Theft Crimes

Larceny and Belief of Abandonment in Massachusetts

Published on: March 15, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the defendant appealed from a conviction for larceny of more than $250 under MGL c. 266 section 30(1). The defendant argued that the jury should have been given an instruction related to his defense of honest yet mistaken belief that the property was abandoned, and that the lower court should have granted his motion for a required not guilty finding.

The case arose when the defendant and two other people with a pickup torch and a blowtorch were on another man’s land. The land was fenced off, and no trespassing signs were posted. Access to the area where the defendant and his friends were was through a closed gate that wasn’t always locked, but had a chain. On the day at issue, the landowner’s son found the gate open. A metal cutting screener had been cut with the blowtorch and piece of it had been taken from the land. When he approached the defendant and his friends, the defendant ran. However, while he was talking to the friends, the defendant asked him not to call the cops and asked if they could work something out.

The landowner’s son called the cops. When a police officer arrived, the defendant told him that he and the other men had cut metal from the screener for days and brought it to the scrap yard for cash. The defendant gave the police officer a receipt, and then he was arrested and charged with larceny.

Larceny by False Promises in Massachusetts

Published on: February 14, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate decision, the defendant was convicted of violating MGL c. 266 section 30(1). This section criminalizes larceny by false pretenses involving over $250. To secure a conviction, the Commonwealth is supposed to prove beyond a reasonable doubt that the defendant made a false statement of fact that he knew or believed was false at the time he said it, that he intended to induce someone else to rely on it, and that someone did rely on it and as a result gave up his or her property. The defendant appealed, arguing that the evidence in his case was not enough to prove that he made a false statement of fact intending to induce reliance.

The defendant was a contractor who had agreed to repair a home in 2014, and in exchange for the homeowners’ agreement to pay 50% of the repair costs, he claimed he’d start the repair work the next day. Although he deposited the homeowners’ payment right away, he didn’t come back to the home for a few weeks. The work he did was poor and not completed.

The homeowners got in touch with him, but he kept putting them off. They saw him working on other homes in the neighborhood during that period. He tried to perform some additional work for an extra $550, claiming that he needed to pay laborers who were in his truck in order to start working. The homeowners found out that he had outstanding warrants in another state and asked for a partial refund. They didn’t talk further, and the work didn’t get done.

Break-in at a Massachusetts Jewelry Store

Published on: January 5, 2017 | by Patrick J. Murphy, Esq.

In Commonwealth v. Burns, a Massachusetts appellate court considered a conviction for an after-hours break-in and larceny of items valued over $250. The case arose when somebody broke and entered a jewelry store after hours and stole jewelry.

At trial, there was testimony that the defendant admitted he stole from the jewelry store, and items from the burglary were found at his home, on him, and in the possession of his family members. There was also testimony that there were tire tracks at the scene that were similar to those from a tire removed from the defendant’s car.

The defendant appealed, arguing that the affidavit attached to the search warrant to search his home didn’t provide the police with probable cause to believe the stolen jewelry would be found at his house seven months after a confidential informant saw it there. The facts to establish probable cause in a warrant must show that there is a belief that evidence of a crime will be located at the place to be searched when the warrant is executed.

Resisting Arrest in Massachusetts

Published on: October 5, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Hill, the defendant was convicted of resisting arrest in violation of G. L. c. 268, § 32B, larceny in violation of G. L. c. 266, § 30(1), and assault and battery on a police officer. The case arose when a Sears & Roebuck Company loss prevention officer was monitoring the sales floor of the department store and spotted the defendant leaving the store with certain clothing items that were still tagged, not in bags, and without a receipt.

The jury could have found the following facts. William Punch, a loss prevention officer employed by Sears & Roebuck Company in Dedham, was watching the sales floor of the department store when he noticed the defendant leaving with multiple un-bagged clothing items that still had tags. He called the loss prevention office, which told him none of these things had been paid for. He followed the defendant as he left the store and called the police from his cell phone as he continued to follow the defendant.

The police responded. An officer saw the defendant run down the street without the clothes. The defendant fled into the back yard of a nearby residence. A little bit later, the police caught the defendant where he had hidden behind a tractor trailer at the mall.

Probable Cause to Believe a Joint Venture Crime Has Been Committed

Published on: August 21, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Sanchez, the Commonwealth of Massachusetts appealed from orders that granted motions to suppress evidence that was seized during the search of codefendants. There were four companion cases.

The issue in the case was whether the police had enough of a basis to believe that the codefendants were joint venturers with Jose Rotger, a man who’d broken into a car and stolen objects from it while the codefendants stood nearby. On the evening of the theft, the codefendants and Rotger were walking down the street. Rotger looked into a parked car. The codefendants didn’t look into the car but stood nearby looking around. The three men kept walking, but Rotger looked into another car, while again the codefendants stood nearby.

At this car, the defendant opened the passenger door, reached into the car, and then closed the door, leaving it unlocked. The three continued down the street. Officers who were watching them thought they were handing something back and forth. They ran the license plate of the car and found it was registered to a woman.

