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
24-P-215
COMMONWEALTH
vs.
MAINOR A. ZEPEDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Boston Municipal Court, the
defendant was convicted of negligent operation of a motor
vehicle in violation of G. L. c. 90, § 24 (2) (a). The jury
acquitted him of operating a motor vehicle while under the
influence of liquor (OUI) in violation of G. L. c. 90,
§ 24 (1) (a) (1). On appeal, the defendant contends that
(1) the trial judge erred in denying his motion for required
finding of not guilty, and (2) testimony by a State trooper that
he arrested the defendant for operating under the influence
constituted prejudicial error. We affirm.
Background. In the light most favorable to the
Commonwealth, the jury could have found the following facts. At approximately 1:30 A.M. on January 19, 2020, State police
Trooper Ralph Dugue arrived at the scene of a disabled vehicle
in the Storrow Drive tunnel in Boston. He saw three people
standing outside a vehicle with heavy front-end damage and all
the airbags deployed. As the trooper walked toward the disabled
vehicle, the defendant approached and said he had been operating
the vehicle.
While talking to the defendant, the trooper noticed that
the defendant was unable to keep his balance, his speech was
slurred, and a strong scent of alcohol emanated from his breath.
The defendant admitted he had had one beer. The defendant
agreed to perform field sobriety tests (FSTs). On the nine-step
walk and turn test, the defendant was swaying and unbalanced,
did not take heel-to-toe steps as instructed, and took ten steps
rather than nine in each direction. On the one-leg stand test,
the defendant placed his foot on the ground several times,
swayed, and was "completely unbalanced."
The trooper placed the defendant under arrest. While
transporting the defendant, the trooper could smell a strong
odor of alcohol coming from him. Additionally, the trooper
testified that the defendant said he was not "too drunk" and
apologized for speeding.
Discussion. 1. Sufficiency of the evidence. "To sustain
a conviction of negligent operation, the Commonwealth must prove
2 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). On appeal, the defendant claims that
the judge erred in denying his motion for required finding of
not guilty because there was insufficient evidence as to the
first and third elements. We evaluate the sufficiency of the
Commonwealth's evidence to determine "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" (citation omitted).
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
a. Operation. The defendant claims that his confession to
operating the vehicle was insufficient to prove beyond a
reasonable doubt that he was, in fact, the operator because the
confession was uncorroborated. Indeed, "an uncorroborated
confession is 'insufficient to prove guilt.'" Commonwealth v.
Leonard, 401 Mass. 470, 472 (1988), quoting Commonwealth v.
Forde, 392 Mass. 453, 457 (1984). However, the corroboration
rule is quite minimal. "[It] requires only that there be some
evidence, besides the confession, that the criminal act was
committed by someone, that is, that the crime was real and not
imaginary." Forde, supra at 458. Moreover, "[t]he
3 corroborating evidence need not point to the accused's identity
as the doer of the crime." Id.
There was sufficient evidence here to corroborate the
defendant's confession to operating the vehicle. "To be sure, a
driver may be involved in a collision, even a single-car
collision, without acting negligently." Commonwealth v. Howe,
103 Mass. App. Ct. 354, 358 (2023). Here, however, the
defendant apologized to the trooper for speeding and the
extensive damage to the vehicle indicates the collision happened
with considerable force. These facts combined "point to the
accused's identity as the doer of the crime." Forde, 392 Mass.
at 458. Additionally, none of the other people standing by the
disabled vehicle said anything to contradict the defendant's
admission to being the operator. See Commonwealth v. Adams, 421
Mass. 289, 291-292 (1995) (failure of bystanders at scene of
accident to dispute defendant's identity as operator when
investigating officer clearly was treating him as such
corroborated defendant's admission to operating vehicle). As
such, the Commonwealth's evidence satisfied the minimal
corroboration requirement with respect to the defendant's
admission to operating the vehicle.
b. Negligence. The defendant also contends that the
Commonwealth's evidence only establishes that an accident
occurred, and evidence of an accident alone is insufficient to
4 establish negligent operation. The defendant is correct that
"[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
operator of the vehicle." Aucella v. Commonwealth, 406 Mass.
415, 418 (1990), quoting Callahan v. Lach, 338 Mass. 233, 235
(1958). However, we disagree that there was insufficient
evidence to prove that something more than a simple accident
occurred here.
