Opinion
15-P-1241
03-06-2017
COMMONWEALTH v. Gordon B. FULLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction by a jury of larceny over $250 pursuant to G. L. c. 266, § 30(1). He argues that (1) the judge should have given a jury instruction regarding the affirmative defense of honest yet mistaken belief that the property was abandoned, and (2) his motion for a required finding of not guilty should have been granted. We reverse the judgment, set aside the verdict, and remand.
Background . We summarize the evidence that the jury could have found to support the charge of larceny. We then summarize the evidence introduced by the defendant, in the light most favorable to him, that the jury could have found to conclude that the defendant honestly believed that the property was abandoned.
a. Commonwealth's evidence . On March 19, 2013, Richard Petricca found the defendant and two other individuals with a pickup truck and a blowtorch on land belonging to Petricca's father. The land was partly fenced and fully posted with "no trespassing" signs, and access to the relevant area, which included a gravel pit, was through a gate that was kept closed and had a chain and padlock, though it was not always locked. On the day in question Petricca found the gate open and a metal "cutting screener" on the property had been cut into pieces with the blowtorch and some pieces had been taken from the property. When Petricca approached the men, the defendant initially fled. As Petricca was speaking to the men, the defendant asked him not to call the police, and instead suggested they could work something out. Petricca called the police.
A large piece of equipment used to separate rocks and other material from topsoil.
After Pittsfield police Officer Brett Henault arrived, the defendant stated that he and the other men had been cutting metal from the screener for three days and bringing it to Perlman's scrap yard for money. The defendant offered the officer a receipt from Perlman's. The defendant was arrested and charged with larceny over $250.
b. Evidence viewed favorably to defendant . The defendant testified that he had always thought the property was a garbage dump. He had passed by the property on the bus repeatedly during the early 1990's and had then seen that the property was consistently strewn with boulders, broken concrete, and garbage. He testified that he had never seen the gate closed or seen no-trespassing signs. The defendant had seen the screener in the same location on the property many times as he had passed by, and in 2013 the screener appeared to be scrapped. It was sunken into the ground, rusted, and broken with trees growing through it. He told Officer Henault that he "thought it was abandoned."
Discussion . 1. Instruction on abandonment . The defendant argues that the judge erred in denying his request for a jury instruction on his affirmative defense of abandonment—namely, that abandoned property cannot be stolen. We agree.
"An honest mistake of fact or law is a defense when it negates a required mental element of the crime." Commonwealth v. Liebenow , 470 Mass. 151, 160 (2014), quoting from LaFave & Scott, Criminal Law § 47, at 357 (1972). Specific intent to steal is negated by a finding that the defendant held the honest albeit mistaken belief that he was entitled to the property he took. Id . at 157. A defendant has met his burden of production "if any view of the evidence would support a factual finding" that the defendant believed the items he took had been abandoned. Commonwealth v. Vives , 447 Mass. 537, 541 (2006) (defendant entitled to instruction on belief that he was collecting a debt). See Commonwealth v. White , 5 Mass. App. Ct. 483, 488 (1977) (same); Commonwealth v. Anslono , 9 Mass. App. Ct. 867, 867-868 (1980) (defendant entitled to instruction on belief that he had title to, and the right to sell, motor vehicle). See also Morissette v. United States , 342 U.S. 246, 271 (1952) (holding that an honest, though mistaken, belief that property was abandoned is a defense to larceny). Here, the defendant's testimony sufficiently raised the defense of mistaken belief that the screener was abandoned and he was thus entitled to a jury instruction on his affirmative defense.
In Liebenow , the Supreme Judicial Court clarified that a defendant's mistaken belief need not be objectively reasonable. 470 Mass. at 158-161. While Liebenow was decided after the trial of the defendant in this appeal, whether or not it announced a new rule, the defendant here had proposed an abandonment instruction in any event and his appeal was pending when Liebenow was decided.
The Commonwealth also argues that the instruction proposed by the defendant was not correct and thus the judge had no obligation to give it to the jury. The core concept of the requested instruction was correct, and the failure to give any instruction was error.
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With proper instructions, the jury could have found that the defendant's belief that the property was abandoned negated the intent to steal, an element of the crime of larceny. Although defense counsel was permitted to argue in his closing statement that the defendant believed the property to be abandoned, in the circumstances of this case, this is not an adequate substitute for the gravity of a judge instructing a jury on the law that they must apply. We thus conclude that the lack of instruction was prejudicial to the defendant and requires reversal.
2. Sufficiency of the evidence . The defendant also argues that his motion for a required finding of not guilty should have been granted. Viewing the evidence in the light most favorable to the Commonwealth, we conclude that the evidence presented at trial was sufficient as a matter of law to warrant a finding of guilt beyond a reasonable doubt of each element of the crime. See Commonwealth v. Latimore , 378 Mass. 671, 677-678 (1979). Especially given the defendant's presence on the property while the screener was being cut apart, Petricca's testimony that the defendant fled when first confronted and then asked Petricca not to call the police, and the defendant's admissions to the officer, there was sufficient evidence to support a conviction.
Judgment reversed .
Verdict set aside .
Case remanded for further proceedings consistent with the memorandum and order of the Appeals Court .