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

22-P-302

COMMONWEALTH

vs.

JOSE A. ROMAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a District Court judge's order 

revoking his probation. The judge ruled that the defendant 

violated his probation by (1) committing new criminal offenses, 

operation of a motor vehicle with a suspended license and 

negligent operation of a motor vehicle, and (2) testing positive 

for cocaine and failing, nine times, to appear for scheduled 

drug testing. On appeal, the defendant claims that (1) the 

judge erroneously relied on unreliable hearsay, (2) there was 

insufficient evidence to find him in violation of the terms of 

his probation, and (3) his due process rights were violated.

After reconsideration, we conclude that the evidence was 

sufficient to support the violations based on the drug testing 

and the new offense of operating with a suspended license. 

However, because we cannot say with certainty that the judge 
2

would have revoked the defendant's probation absent the 

violation for negligent operation, we remand for redetermination 

and resentencing under Commonwealth v. King, 96 Mass. App. Ct. 

703, 710-713 (2019). See Commonwealth v. Durling, 407 Mass. 

108, 111 (1990).

Background. We recite the facts as presented at the 

surrender hearing, reserving certain facts for later discussion. 

After being convicted of drug-related offenses, the defendant 

was placed on probation subject to conditions, including that he 

(1) submit to random drug testing, (2) remain drug-free, and (3) 

obey the law. He was alleged to have violated those conditions 

by failing to comply with the drug testing requirements and

committing three motor vehicle offenses.

At the hearing on the probation violation, the defendant’s 

probation officer testified that the defendant missed nine 

random drug screens, offering the "results" of the drug tests to 

prove these missed appointments, and that the defendant tested 

positive for cocaine on October 21, 2021. The defendant's 

counsel conceded the positive drug test and no-show

appointments.1

1 The defendant's counsel expressly stated that, "with regard to 

the screens, I concede the positive cocaine and concede the noshows as well."
3

The Commonwealth also introduced an incident report (the 

report) written by the police officer who responded to the scene 

of the defendant's accident. According to the report, at 

approximately 2:40 A.M. the officer arrived at the scene of a 

single vehicle crash and found the defendant "sitting in the 

median with leg and facial injuries"; the officer noted that

"only the driver's side and front airbags had deployed." The 

defendant maintained that he was not the driver of the vehicle 

but refused to provide the driver's name. The police searched 

the area and found no one else.

The judge ruled that the Commonwealth had shown by a 

preponderance of the evidence that the defendant violated the 

terms of his probation. The judge confirmed in his finding of a 

probation violation that, other than as specifically excluded, 

the "exhibits meet the substantial reliability test."

Discussion. "The Commonwealth must prove a violation of 

probation by a preponderance of the evidence." Commonwealth v. 

Bukin, 467 Mass. 516, 520 (2014). "A determination whether a 

violation of probation has occurred lies within the discretion 

of the hearing judge." Id. at 519-520. Although "standard 

evidentiary rules do not apply to probation revocation 

hearings," a finding of a probation violation must be based on 

reliable evidence. Durling, 407 Mass. at 117. "A judge may 

rely on hearsay evidence at a probation violation hearing where 
4

the evidence has substantial indicia of reliability." 

Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019). We 

review for abuse of discretion. See Commonwealth v. Jarrett, 

491 Mass. 437, 445 (2023), citing L.L. v. Commonwealth, 470 

Mass. 169, 185 n.27 (2014).

1. Reliability of evidence. In assessing whether the 

hearsay evidence is reliable, a hearing judge may consider:

"(1) whether the evidence is based on personal knowledge or 

direct observation; (2) whether the evidence, if based on 

direct observation, was recorded close in time to the 

events in question; (3) the level of factual detail; (4) 

whether the statements are internally consistent; (5) 

whether the evidence is corroborated by information from 

other sources; (6) whether the declarant was disinterested 

when the statements were made; and (7) whether the 

statements were made under circumstances that support their 

veracity."

