Opinion
No. 11–P–1661.
2013-01-25
COMMONWEALTH v. Julio C. SANTIAGO.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with possession of a burglarious instrument, G.L. c. 266, § 49, and attempting to commit a crime, G.L. c. 274, § 6. On appeal, the defendant argues that the evidence was insufficient to convict on either offense. We affirm.
Possession of a burglarious instrument. The defendant first argues that the Commonwealth failed to prove that he intended to use a screwdriver to break and enter a vehicle.
General Laws c. 266, § 49, as appearing in St.1966, c. 269, § 1, makes it an offense to possess a “machine, tool or implement adapted and designed for ... forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose.” With the evidence viewed in a light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1978), the trial judge could have found the following facts.
An eye witness, Louis Morales's, saw the defendant try to open the doors of a red Jeep Cherokee parked outside Morales's home at approximately 2:00 A.M. Morales knew that the car belonged to his neighbor. Finding the doors locked, the defendant retrieved something from a nearby shed that appeared, at a distance of thirty to thirty-five yards, to be a “long and thin” wire. When the police arrived minutes later, the defendant fled. A screwdriver was found in the defendant's pocket when he was apprehended moments later.
The defendant did not preserve his claims below. Ordinarily, where a claim is not preserved, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967). “However, a verdict based upon legally insufficient evidence is inherently serious enough to create a substantial risk of a miscarriage of justice, so we review such claims without regard to the defendant's procedural shortcomings.” Commonwealth v. Williams, 63 Mass.App.Ct. 615, 616–617 (2005), and cases cited.
The defendant asserts that the Commonwealth failed to prove its case because Morales did not testify that he saw the defendant use the screwdriver to attempt to open the vehicle. We reject the defendant's argument. General Laws c. 266, § 49, does not require the Commonwealth to present evidence that the defendant employed a particular tool to break and enter a vehicle. See Commonwealth v. Jones, 355 Mass. 170, 176–177 (1969) (the intent to use tools to break and enter was reasonably inferable from the circumstances and “no evidence that the tools were in fact so used” was necessary); Commonwealth v. Dreyer, 18 Mass.App.Ct. 562, 565 (1984) (substantial evidence supported the conviction where defendant was observed hiding near an automobile at 3:00 A.M., fled when the police arrived, and was in possession of a screwdriver at the time of his arrest); Commonwealth v. Aleo, 18 Mass.App.Ct. 916, 917 (1984) (“the gist of the offense lies in the possession of the tools, the purpose for which they are possessed, and their suitability for that purpose”). Morales's testimony allowed the trial judge to find that the defendant intended to use the screwdriver to enter the vehicle. Given the brief period of time that elapsed before the police arrived, it is very likely that the defendant had not yet exhausted the cache of tools with which he intended to open the vehicle.
The defendant attempts to distinguish Dreyer on the basis that the police also found a coat hanger hanging out a window of the vehicle in that case. That fact, while not essential to the conviction in that case, see Dreyer, supra at 565, is analogous to the testimony in this case that the defendant retrieved a wire from a nearby shed.
The defendant also argues there was insufficient evidence to prove that he intended to steal from the vehicle. Without a demonstrable intent to steal, the defendant asserts that the screwdriver cannot properly be linked to the crime of burglary. This argument is similarly unavailing. See Dreyer, supra at 565 (“We perceive no basis in the cases for requiring evidence that the automobile was used to store valuables or that [the defendant's] purpose was to enter the automobile to remove valuables”).
Intent. The defendant claims that there was insufficient evidence presented at trial to support his conviction because the Commonwealth failed to identify the particular crime he allegedly intended to commit when he attempted to enter the vehicle.
He asserts that the Commonwealth charged him with the intent to commit a misdemeanor, but did not identify the particular misdemeanor. The Commonwealth was not required to do so. See Rogan v. Commonwealth, 415 Mass. 376, 379 (1993); Commonwealth v. Willard, 53 Mass.App.Ct. 650, 656–657 (2002) (“[A] burglary indictment need not even specify the intended felony by name, as the identity of the felony is not an element of the crime and the jury can find an intent to commit an unspecified felony”), and cases cited. The reasoning in Willard applies with equal force where the crime charged specifies an intent to commit a misdemeanor. See Commonwealth v. Scott, 71 Mass.App.Ct. 596, 603 n. 8 (2008).
The complaint originally tracked the language of G.L. c. 266, § 16A, and specified the crime as “B & E into boat/vehicle for misdemeanor.” This was amended to read, “attempt to commit a crime .” On appeal, the parties have framed the issue as whether the Commonwealth was required to identify the particular misdemeanor intended by the defendant when he allegedly attempted to break into the vehicle.
Judgments affirmed.