"Proof of [the defendant's negligent] operation of a motor
vehicle may rest entirely on circumstantial evidence" (quotation
and citation omitted). Howe, 103 Mass. App. Ct. at 358. In
this context, negligence only "requires proof that the
defendant's conduct might have endangered the safety of the
public, not that it, in fact, did." Teixeira, 95 Mass. App. Ct.
at 369.
The Commonwealth presented sufficient circumstantial
evidence to establish beyond a reasonable doubt that the
defendant operated the vehicle in a negligent manner. The
deployment of the vehicle's airbags and the heavy front-end
damage the vehicle sustained show that the defendant was
operating the vehicle in a manner that might have put the safety
of others at risk. Additionally, the defendant admitted to
speeding and he exhibited several classic signs of intoxication,
5 including a strong scent of alcohol on his breath, slurred
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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
24-P-215
COMMONWEALTH
vs.
MAINOR A. ZEPEDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Boston Municipal Court, the
defendant was convicted of negligent operation of a motor
vehicle in violation of G. L. c. 90, § 24 (2) (a). The jury
acquitted him of operating a motor vehicle while under the
influence of liquor (OUI) in violation of G. L. c. 90,
§ 24 (1) (a) (1). On appeal, the defendant contends that
(1) the trial judge erred in denying his motion for required
finding of not guilty, and (2) testimony by a State trooper that
he arrested the defendant for operating under the influence
constituted prejudicial error. We affirm.
Background. In the light most favorable to the
Commonwealth, the jury could have found the following facts. At approximately 1:30 A.M. on January 19, 2020, State police
Trooper Ralph Dugue arrived at the scene of a disabled vehicle
in the Storrow Drive tunnel in Boston. He saw three people
standing outside a vehicle with heavy front-end damage and all
the airbags deployed. As the trooper walked toward the disabled
vehicle, the defendant approached and said he had been operating
the vehicle.
While talking to the defendant, the trooper noticed that
the defendant was unable to keep his balance, his speech was
slurred, and a strong scent of alcohol emanated from his breath.
The defendant admitted he had had one beer. The defendant
agreed to perform field sobriety tests (FSTs). On the nine-step
walk and turn test, the defendant was swaying and unbalanced,
did not take heel-to-toe steps as instructed, and took ten steps
rather than nine in each direction. On the one-leg stand test,
the defendant placed his foot on the ground several times,
swayed, and was "completely unbalanced."
The trooper placed the defendant under arrest. While
transporting the defendant, the trooper could smell a strong
odor of alcohol coming from him. Additionally, the trooper
testified that the defendant said he was not "too drunk" and
apologized for speeding.
Discussion. 1. Sufficiency of the evidence. "To sustain
a conviction of negligent operation, the Commonwealth must prove
2 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). On appeal, the defendant claims that
the judge erred in denying his motion for required finding of
not guilty because there was insufficient evidence as to the
first and third elements. We evaluate the sufficiency of the
Commonwealth's evidence to determine "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" (citation omitted).
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
a. Operation. The defendant claims that his confession to
operating the vehicle was insufficient to prove beyond a
reasonable doubt that he was, in fact, the operator because the
confession was uncorroborated. Indeed, "an uncorroborated
confession is 'insufficient to prove guilt.'" Commonwealth v.
Leonard, 401 Mass. 470, 472 (1988), quoting Commonwealth v.
Forde, 392 Mass. 453, 457 (1984). However, the corroboration
rule is quite minimal. "[It] requires only that there be some
evidence, besides the confession, that the criminal act was
committed by someone, that is, that the crime was real and not
imaginary." Forde, supra at 458. Moreover, "[t]he
3 corroborating evidence need not point to the accused's identity
as the doer of the crime." Id.
