Opinion
13-P-1523
12-08-2014
COMMONWEALTH v. RICARDO HERNANDEZ.
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, Ricardo Hernandez, appeals from his conviction of the crime of receiving stolen property, arguing that the trial judge erroneously denied his motion for a required finding of not guilty. We affirm.
Background. We recite the evidence from trial in the light most favorable to the Commonwealth. Commonwealth v. Darnell D., 445 Mass. 670, 671 (2005). Around 2:00 A.M. on April 25, 2012, the defendant was riding a bicycle down Dudley Street in the Dorchester section of Boston while pulling another bicycle alongside him. Officers stopped the defendant and asked what he was doing. The defendant gave two different explanations for having the second bike.
The defendant consented to a search of the duffel bag he was carrying on his back. Inside the bag, the officers found a package containing the nonprescription acne medication Proactiv, with an affixed label addressed to Thomas Shepard at 17 Queensberry Street. The defendant told the officers that he had found the bike and the Proactiv box near Kenmore Square. He offered to return both and to receive a summons instead of being arrested. The officers arrested the defendant based upon his conflicting stories and possession of a package that did not belong to him.
The defendant does not contest the propriety of the stop or the search.
The box had a shipping label that read, in part, "sat08485 Apr 23 01:27:37 2012."
At trial, Shepard explained that he had forgotten to change the address on his standing Proactiv shipment when he moved in September of 2011. Shepard did not realize he was missing the package until he was contacted by the district attorney's office.
The defendant was convicted following a bench trial. His motion for a required finding of not guilty at the close of the Commonwealth's case was denied.
Discussion. In reviewing the denial of a motion for a required finding of not guilty, we must determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The essential elements of receiving stolen property are: (1) that the property was stolen; (2) that the defendant knew it had been stolen; and (3) that the defendant knowingly had the stolen property in his possession. Commonwealth v. Namey, 67 Mass. App. Ct. 94, 97 (2006); G. L. c. 266, § 60.
Based on the evidence at trial, the judge rationally could have found that the Proactiv was stolen rather than abandoned. While neither our statutes nor our case law defines the distinction between "stolen" and "abandoned" property, Black's Law Dictionary defines "stolen property" as that which has been "acquired by larceny, robbery, or theft." Black's Law Dictionary 1555 (9th ed. 2009). By contrast, "abandoned property" is property "the owner voluntarily surrenders, relinquishes, or disclaims." Id. at 1336. Shepard testified that he was not aware that he was missing the Proactiv until he was contacted by the district attorney's office, and, therefore, he could not voluntarily have surrendered, relinquished, or disclaimed property that he did not know existed. Shepard testified that no one else was authorized to receive his Proactiv packages, and there was evidence that the Proactiv was left in an area to which the general public did not have access. Such evidence supports an inference that the Proactiv was taken without the owner's consent.
The Commonwealth's failure to explain precisely how the property was obtained from inside the locked vestibule of 17 Queensbury Street does not preclude a finding that the property was stolen. See Commonwealth v. Rossi, 15 Mass. App. Ct. 950, 952 (1983) (noting that the Commonwealth need not establish "a chain of possession" between thief and defendant). Unlawful possession may be inferred where the "defendant's possession of property exhibits 'peculiarities' and 'occurs in a context fraught with suspicion.'" Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 668 (2002), quoting from Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 596, 602 (1988). Here, there was evidence that the defendant was out at 2:00 A.M. with two bicycles, that he offered to return the package and the bike instead of being arrested, and that the Proactiv had been shipped and delivered two days earlier. The judge could have rationally concluded from such evidence that the property in the defendant's possession was stolen.
The Commonwealth also had to prove that the defendant "knew or believed [the] property was stolen property at the time it came into his possession, or at any time while it was in his possession he ascertained that it was stolen property and he undertook to deprive the owner of his rightful use of it." Kirkpatrick, supra at 599, quoting from Commonwealth v. Kronick, 196 Mass. 286, 288 (1907). The evidence showed that the Proactiv had been delivered to 17 Queensberry Street two days earlier. "The inference permitted by possession of recently stolen property can be a strong one," which "may act as a substitute for direct proof of guilty knowledge" if supported by evidence of "the character of the property, its size and appearance, its marketability, and the circumstances of its recovery." Id. at 600-601. The judge was not required to credit the defendant's testimony that he found the Proactiv, Commonwealth v. Myers, 82 Mass. App. Ct. 172, 178 (2012), and could infer based upon the Proactiv's label and the circumstances surrounding the defendant's arrest that the defendant knew it was stolen. "[A] rational inference of guilty knowledge may be drawn from the facts and circumstances," Commonwealth v. Burns, 388 Mass. 178, 183 (1983), and the absence of direct evidence regarding the defendant's knowledge did not mandate allowance of the defendant's motion for a required finding. Commonwealth v. Sandler, 368 Mass. 729, 741 (1975).
Judgment affirmed.
By the Court (Kafker, Brown & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 8, 2014.