Opinion
11-P-151
10-24-2011
COMMONWEALTH v. OCTAVIUS CAUDLE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was tried on an indictment for armed robbery, G. L. c. 265, § 17. At trial, the defendant's testimony was consistent with the victim's testimony insofar as he admitted meeting with her and obtaining money from her. As to the circumstances, the victim claimed that the money was taken from her pocket by the defendant as he held a knife to her body. The defendant testified that the victim voluntarily handed the money to him for the specific purpose of his obtaining drugs for her.
The defendant's request for an instruction on simple larceny as a lesser included offense of armed robbery was denied. He was convicted of larceny from the person of another, a charged lesser offense.
We conclude that the judge properly rejected the requested instruction. The duty to charge on a lesser included offense 'does not arise just because a lesser included offense is possible in theory.' Commonwealth v. Olivera, 48 Mass. App. Ct. 907, 909 (1999). An instruction on a lesser included offense is proper if, drawing all reasonable inferences in favor of the defendant, the evidence would warrant the jury in finding the defendant innocent of the greater crime and guilty of the lesser included offense. See Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 693 (1998); Olivera, 48 Mass. App. Ct. at 908. A charge on a lesser included offense is warranted if a rational jury, believing portions of the testimony of the victim and portions of the testimony of the defendant, could find the defendant guilty beyond a reasonable doubt of a lesser included offense. See Commonwealth v. Gilmore, 399 Mass. 741, 746- 747 (1987) (judge should instruct on assault and battery as lesser included offense of rape when rational 'jury could have believed portions of the testimony of both the victim and the defendant'). 'A trial judge is not required, however, to charge on an hypothesis which is not supported by evidence.' Commonwealth v. Johnson, 379 Mass. 177, 180 (1979), quoting from Commonwealth v. Caine, 366 Mass. 366, 374 (1974). In this case, the judge properly instructed the jury on larceny from the person of another as a lesser included offense, a charge that was supported by the evidence argued by the defendant; the judge properly refused to instruct the jury on simple larceny, a charge that was not supported by the evidence.
We rely upon the arguments and authorities on pages seven through fifteen of the Commonwealth's brief. The judgment is affirmed.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),