Commonwealth v. Rogerio Depina.

• Court: Massachusetts Appeals Court
• Decided: March 28, 2025
• Docket: 24-P-0008
• Status: Unpublished

Opinion

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-8

COMMONWEALTH

vs.

ROGERIO DEPINA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial in the District Court, the judge found

the defendant, Rogerio Depina, guilty of negligent operation of

a motor vehicle in violation of G. L. c. 90, § 24 (2) (a), and

acquitted the defendant of operating a motor vehicle under the

influence of alcohol, see G. L. c. 90, § 24 (1) (a) (1). On

appeal, the defendant argues that the evidence was insufficient

to prove that he operated his vehicle in a negligent manner. We

affirm.

Background. On August 20, 2021, at around 2:30 A.M.,

Officer Scott Miller was dispatched to a location on Derby

Street in Hingham near the on-ramp to Route 3 north. When he

arrived he saw a vehicle with heavy front-end damage and no front tires. The vehicle was backing up toward the on-ramp.

When Miller activated his blue lights, the vehicle pulled over

to the side of the road and parked facing the wrong way on the

on-ramp. The defendant stepped out. Miller saw two tires in

the back seat of the vehicle. From where it was parked, the

road was covered with gouge marks that appeared to have been

made by the vehicle's exposed rims where the front tires were

supposed to be. The gouge marks led to the curb and, where the

vehicle had "hopped up on the curb," to a damaged guardrail.

The defendant denied having been in a crash and claimed

that his tires "had just blown out" and gone flat. The

defendant's speech was slurred and slow, and Miller smelled the

odor of alcohol coming from the defendant's face. The defendant

denied having consumed alcohol, but conceded that the odor

Miller smelled "might be beer." When asked his opinion of the

defendant's sobriety, Miller answered, "I formed an opinion he

was impaired."

Discussion. "In determining the validity of a claim

challenging the sufficiency of the Commonwealth's evidence at

trial, we review the evidence in the light most favorable to the

Commonwealth to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt" (quotation and citation omitted).

Commonwealth v. Tantillo, 103 Mass. App. Ct. 20, 25-26 (2023).

2 To prove negligent operation, "the Commonwealth must show 'that

the defendant (1) operated a motor vehicle, (2) on a public way,

and (3) (recklessly or) negligently so that the lives or safety

of the public might be endangered.'" Id. at 26, quoting

Commonwealth v. Daley, 66 Mass. App. Ct. 254, 255 (2006). The

defendant contests only the third element.

Drivers have the duty "to exercise ordinary care for the

safety of others while operating the vehicle." Commonwealth v.

Angelo Todesca Corp., 446 Mass. 128, 137 (2006). The

Commonwealth is not required to prove that the defendant's

driving caused a collision, near collision, or injury. See

Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 219 (2019). A

conviction for negligent operation "only requires proof that the

defendant's conduct might have endangered the safety of the

public, not that it in fact did." Commonwealth v. Ferreira, 70

Mass. App. Ct. 32, 35 (2007).

We can readily infer that the defendant lost control of his

vehicle, hit the curb with enough impact to separate the front

tires from the rims, and crashed into the guardrail. But

because the Commonwealth presented no evidence of what caused

the defendant to lose control, the judge did not base her guilty

finding on the accident. Rather, the judge found that instead

of leaving his car by the side of the road, getting out of the

car, and calling for help, the defendant made the unreasonable

3 decision to retrieve his tires, throw them into the back of his

car, get back in, and attempt to drive away. He backed "out

into the road," leaving gouge marks as he went, and continued

until Miller arrived and activated his blue lights. The video

footage from Miller's dashboard camera shows that the defendant

drove his dark-colored car, missing two front tires, with the

headlights off in the dead of night, in the middle of the travel

lane of the on-ramp. "In short, this was not a case where the

Commonwealth relied on the mere happening of [an] accident to

prove negligent operation" (quotation and citation omitted).

Commonwealth v. Howe, 103 Mass. App. Ct. 354, 359 (2023). The

defendant's negligence after the accident created a risk of a

disastrous collision.

Moreover, the Commonwealth presented evidence that the

defendant was intoxicated. See Commonwealth v. Woods, 414 Mass.

343, 350 (1993) (evidence that defendant had been drinking

"patently relevant to whether the defendant exercised reasonable

care while driving"). The judge could consider the defendant's

intoxication as additional evidence of negligent operation even

though she acquitted him of operating under the influence. See

Commonwealth v. Zagwyn, 482 Mass. 1020, 1021-1022 (2019);

Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017).

Considering the totality of the evidence, we have no trouble

concluding that a rational fact finder could have found that the

4 defendant's manner of operating the vehicle might have

endangered the public.

Judgment affirmed.

By the Court (Massing, Hershfang & Tan, JJ.1),

Clerk

Entered: March 28, 2025.

1 The panelists are listed in order of seniority.