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). "There is 

no requirement that hearsay satisfy all the above criteria to be 

trustworthy and reliable." Commonwealth v. Patton, 458 Mass. 

119, 133 (2010).

Because the defendant conceded the positive drug test and 

no-show appointments for testing, we review to determine whether 

the admission of such evidence was error, and if so, whether it 

caused a substantial risk of miscarriage of justice. See 

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). There was no 

error. The judge's finding that drug test results and no-show

appointments for testing were reliable was reasonably based on
5

(1) the high level of factual detail in the drug test results, 

(2) the documents having been recorded close in time to the date 

of the drug tests, and (3) corroboration by the probation 

officer's personal experiences with and direct observations of 

the defendant. See Commonwealth v. Eldred, 480 Mass. 90, 92-93

(2018) (judge reasonably determined probation officer's 

testimony about positive drug test, as well as drug test results 

themselves, constituted sufficiently reliable evidence). These 

same factors support the judge's conclusion that the majority of 

the police report, which was factually detailed, recorded close 

in time to the crash, and based on the officer's observations,

was reliable.

2. Sufficiency of evidence. On appeal, we assess "whether 

the record discloses sufficient reliable evidence to warrant the 

findings by the judge that [the probationer] had violated the 

specified conditions of his probation." Commonwealth v. Morse, 

50 Mass. App. Ct. 582, 594 (2000). "In a probation revocation 

hearing, the issue to be determined is not guilt beyond a 

reasonable doubt but, rather, whether the probationer more 

likely than not violated the conditions of his probation." 

Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013).

(a). Drug-testing violations. Here, the evidence was 

sufficient to prove, by a preponderance of the evidence, that 

the defendant violated his conditions of probation. The judge 
6

reasonably relied on the drug test results, no-show

appointments, and probation officer's testimony in coming to 

this conclusion. The probation officer's testimony corroborated 

evidence of the defendant's positive drug test result and noshow appointments. See Jarrett, 491 Mass. at 445 (officer's 

testimony as to defendant's drug-related offense sufficient to 

find defendant in violation of drug-free terms of probation). A 

finding that the no-shows were willful was reasonably supported 

by the officer's testimony that she "always" contacted the 

defendant after each no-show and the Averhealth document showing 

the dates on which the defendant failed to appear for scheduled 

testing. See Rass Corp. v. Travelers Cos., 90 Mass. App. Ct. 

643, 657 (2016).

(b). Motor vehicle offenses. Operating a motor vehicle 

with a suspended license requires proof of three elements: (1) 

operating a motor vehicle, (2) with a suspended license, (3) 

with notice of the suspension. Commonwealth v. Royal, 89 Mass. 

App. Ct. 168, 170 (2016). "Proof of operation of a motor 

vehicle may 'rest entirely on circumstantial evidence.'" 

Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006), 

quoting Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438 

(2002). Here, the first element was met. The defendant, 

injured on his face and legs, was alone at the scene of a single 

vehicle accident in which only the driver's side airbags had 
7

deployed, and there was no sign of another person. It did not 

take a "leap of conjecture" to infer that the defendant was 

operating the vehicle at the time of the crash. Commonwealth v.

Beltrandi, 89 Mass. App. Ct. 196, 202 (2016). See Commonwealth

v. Hilton, 398 Mass. 63, 67 (1986) ("A web of convincing proof 

can be made up of inferences that are probable, not necessary"

[quotation omitted]); Cromwell, supra at 440. As to the second 

element, we see no reason to disturb the judge's conclusion that 

the police officer's report was substantially reliable. In the 

report, the officer noted that the defendant's license was 

suspended. Finally, the judge reasonably could have inferred 

from the defendant's statements to the trooper that he knew his 

license was suspended and, to avoid arrest, claimed that his 

friend was driving. See Commonwealth v. Vick, 454 Mass. 418, 

424 (2009), quoting Commonwealth v. Robles, 423 Mass. 62, 71 

(1996) ("False statements to police may be considered as 

consciousness of guilt if there is other evidence tending to 

prove the falsity of the statements").

