Opinion
14-P-58
12-22-2014
COMMONWEALTH v. ROBERT J. DUSSAULT.
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, Robert J. Dussault, appeals from his conviction for (1) breaking and entering a building in the daytime with the intent to commit a felony in violation of G. L. c. 266, § 18, and (2) two counts of larceny over $250 in violation of G. L. c. 266, § 30. The defendant argues on appeal that the trial judge erred in denying his motions for a required finding of not guilty on all three charges. We affirm the defendant's breaking and entering conviction, and reverse the larceny convictions.
The pertinent facts are as follows. The complainants' home was burglarized during a six-hour time span when none of the members of the household were present. Several electronic devices, along with over $100,000 in jewelry, were stolen from the home. Police determined that the point of entry for the burglary was the front door, though they also noted that the screen covering a window at the rear of the house had been cut at an undetermined time. The police removed a latent fingerprint from the outside pane of the window, which was only accessible through the cut screen. The latent fingerprint was later determined to be the defendant's. The complainants testified that prior to the date of the burglary, the window screen had not been cut, the defendant had not been to the home, and the defendant had no authority to be at the home.
1. Standard of review. In our review, after viewing the evidence and the reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, we consider whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Commonwealth v. Latney, 44 Mass. App. Ct. 423, 424 (1998). "[C]ircumstantial evidence is sufficient to establish guilt beyond a reasonable doubt," Commonwealth v. Miranda, 458 Mass. 100, 113 (2010), but "[p]roof that allows for no more than speculation requires that a defendant's motion for a required finding of not guilty be allowed." Commonwealth v. Oliver, 60 Mass. App. Ct. 770, 776 (2004).
2. Breaking and entering conviction. Regarding the charge of violation of G. L. c. 266, § 18, the Commonwealth had to prove beyond a reasonable doubt that (1) the defendant broke into a building, (2) the defendant entered that building, and (3) the defendant did so with intent to commit a felony therein. The facts of this case support the jury's conclusion that the defendant had committed each of the required elements for the breaking and entering conviction.
The statutory element of a breaking "has long been understood to include all actions violating the common security of a dwelling," Commonwealth v. Burke, 392 Mass. 688, 689 (1984) (quotation omitted), as well as when a defendant has "moved to a material degree something that barred the way." Commonwealth v. Tilley, 355 Mass. 507, 508 (1969). Similarly, an entry has been construed as "any intrusion into a protected enclosure by any part of a defendant's body." Burke, 392 Mass. at 690. Based on the placement of the fingerprint and testimony regarding the cut screen, the jury were permitted to infer that the defendant cut the screen and passed the threshold of the screen in order to touch the window, thereby satisfying the breaking and entering requirements.
As for the element of intent, the jury may infer that one who breaks and enters a building, whether at night or in the daytime, is doing so with the intent to steal. Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 361 (1999). Given that "larceny in a building is a felony regardless of the value of the items stolen," Commonwealth v. Graham, 62 Mass. App. Ct. 642, 647 (2004) (quotation omitted), the facts support the conclusion that the defendant had the requisite felonious intent.
3. Larceny convictions. "Larceny is the taking of personal property with intent to deprive the owner permanently of its use." Commonwealth v. Dellamano, 393 Mass. 132, 134 n.3 (1984), citing Commonwealth v. Johnson, 379 Mass. 177, 181 (1979). In order to prove the defendant guilty of larceny, the Commonwealth had to prove beyond a reasonable doubt that it was the defendant who took the property in question. While the evidence supports the conclusion that the defendant was at the premises, and did at some point commit a breaking and entering, there is no evidence that places the defendant within the home. The testimony at trial indicated that the point of entry for the larceny was not the rear window, where the defendant's fingerprint was found, but the front door. Additional fingerprint samples were discovered inside the home, but their analysis did not result in a match with the defendant. Moreover, the defendant was not found with the stolen goods, nor was any other evidence introduced that would link him to the larceny. Given "the general principle that the presence of a fingerprint at the scene of the crime is not by itself a sufficient basis for submitting a case to a jury," Commonwealth v. Fazzino, 27 Mass. App. Ct. 485, 487 (1989), we conclude that there was insufficient evidence to support the defendant's larceny convictions.
Conclusion. For the reasons stated above, we affirm the defendant's breaking and entering conviction, and reverse the larceny convictions.
As to count one (breaking and entering), the judgment is affirmed. As to counts two and three (larceny), the judgments are reversed, and the verdicts are set aside.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: December 22, 2014.