Commonwealth v. Dominick Cantero.

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."

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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").

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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"

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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

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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.

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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.

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