COMMONWEALTH vs. AUBURN J. PERRY.

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-1191
COMMONWEALTH
vs.
AUBURN J. PERRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant,
Auburn J. Perry, was convicted of negligent operation of a motor
vehicle, in violation of G. L. c. 90, § 24 (2) (a). On appeal,
the defendant claims there was insufficient evidence to support
his conviction. We affirm.
Sufficiency of the evidence. When reviewing the denial of
a motion for a required finding of not guilty, we "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" (citation omitted). Commonwealth v. Lagotic,
102 Mass. App. Ct. 405, 407 (2023). Our analysis is not whether

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we "believe[] that the evidence at the trial established guilt
beyond a reasonable doubt"; rather, it is whether "any rational
trier of fact could have" (citations omitted). Commonwealth v.
Rocheteau, 74 Mass. App. Ct. 17, 19 (2009). "The inferences
that support a conviction need only be reasonable and possible;
[they] need not be necessary or inescapable" (quotation and
citation omitted). Commonwealth v. Howe, 103 Mass. App. Ct.
354, 357 (2023).
"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) [did so] negligently, so
that the lives or safety of the public might be endangered"
(citation omitted). Howe, 103 Mass. App. Ct. at 357. Only the
third element is at issue in this appeal. To establish
negligence, the Commonwealth need only show that "the
defendant's conduct might have endangered the safety of the
public, not that it, in fact, did" (citation omitted). Id. at
358. "Negligence in this context is determined by the same
standard that is employed in tort law" (citation omitted).
Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 369 (2019).
Here, based on the traffic surveillance video exhibit, the
defendant's admissions, and the officers' observations, a
rational finder of fact could have found that the defendant
drove his van on heavily trafficked multilane roadways in

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Norwood without its front right wheel. Given the considerable
damage to the front right wheel well, passenger's side door, and
front bumper, as well as the fact that the defendant was
actively bleeding from a cut on his cheek at the time officers
spoke with him, a rational trier of fact could have inferred
that the defendant had gotten into an accident in which the van
had lost the wheel.
The traffic surveillance video admitted at trial further
supported inferences that the defendant's operation of the
three-wheeled van was negligent. First, there was evidence from
which an inference could be drawn that the defendant was having
difficulty controlling the vehicle. The van visibly listed to
the right the entire time it moved. In fact, photographs of the
parking lot showed that the van rested on the front right axle
which had also left drag marks on the pavement. Additionally,
as the van entered the intersection, it straddled two lanes of
traffic before making a right-hand turn. Further, there was
evidence of precautions the defendant did not take. Although
the defendant told officers that he was aware that something was
wrong with the van as he was driving, at no point did he
activate the van's hazard lights. The defendant also drove past
a pull-off and a shoulder on the roadway where he could have
safely stopped the vehicle outside the flow of traffic but opted
to continue driving instead.

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Moreover, a rational trier of fact could have concluded
that the defendant operated the van without the front right
wheel for a not-insignificant distance. When the police spoke
with the defendant, he said that he believed he had hit a
pothole a short distance from where he eventually parked the
van. Upon searching that area, however, they found no evidence
of a pothole, the defendant's wheel, or other evidence of a
motor vehicle accident. An investigating officer additionally
testified there was no evidence the van had been in an accident
in Norwood. Although negligent operation is not dependent on
duration or distance, a rational trier of fact could reasonably
consider the overall distance that the defendant operated the
van without the front right wheel as evidence that his conduct
might have endangered the safety of the public. See
Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007).
Finally, a rational trier of fact could rely on the
evidence that the defendant was intoxicated while driving. Two
officers who interacted with the defendant testified that he
smelled of alcohol. One officer testified the defendant had
bloodshot glassy eyes. Another officer found an empty alcohol
container in the front seat of the van. The defendant admitted
to the officers that he had consumed alcohol earlier that day.
Although the defendant successfully completed three field
sobriety tests, was able to walk around on his own, and did not

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slur his speech, the arresting officers nevertheless opined that
the defendant was intoxicated. See Commonwealth v. Ross, 92
Mass. App. Ct. 377, 380-381 (2017).
Accordingly, "this was not a case where the Commonwealth
relied on the mere happening of [an] accident to prove negligent
operation" (quotation and citation omitted). Howe, 103 Mass.
App. Ct. at 359. Rather, a rational trier of fact could have
concluded beyond a reasonable doubt from the evidence recounted
above that the defendant operated his vehicle in a way that
might have endangered the public.
Judgment affirmed.
By the Court (Vuono, Meade &
Hillman, JJ.1),
Clerk
Entered: October 14, 2026.
1 The panelists are listed in order of seniority.