elements of the
offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.
at 677–678. To convict a defendant 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."
2 Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 369 (2019).
The defendant challenges only the third element.
In the light most favorable to the Commonwealth, the fact
finder was entitled to conclude that even though it was evening,
the defendant was capable of seeing the illuminated victim in
the ice-free roadway. The dashcam video depicts the victim
crossing the road, dropping a bag, and bending over to retrieve
it prior to being struck by the defendant's car. The video also
shows the defendant's headlights illuminating the victim for at
least one second prior to impact. Within one second after
impact, the defendant is able to stop his car. The fact finder
was also entitled to find that prior to impact, the defendant
did not slow down his car or apply his brakes.
An eyewitness, who was driving on the same road but in the
opposite direction as the defendant, was able to see the victim
in the roadway from less than one hundred feet away. The
witness slowed her car to a near stop when a car in front of
hers slowed down due to the victim being in the roadway. From
this evidence, the fact finder was reasonably entitled to infer
that the defendant should have seen the victim in time to stop.1
1 In his brief, the defendant claims that he could not see the victim at night because of the oncoming headlights. However, the defendant did not testify. Even if there was evidence of this, the argument ignores our standard of review. See Latimore, 378 Mass. at 677. In fact, were we "to indulge
3 See Commonwealth v. Casale, 381 Mass. 167, 173 (1980)
(inferences drawn by fact finder "need only be reasonable and
possible and need not be necessary or inescapable").
From all the evidence, the fact finder was entitled to find
that the victim could be seen in the roadway, that the defendant
had enough time to stop and avoid the collision, and due to his
inattention, "the lives or safety of the public might [have
been] endangered." Teixeira, 95 Mass. App. Ct. at 369. See
Commonwealth v. Hardy, 482 Mass. 416, 424 (2019) (defendant's
failure to brake before collision showed "inattentiveness to the
road"); Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219
(2006) (defendant struck pedestrian "without having taken any
evasive action, such as applying her brakes"). Accordingly, the
evidence was sufficient for the fact finder to conclude that the
defendant negligently operated his car. See Teixeira, supra.
Also, although the Commonwealth was required only to prove that
the defendant's conduct might have endangered the safety of the
public, here it actually did endanger the safety of the public
this argument, we would have to view the evidence in the light least favorable to the Commonwealth, which, of course, we cannot do." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010). See Commonwealth v. Campbell, 394 Mass. 77, 83 (1985) ("Although the defendant mentioned that the high beam lights of an oncoming car somewhat obstructed his view, the jury could choose not to believe him").
4 when he struck the pedestrian. See Commonwealth v. Duffy, 62
Mass. App. Ct. 921, 923 (2004).
2. The victim's injuries. The defendant also claims that
it was error to allow the victim, over objection, to testify to
the nature and extent of his injuries sustained as a result of
being struck by the defendant's car. We disagree.
We review any error in the admission of this evidence "for
prejudicial error resulting from an abuse of discretion."
Commonwealth v. Gomez, 495 Mass. 688, 696 (2025). "The weighing
of the prejudicial effect and probative value of evidence is
within the sound discretion of the trial judge, the exercise of
which we will not overturn unless we find palpable error."
Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 307 (2008),
quoting Commonwealth v. Bonds, 445 Mass. 821, 831 (2006). The
evidence of the victim's injuries here was properly admitted.
See Commonwealth v. Cohen, 27 Mass. App. Ct. 1210, 1211 (1989)
("Whether a person suffers injuries as a result of an automobile
accident, as well as the nature of the injuries, is relevant to
the crucial question whether the manner of operation was so
negligent as to endanger lives and safety of members of the
public"). See also Doyle, supra ("testimony as to the locations
and conditions of the victims immediately after the crash"
5 relevant to prove reckless or negligent conduct element of motor
vehicle homicide charge).
Moreover, when the defendant objected, the judge stated
that he was going to admit the evidence "on a limited basis."
Because this was a jury-waived trial, we presume that the judge
properly considered the evidence as it related to the manner of
operation and not as an improper appeal to his sympathy or
emotions. See Commonwealth v. McGrath, 497 Mass. 369, 375
(2026).
3. Closing argument. The defendant further claims that
the prosecutor improperly appealed to sympathy in her closing
argument by referencing the victim's injuries and his hospital
care. However, this claim misstates the record. The challenged
remarks were not made in the prosecutor's closing, but rather,
they were made in response to the judge's query as to the
Commonwealth's sentencing recommendation.
4. The judge's findings. Finally, the defendant claims
the judge failed to properly instruct himself on the law,
improperly considered inadmissible evidence, and based his
verdict on sympathy. We disagree, as this argument too is based
on a misstatement of the record.
The defendant claims the judge's verdict was swayed by
sympathy for the victim when the judge stated that this case
6 could "just as easily be a civil motor vehicle infraction, quite
frankly. In this particular case, given the injuries sustained
by [the victim], I do take that into consideration." The
defendant claims that the victim's injuries were not relevant
and not probative of guilt, and he also argues that the above
statements demonstrate that the judge did not instruct himself
properly on the law.
The problem with the defendant's argument is that the judge
did not make these statements when he explained his guilty
verdict.2 Rather, the judge made these observations just before
he sentenced the defendant.3 "[T]he transcript reflects that, in
sentencing the defendant, the judge properly considered the
nature and circumstances surrounding the commission of the
crime . . . and the significant injuries the victim sustained."
Commonwealth v. McGonagle, 478 Mass. 675, 678 n.3 (2018). There
was no impropriety.
When the judge did explain his verdict, he found that speed
was not a factor, discussed what he saw on the video, what he
2 Better attention to the record would have avoided the misstatements made in the defendant's brief and obviated the need to review baseless claims.
3 The judge did not think the defendant deserved jail time and instead placed him on probation, which included fifty hours of public service, a $250 head injury fee, and a $50 victim witness fee.
7 heard from the witnesses, and determined that the victim should
have been visible to the defendant. He further stated that at
no point did the defendant slow down until the car struck the
victim. He noted the importance of that fact and the applicable
negligence standard. The judge said the defendant was
inattentive that night, i.e., he never saw the victim, and he
failed to brake in a timely fashion before hitting the victim.
These findings reflect a proper understanding of controlling
precedent. See Hardy, 482 Mass. at 424-425; Reynolds, 67 Mass.
App. Ct. at 219. At the very least, they do not rebut the
presumption that the judge properly instructed himself on the
law. See Commonwealth v. Sepheus, 468 Mass. 160, 170 (2014).
Judgment affirmed.
By the Court (Meade, D'Angelo & Tan, JJ.4),
Clerk
Entered: May 18, 2026.
4 The panelists are listed in order of seniority.