A finding of negligent operation requires proof that the 

defendant (1) operated a motor vehicle (2) upon a public way (3) 

negligently so that the lives or safety of the public might be 

endangered. Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 

(2017). Negligent operation "only requires proof that the 

defendant's conduct might have endangered the safety of the 
8

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

Mass. App. Ct. 32, 35 (2007), but requires more than the "mere 

occurrence of an accident." Osborne v. Hemingway Transp., Inc., 

28 Mass. App. Ct. 944, 945 (1990). Although the evidence 

permitted a finding of operation, and the crash occurred on a 

public way, we are not persuaded that the third element was met. 

The evidence established only that the defendant, driving 

without a license, crashed his car. While both the operating 

while suspended and the accident are relevant to the assessment 

of negligent operation, see Commonwealth v. Campbell, 394 Mass. 

77, 83 n.5 (1985); Commonwealth v. Cohen, 27 Mass. App. Ct. 

1210, 1211 (1989), we find no precedent establishing that they 

are sufficient to show it. See Commonwealth v. Zagwyn, 482 

Mass. 1020, 1022 (2019); Aucella v. Commonwealth, 406 Mass. 415, 

418-419 (1990).

Because the record does not reveal that the trial judge 

would have imposed the same sentence had he found only two of 

the three violations, we are constrained to remand for 

resentencing consistent with our decision.

3. Due process claim. We review the defendant's due 

process challenge "to determine whether the error, if any, was 

'harmless beyond a reasonable doubt.'" Commonwealth v. Kelsey, 

464 Mass. 315, 319 (2013), quoting Commonwealth v. Bacigalupo, 

455 Mass. 485, 495 (2009). "Due process requires a judge to 
9

issue a written statement supporting a probation revocation to 

help insure accurate factfinding with respect to any alleged 

violation and provide[] an adequate basis for review to 

determine if the decision rests on permissible grounds supported 

by the evidence" (quotation omitted). Ogarro, 95 Mass. App. Ct. 

at 667. This "is not an inflexible or invariably mandatory 

requirement . . . The judge's statement is sufficient if it 

provides the probationer with reasons for the decision, adequate 

for the probationer to obtain a meaningful review." Id.

(quotation omitted).

Although it would have been preferable for the judge to 

mark the relevant boxes on the probation violation finding and

disposition form, we are satisfied that the defendant's due 

process rights were not violated. The judge thoughtfully 

assessed the proffered hearsay evidence in the report and in 

screenshots offered by the Commonwealth, reasonably excluding 

some of it, and noted on the form that the remaining exhibits

"meet the substantial reliability test." See Fay v. 

Commonwealth, 379 Mass. 498, 504-505 (1980) (judge's transcribed 

review of evidence satisfied due process requirements). 

Corroborated by the hearing record, the judge's written finding

was sufficient to indicate the specific reasons he found the 

hearsay evidence sufficiently reliable. See Commonwealth v. 

Bain, 93 Mass. App. Ct. 724, 726, 727 (2018) (judge's findings 
10

complied with due process where judge left line blank meant "to 

be filled in by the judge with the specific evidence relied on 

to support the violation finding"). See also Morse, 50 Mass. 

App. Ct. at 592 (judge adequately provided reasoning for 

probation revocation by making written finding that plainly 

derived from reliable and sufficient evidence). Taken together, 

these steps satisfied due process requirements and provided for 

an adequate basis for the defendant to receive meaningful 

review.

On the order revoking probation and imposing sentence, so 

much of the order that finds violations based on the drug 

testing and operating with a suspended license is affirmed, and 

the remaining finding of violation is reversed. The sentence is 

vacated and the case is remanded to the District Court for 

resentencing consistent with this memorandum and order.

So ordered.

By the Court (Blake, 

Hershfang & D’Angelo, JJ.2),

Clerk

Entered: June 9, 2023.

2 The panelists are listed in order of seniority.