Larceny and Belief of Abandonment in Massachusetts

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.

The appellate court explained that the defendant had testified that he believed the property was actually a garbage dump since it was always strewn with broken concrete and garbage. The defendant hadn’t seen the no trespassing signs or the gate closed and had seen the screener in the same place whenever he passed by, so he believed it had been scrapped since it was sunk into the ground with trees growing through it.

On appeal, the defendant argued that he believed the property was abandoned, and that abandoned property couldn’t be stolen. The appellate court agreed with him. It explained that an honest factual mistake is a defense if it removed a required mental element of the crime. Specific intent to steal is removed if there is a finding that the defendant had the honest, if mistaken, view that he was entitled to the property he had stolen. The defendant would meet his burden of production if any look at the evidence would support a finding that he believed that what he took was abandoned.

In this case, the defendant’s testimony had sufficiently shown he mistakenly believed the screener was abandoned and therefore he was entitled to a jury instruction on the defense of abandonment. The court explained that the jury could’ve found that his belief that the screener was abandoned removed his intent to steal it.

Intent was an element of the crime of larceny. The defense attorney was allowed to argue abandonment in the closing statement, but that wasn’t equal to a judge’s instruction on abandonment. The appellate court found the lack of jury instruction prejudiced the defendant, and required reversal. The defendant also argued that his motion for a required finding of not guilty should’ve been granted, but the appellate court disagreed, finding there was enough evidence to warrant a guilty verdict.

If you are charged with a theft crime in Massachusetts, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015

Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014

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