Opinion
14-P-1989
04-27-2016
COMMONWEALTH v. DAVID ERICK SCHER.
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 trial in the District Court, the defendant was convicted of larceny from a building in violation of G. L. c. 266, § 20. On appeal, he claims the trial judge erred by (1) denying his motion for a required finding of not guilty, (2) permitting testimony concerning unavailable surveillance footage, and (3) admitting in evidence an altered surveillance recording. We affirm.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On December 20, 2012, the victim, a student at Suffolk Law School (law school) placed his laptop computer and other belongings in his locker at the law school. The locker was secured with a lock requiring a key, but the bottom hinge on the locker door was loose such that the locker could be opened without removing the lock. On January 5, 2013, the victim returned to the law school from winter break and discovered the laptop and other items missing from his locker. He immediately reported the theft to Suffolk University police, and Officer Jameson Yee was assigned to investigate.
The law school has forty to fifty surveillance cameras throughout the law school building. In the course of his investigation, Officer Yee reviewed surveillance footage from December 20, 2012, to January 5, 2013. From the surveillance footage, Officer Yee observed the victim's locker open three times during that period: twice by the victim and once by the suspect. Law school administrators familiar with the defendant identified him from the surveillance footage.
Officer Yee also observed that the dates and times on two of the three recordings were incorrect. To correct the inaccuracy, he contacted Mikhail Ilin in the information technology section of the Suffolk University police department. Ilin confirmed the error, adjusted the dates and times, and saved the changes.
When interviewed, the defendant denied taking anything from the victim's locker or even being in the area at the time of the theft. The defendant asked Officer Yee if he could resolve the matter by buying a new laptop for the victim. Officer Yee explained that the investigation would continue. Four days later the law school received by mail a package containing the missing laptop.
Discussion. Sufficiency of evidence. The defendant contends the trial judge should have granted his motion for a required finding of not guilty because the Commonwealth's evidence was not sufficient to establish that the property was under the protection of a building at the time it was stolen. To sustain a conviction for larceny in a building, the Commonwealth must prove that the defendant (1) took or carried away property (2) that belongs to another, (3) from a building, (4) with the intent to deprive that person of the property permanently. Commonwealth v. Sollivan, 40 Mass. App. Ct. 284, 287 (1996). "[I]t is not enough [for the Commonwealth] to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief." Id. at 286, quoting from Commonwealth v. Lester, 129 Mass. 101, 103 (1880). The Commonwealth also must show "that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building." Ibid., quoting from Lester, supra.
Here, the victim placed items of value in his law school locker for safe-keeping over the winter break, a time when there were fewer people at the law school. The locker was secured with a lock. The building was routinely patrolled by security officers, and a network of surveillance cameras captured and recorded movement within the hallways. From these facts the jury could reasonably have found that the victim relied on the locker and surveillance cameras, part of the law school building, to safeguard his possessions while he was away from the building. See Commonwealth v. Willard, 53 Mass. App. Ct. 650, 655 (2002) (stolen property was under protection of building where, although victims were asleep in apartment, they relied on security of locked doors and windows and alarm system to safeguard their possessions). Simply put, this evidence, viewed in the light most favorable to the Commonwealth, was sufficient to establish beyond a reasonable doubt that the stolen items were under the protection of the building.
Surveillance recording. The surveillance system at the law school maintains recorded footage for a limited period of time. When the system reaches capacity, it starts again, recording over previously recorded images. The defendant argues that the judge erred by allowing Officer Yee to testify to his personal observations of surveillance footage that was not preserved for the defendant to review or to use during trial. We review the judge's decision for abuse of discretion. Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294 (2006).
"A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden . . . to establish a 'reasonable possibility based on concrete evidence rather than a fertile imagination that access to the [evidence] would have produced favorable evidence to his cause.'" Commonwealth v. Meas, 467 Mass. 434, 448 (2014), quoting from Commonwealth v. Cintron, 438 Mass. 779, 784 (2003). Here, the defendant merely asserts that he was unable to challenge the officer's testimony without viewing all of the footage. He has failed to establish even a reasonable possibility that the unpreserved footage would be exculpatory. See Commonwealth v. Dinkins, 440 Mass. 715, 718 (2004) ("'[C]ould have' is merely an introduction to speculation and is not a substitute for 'concrete evidence'" [citation omitted]). Thus, we need not engage in a balancing test to determine the Commonwealth's culpability, the materiality of the evidence, and possible prejudice to the defendant. See Commonwealth v. Williams, 455 Mass. 706, 718 (2010) ("If the defendant does not establish as a threshold matter that the evidence at issue is possibly exculpatory . . . , there is no need to engage in [the] balancing test").
The defendant also contends that the judge erred in admitting the surveillance recording because the date and time on the recording had been altered. At trial, the surveillance recording was properly authenticated by Officer Yee. See Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977) ("[P]roof of authenticity usually takes the form of testimony of a qualified witness either [1] that the thing is what its proponent represents it to be, or [2] that circumstances exist which imply that the thing is what its proponent represents it to be" [citation omitted]). Officer Yee testified that the recording was a fair and accurate representation of what he reviewed when investigating the case. Ilin then testified regarding the steps he took to correct the time stamp on the recording. Any concerns regarding the time stamp and how it was altered "were properly the subject of cross-examination and affected the weight, not the admissibility" of the recording. Commonwealth v. Mahoney, 400 Mass. 524, 530 (1987). In these circumstances, there was no abuse of discretion in the admission of the surveillance recording.
Judgment affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 27, 2016.