There was sufficient evidence here to corroborate the
defendant's confession to operating the vehicle. "To be sure, a
driver may be involved in a collision, even a single-car
collision, without acting negligently." Commonwealth v. Howe,
103 Mass. App. Ct. 354, 358 (2023). Here, however, the
defendant apologized to the trooper for speeding and the
extensive damage to the vehicle indicates the collision happened
with considerable force. These facts combined "point to the
accused's identity as the doer of the crime." Forde, 392 Mass.
at 458. Additionally, none of the other people standing by the
disabled vehicle said anything to contradict the defendant's
admission to being the operator. See Commonwealth v. Adams, 421
Mass. 289, 291-292 (1995) (failure of bystanders at scene of
accident to dispute defendant's identity as operator when
investigating officer clearly was treating him as such
corroborated defendant's admission to operating vehicle). As
such, the Commonwealth's evidence satisfied the minimal
corroboration requirement with respect to the defendant's
admission to operating the vehicle.
b. Negligence. The defendant also contends that the
Commonwealth's evidence only establishes that an accident
occurred, and evidence of an accident alone is insufficient to
4 establish negligent operation. The defendant is correct that
"[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
operator of the vehicle." Aucella v. Commonwealth, 406 Mass.
415, 418 (1990), quoting Callahan v. Lach, 338 Mass. 233, 235
(1958). However, we disagree that there was insufficient
evidence to prove that something more than a simple accident
occurred here.
"Proof of [the defendant's negligent] operation of a motor
vehicle may rest entirely on circumstantial evidence" (quotation
and citation omitted). Howe, 103 Mass. App. Ct. at 358. In
this context, negligence only "requires proof that the
defendant's conduct might have endangered the safety of the
public, not that it, in fact, did." Teixeira, 95 Mass. App. Ct.
at 369.
The Commonwealth presented sufficient circumstantial
evidence to establish beyond a reasonable doubt that the
defendant operated the vehicle in a negligent manner. The
deployment of the vehicle's airbags and the heavy front-end
damage the vehicle sustained show that the defendant was
operating the vehicle in a manner that might have put the safety
of others at risk. Additionally, the defendant admitted to
speeding and he exhibited several classic signs of intoxication,
5 including a strong scent of alcohol on his breath, slurred
speech, and the inability to stand straight. See Commonwealth
v. Zagwyn, 482 Mass. 1020, 1022 (2019) (evidence of intoxication
is relevant to negligent operation). The crash occurred in the
tunnel where there was no rain, snow, or sleet in the area. If
conditions in the tunnel were nonetheless hazardous, as the
defendant argues, the evidence was sufficient to prove that the
defendant did not exercise the level of care he should have.
The defendant exhibited signs of alcohol intoxication to the
point that he was swaying and unbalanced. In that condition he
operated his vehicle in a way that caused the front end of his
vehicle to be heavily damaged, and the crash was sufficiently
impactful that it caused the airbags to deploy.
The mere fact that the Commonwealth's evidence may support
more than one plausible explanation for the accident is "not of
legal significance so long as each [explanation] is legally
supportable under the Latimore standard." Commonwealth v.
Miranda, 458 Mass. 100, 114 (2010). "To the extent that
conflicting inferences may be drawn from the evidence, it is for
the jury to decide which version to credit." Id. at 113. The
Commonwealth's explanation for the accident -- the defendant's
negligence -- is legally supportable under Latimore. It was
therefore proper to leave the negligent operation charge to the
jury.
6 2. Trooper's testimony. The Commonwealth concedes that
the trooper erred in testifying that, based on his observations,
he arrested the defendant for OUI. See Commonwealth v. Canty,
466 Mass. 535, 544 (2013) (error for police officer testifying
as lay witness to testify to ultimate issue of guilt in OUI
case). Because the defendant objected to this testimony at
trial, we review for prejudicial error. See Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). "An error is not
prejudicial if it 'did not influence the jury, or had but very
slight effect'; however, if we cannot find 'with fair assurance,
after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error,' then it is prejudicial."
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting
Flebotte, 417 Mass. at 353.
We conclude that the error here was not prejudicial. The
trial judge immediately struck the testimony, instructed the
jury to disregard the statement, and clarified that it was
ultimately their job to decide whether the defendant had been
operating the vehicle under the influence of alcohol. See
Canty, 466 Mass. at 544-545. The jury are presumed to have
disregarded the trooper's statement in accordance with this
instruction. Commonwealth v. Williams, 450 Mass. 645, 651
(2008). Based on the strong evidence of the defendant's
7 intoxication, his admissions, his poor performance on the FSTs,
the extensive damage to the vehicle, and the acquittal on the
count of OUI, we conclude with fair assurance that the jury's
judgment was not substantially swayed by the error.
Judgment affirmed.
By the Court (Henry, Smyth & Toone, JJ.1),
Clerk
Entered: April 23, 2025.
1 The panelists are listed in order of seniority.