Opinion
13-P-1983
08-12-2015
COMMONWEALTH v. GEORGE N. MAROSKOS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, a District Court judge convicted the defendant, George N. Maroskos, of wilfully impeding a criminal investigation, G. L. c. 268, § 13B. The defendant, a pawn shop owner, concealed from police the location of items that he purchased from the same individual on five separate occasions between December 29, 2011, and January 20, 2012. The defendant was ordered to pay restitution in the amount of $10,000. In addition, the defendant was sentenced to one year of probation, to terminate upon payment of the restitution.
The items taken from the victim's home included "antique silver," "complete place settings of sterling silver," "six or seven, at least, expensive watches, a lot of expensive rings," and some coins. Not all of the items taken were sold at the defendant's shop.
Both the defendant and the Commonwealth represent that the restitution order held the defendant jointly and severally liable with the person who had stolen the goods. The defendant represents that he has paid the restitution ordered.
On appeal, the defendant raises two claims of error. He makes a sufficiency of the evidence argument, and also challenges the restitution order -- arguing both that it was not causally connected to his actions and, further, that it exceeded the proven value of the property. We affirm the judgment, vacate the order of restitution, and remand for further proceedings.
Discussion. 1. Sufficiency of the evidence. In reviewing the sufficiency of the evidence on appeal, "we consider '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. Ramos, 470 Mass. 740, 750 (2015), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant challenges the sufficiency of the evidence on various grounds. We address each in turn.
a. Intent. The defendant asserts the evidence was insufficient to establish that he acted with an intent to "impede, obstruct, delay, . . . or otherwise interfere thereby with a criminal investigation." Commonwealth v. Morse, 468 Mass. 360, 370 (2014), citing G. L. c. 268, § 13B(1)(c). He bases this argument on an assertion that when he misinformed the police, he was simply attempting to avoid civil liability under a municipal ordinance that required him to keep the goods for thirty days and to properly report and document the sale. This contention lacks footing. The defendant understood that he was speaking with the police, who were conducting a criminal investigation, and he does not deny intentionally supplying them with misleading information. The Commonwealth need establish no more. See id. at 371.
b. Impediment to investigation. The defendant next argues that because the stolen property crime the police investigated did not require proof of the recovery of the stolen goods, his misstatements to the police, while possibly hampering the recovery of property, did not impede the criminal investigation. See G. L. c. 268, § 13B(1)(c)(iii)-(v). This argument ignores two vital aspects of the criminal investigation: (1) recovery of the stolen goods has significant evidentiary value (as the goods could be physical evidence identifiable by the victim), and (2) the recovery of the goods serves to make the victim whole. Moreover, that the defendant may have assisted the investigation in other respects does not negate his culpability in concealing from the police relevant information regarding his disposal of the goods.
c. Misleading. Finally, the defendant asserts that his statement was not actually misleading in that he could not be sure the goods were still at the refinery. We disagree. Under § 13B(1), to "mislead" is defined, among other things, as "knowingly making a false statement . . . [or] intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement." Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013). The defendant instructed his employee to take the goods to a refinery, and, while it is possible that even with the defendant's cooperation, the goods might have been melted down before police got to the refinery, his intentional concealment of the fact that he had ordered the goods sent to the refinery interfered with the ability of police to attempt retrieval of the goods before their destruction. See Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 47, 51 (2011) (victim falsely told police he was shot from far away, causing police to investigate in wrong location). Compare Figueroa, 464 Mass. at 373 (where defendant attempted to mislead parole officer with intent to obstruct investigation, "it does not matter that he failed to succeed in misleading her").
In addition, the defendant later called Detective Liacos and told him that he was "not going to tell [him where the property was] unless we can sit down."
2. Restitution. The defendant asserts the Commonwealth failed to establish that his actions caused the property loss. We disagree. To begin with, the Commonwealth's burden of proof on restitution awards is a preponderance of the evidence. Commonwealth v. McIntyre, 436 Mass. 829, 834 (2002). "[T]he scope of restitution is limited to 'loss or damage [that] is causally connected to the offense and bears a significant relationship to the offense.'" Id. at 835, quoting from Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997). "[W]e look to the underlying facts of the charged offense, not the name of the crime [of which the defendant was convicted, or] to which the defendant entered a plea." Ibid., quoting from State v. Landrum, 66 Wash. App. 791, 799 (1992). Here, the defendant violated a civil ordinance (designed to protect against such losses) by instructing his employee to dispose of the goods before the expiration of thirty days. He then concealed this fact from the police, thus interfering with any attempt to retrieve the goods before they were melted down. Under these circumstances a restitution order was proper. See, e.g., McIntyre, 436 Mass. at 835-836 (restitution proper for vehicle damage occurring during assault and battery); Commonwealth v. Denehy, 466 Mass. 723, 740 (2014) (restitution proper for police officer's damaged glasses where defendant convicted of disorderly conduct and assault and battery by means of a dangerous weapon); Commonwealth v. Palmer P., 61 Mass. App. Ct. 230, 232 (2004) (restitution proper for property taken from apartment when defendant convicted of breaking and entering, even though acquitted of larceny).
We also note the defendant challenged only the amount of the restitution at sentencing, arguing that the loss was $7,500, an amount close to what he had paid the seller of the items, minus the value of the property that was recovered. He did not raise the causation argument he now makes, and his failure to do so constitutes "an informed waiver of the opportunity to be heard further" on causation. Commonwealth v. Casserly, 23 Mass. App. Ct. 947, 947 (1986).
The defendant also contends that the judge arrived at a $10,000 restitution figure arbitrarily, and without evidentiary support. He asserts that neither party presented any witnesses as to the value of the goods, and that the Commonwealth relied upon the evidence adduced at trial to suggest that the defendant "paid a person walking in the door . . . close to $7,500." Without presenting further evidence, the prosecutor argued that one could "assume the markup from that is going to be beyond $10,000." The defendant points out that by the Commonwealth's own admission at the restitution hearing, it "d[id not] have any proof of that" fact.
"Restitution may be ordered only for those economic losses adequately documented by the victim and established by the Commonwealth." Denehy, 466 Mass. at 741. Because "the record reveals an arbitrary method of determining the amount of restitution, the order cannot stand." Ibid., quoting from Commonwealth v. Nawn, 394 Mass. 1, 7 (1985).
Conclusion. The judgment is affirmed; the order of restitution is vacated, and the matter is remanded for a new restitution hearing in accordance with this memorandum and order.
Because of the result we reach, we need not address the defendant's additional contention, not presented at the restitution hearing, that the Commonwealth failed to establish even a $7,500 loss to the victim. We note only that in assessing restitution on remand, the judge is permitted to rely on facts proved at trial. See, e.g., Commonwealth v. Palmer P., 61 Mass. App. Ct. at 232-233 (affirming restitution order based on facts adduced at trial).
So ordered.
By the Court (Kafker, C.J., Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 12, 2015.