Uttering a False Check in Massachusetts

Published on: July 21, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Robinson, the defendant was convicted of two counts of uttering a false check. The defendant came into a bank in Cambridge in 2011 and presented a check at a teller window. The $8,539.29 check made out to Bonnie Green was to be deposited into a savings account held by Bonnie Green. It was drawn on another bank account held by the Clark S. Binkley Company.

A few days later, the defendant withdrew money from Bonnie Green’s savings account. On the same day, the bank from which the check had been drawn returned the check and marked it as an altered fictitious check. An investigator for bank fraud found that the other bank hadn’t returned the check, based on insufficient funds. He obtained surveillance footage associated with the deposit.

A few days later, the defendant came to another bank branch and presented a check to be deposited into Megan Neilson’s bank account for over $8,000. It was drawn on a company account at another bank. The check was returned to the bank unpaid. A fraud investigation was started, and surveillance footage was reviewed.

Trespassing and Larceny in Massachusetts

Published on: May 3, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Bermudez, a Massachusetts defendant appealed from his convictions of trespass under M.G. L. c. 266, § 120 and larceny of property over $250 under M.G. L. c. 266, § 30(1). Both convictions arose after the defendant took an unattended laptop at the Boston University library.

On appeal, the defendant argued that there was a required finding of not guilty on both trespass and larceny. The appellate court explained that the critical inquiry was whether any rational trier of fact could have found beyond a reasonable doubt that the fundamental elements of the crime were met.

With regard to trespass, the court explained that to convict a defendant of trespass, the Commonwealth needed to prove he entered or stayed on BU property after being directly or indirectly forbidden to do so by someone with lawful control of the premises. At trial, a police officer testified that he did notify the defendant he wasn’t allowed to be on the BU campus. The court found this was sufficient for a jury to find direct notice to the defendant.

Sentencing for Receipt of Stolen Goods in Massachusetts

Published on: May 3, 2016 | by Patrick J. Murphy, Esq.

In the recent Massachusetts case of Commonwealth v. Lemery, the defendant appealed from a conviction of receiving stolen goods worth over $250. She argued on appeal that there was insufficient evidence to support her conviction, that the judge should not have admitted irrelevant evidence, and that impermissible factors went into her sentence.

The appellate court explained that in order to be guilty of the receipt of stolen property, a defendant has to buy or receive property that has been embezzled or stolen and know of its stolen status. This crime can be established through the use of circumstantial, rather than direct, evidence.

The appellate court reasoned that the jury could infer that the defendant knew the jewelry was stolen because she told conflicting stories about how she got it, and she had the items in her hands 24 hours after the report they were stolen. It noted that if a defendant possesses property that’s been stolen recently, possessing it is enough of a basis for the jury to infer she knows it was stolen. The court also reasoned that the jury could have found that the items were worth at least $250 because she sold them for $2,400. The victims had identified several pieces, including an engagement ring that had been appraised at between $7,000 and $8,000.

Defense of Mistake to Massachusetts Theft Crime Charges

Published on: February 18, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Tremblay, the defendant was accused and convicted of breaking and entering while intending to commit misdemeanor larceny and a fifth offense of operating a motor vehicle while under the influence. He appealed on the basis that the trial judge made a mistake in limiting his cross-examination of a witness about an issue that was key to his defense.

At trial, the defendant argued he’d made a factual mistake about whether he was permitted to go onto the property of his dead uncle’s neighbor, break a lock, and take a model airplane. He tried to present evidence to this effect. However, the trial judge wouldn’t allow the defendant to question the neighbor about the defendant’s father’s challenge to the uncle’s will, which gave the neighbor the contents of the shed, including the model airplane. The defense attorney claimed that if the neighbor admitted that the ownership of the model airplane was disputed by the defendant’s family, it would have given the defendant more credibility on the question of whether he’d made an honest mistake of fact about his right to go onto the property and take the airplane model.

The appellate court explained that the element of intent to steal, which is required to convict someone of larceny, is negated if the defendant can show he had an honest, even if mistaken, belief he was allowed to take the property at issue. The court explained that testimony about the will dispute was relevant, and the judge should have allowed some cross-examination of the neighbor on whether there was a will dispute.

Probable Cause When Investigating Theft Crimes in Massachusetts

Published on: December 7, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Fasanelli, a Massachusetts defendant appealed after convictions for breaking and entering and larceny. The case arose in 2012 when a police officer sitting in an unmarked car was monitoring a residential area of Malden for suspicious activities and break-ins. He saw two men approaching from behind the car and witnessed them walk past a particular house before turning back and entering the porch. A minute later, they left the porch and returned the way they came.

The officer drove around, trying to find them, and contacted other officers to watch out for the men. He came back to the home where the men had entered the porch to talk to the homeowner. She later testified that she was preparing for the day when someone rang the doorbell. The doorknob jiggled. She opened the door and did not recognize the two men standing there. They asked for someone. and she didn’t recognize the name. They left.

A second officer identified the two men who fit the first officer’s description. One held a red gym bag. While the second officer watched, a marked police car approached the men, who reacted by going behind a house to avoid being seen.