Opinion
18-P-479
04-17-2019
COMMONWEALTH v. GARDY EXANTUS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 15, 2016, the defendant agreed to purchase a scooter from an acquaintance for $800 and then took the scooter for a test drive. The defendant never returned with the scooter, nor did he ever pay the owner for it. A Boston Municipal Court jury convicted the defendant of larceny over $250. We affirm.
The jury acquitted the defendant of intimidation of a witness, and threats to commit a crime.
The defendant claims on appeal that there was insufficient evidence for a jury to have found him guilty of larceny over $250. We recite the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). In August of 2016, the defendant met with an acquaintance to discuss potentially purchasing a scooter from him for $800. After seeing the scooter, the defendant told the owner: "I'm going to talk to my girl to get the money to give it to you." The owner of the scooter then let the defendant take the scooter for a test drive, telling the defendant that he could "drive over there" and then "come back." Despite this, the defendant drove away on the scooter and never came back.
After waiting for more than thirty minutes for the defendant to return the scooter, and repeatedly calling the defendant's telephone to no avail, the owner of the scooter decided to go directly to the area he knew the defendant frequented. When he arrived, he did not see the defendant but he did see his scooter. However, the individuals there would not let him take back his scooter, and told him: "That's our scooter. It's not for you anymore." The owner subsequently reported the theft of the scooter to the police.
The individuals also tried to fight the owner of the scooter and break his car window.
Approximately two days later, the owner saw the defendant riding the scooter and called the police. That same day, a police officer from the auto theft unit was in the area investigating the scooter heist and observed an individual other than the defendant riding the stolen scooter. The officer lost track of the scooter but eventually received a radio call that the owner of the scooter had seen it at a particular location. The officer went to that location, where he saw the defendant and the individual the officer previously had observed riding the scooter exiting a building. The officer placed the individual he had observed on the scooter under arrest on unrelated charges, and found the key to the scooter in his pocket. The scooter was located just a few streets away. The defendant was not arrested that day, but eventually was charged with larceny of the scooter.
The defendant claims on appeal that this trial evidence was insufficient to show he had the requisite specific intent to permanently deprive the owner of his scooter. See Commonwealth v. Mills, 436 Mass. 387, 394 (2002) (defining elements of larceny under G. L. c. 266, § 30). As the defendant accurately points out, "deception as to a person's present intention to perform a promise . . . cannot be inferred from mere nonperformance of the promise." Commonwealth v. True, 16 Mass. App. Ct. 709, 711 (1983). With this principle in mind, the defendant argues that an intent to deprive the owner of his scooter cannot be inferred from the defendant's failure to "immediately return[] with either the purchase money or the scooter."
The flaw in the defendant's argument is that the jury heard far more evidence than the defendant's failure to return promptly to the scene of the putative transaction. Based on the evidence, rational jurors could have concluded that despite having received permission to take the scooter only for a short test drive, the defendant failed to return at all, knowingly ignored the owner's repeated phone calls, allowed at least one other person access to the scooter, and apparently told others that the scooter no longer belonged to the owner. Taken together, this was more than sufficient to satisfy rational jurors beyond a reasonable doubt that the defendant intended permanently to deprive the owner of his scooter. See Latimore, 378 Mass. at 677-678. See also Mills, 436 Mass. at 394.
Judgment affirmed.
By the Court (Milkey, Blake & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 17, 2019.