Opinion
No. 11–P–2107.
2013-04-1
COMMONWEALTH v. Joanne NOEL.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from two convictions of larceny over $250 from a person sixty years of age or older, the defendant argues that (1) the convictions are duplicative because she committed but a single statutory crime and (2) the separate convictions violate protections against double jeopardy. For substantially the reasons in the Commonwealth's brief at pages seven through sixteen, we affirm.
1. Background. The two convictions relate to thefts from two sisters who shared a bedroom in a home where the defendant worked as a housecleaner. The sisters kept their jewelry and other valuables in separate locations in the bedroom. Clara Bucchieri kept her jewelry in a box on top of a long book case, and also had a small pink box she used to store valuables, including a black onyx necklace. She usually placed her purse on top of her jewelry box. Theresa Bucchieri kept her jewelry in her own jewelry box on top of a triple dresser. The defendant stole cash and a black onyx necklace from Clara's purse and jewelry box, and a gold chain and gold choker from Theresa's jewelry box. 2. Discussion. We reject the defendant's contention that the separate and successive thefts from Clara and Theresa constituted but a single crime of larceny under the governing statute. Rather, the defendant committed separate and discrete acts of theft by taking each individual's unique property from different locations within the room. See Commonwealth v. Murray, 401 Mass. 771, 774 (1988) (“successive takings of property actuated by a single, continuing criminal impulse ... may, but need not, be charged as one crime”). The thefts here did not involve a single act, but separate and discrete acts. See Commonwealth v. Jones, 382 Mass. 387, 393 (1981).
Unlike the situation in Commonwealth v. Donovan, 395 Mass. 20, 27–30 (1985), on which the defendant relies, the thefts here were not from a single depository into which several different individuals had made a deposit. Rather, the defendant separately stole from each sister by taking individual and unique valuables kept in separate personal containers in separate locations. The separate thefts from Clara and Theresa were so charged, tried, and emphasized in the evidence and argument at trial. See Commonwealth v. Mamay, 407 Mass. 412, 418–419 (1990).
Similarly, we reject the defendant's claim that separate convictions and punishments for the two thefts violates principles of double jeopardy. “[T]he Morey rule [regarding duplicative convictions] only applies to situations in which two or more convictions arise out of precisely the same act” (emphasis original). Commonwealth v. Gallant, 65 Mass.App.Ct. 409, 415 (2006). “[W]here multiple convictions are derived from separate and discrete acts, those convictions cannot be duplicative.” Commonwealth v. Mahoney, 68 Mass.App.Ct. 561, 566 (2007). As just discussed, the defendant's separate thefts from each sister involved discrete acts of theft that were not necessary to completion of the other.
Judgments affirmed.