Opinion
15-P-286
03-17-2016
COMMONWEALTH v. MICHAEL ULEVICIUS.
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
The defendant, Michael Ulevicius, was convicted after a jury-waived trial on charges of assault with intent to murder, assault and battery by means of a dangerous weapon, larceny of over $250, and assault and battery. On appeal he seeks reversal of the conviction of larceny over $250, contending that the evidence was not sufficient to prove beyond a reasonable doubt that he -- and not someone else -- had stolen approximately $1,000 in cash. We affirm.
The defendant was also convicted of attempted murder. The trial judge vacated that conviction as duplicative of the defendant's conviction of assault with intent to murder.
The defendant filed a general notice of appeal but makes no argument as to his other convictions, which we therefore affirm without further discussion. See Commonwealth v. Hampton, 26 Mass. App. Ct. 938, 938 & n.1, 941 (1988); Commonwealth v. Thomas, 67 Mass. App. Ct. 738, 738 n.1, 743 (2006).
"To support a conviction of larceny under G. L. c. 266, § 30, the Commonwealth is required to prove the 'unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently.'" Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985) (footnote and citation omitted). When reviewing a claim of insufficient evidence, 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. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
The defendant and his girl friend lived together in an apartment in Quincy. On January 4, 2014, she planned to cash her paycheck for $1,000, and give the defendant $100 to $200 before going to work. As it happened, she did not have to report for work that evening. Instead of giving the defendant money, she cashed her paycheck and the two of them went out for food and drinks. Later that evening the defendant returned home. She stayed at a bar without him. She returned home in the early morning hours of January 5, 2014, and was attacked. The defendant punched, kicked, and strangled her. He also hit her with her cellular telephone, damaging her eye socket. She bled profusely.
Afraid that the defendant would kill her, the victim pretended to be dead. When the defendant went to the bathroom, she ran out of the apartment and down the street to her father's house. The police were called and they responded to both the father's house and the apartment. The defendant had fled. While still on the scene, the police retrieved her purse from the apartment, but her wallet was missing. A professional cleaner later found the wallet and returned it. The wallet was covered in blood. The approximately $1,000 it had contained was missing.
He was apprehended and arrested approximately one month later.
"Circumstantial evidence is competent to establish guilt beyond a reasonable doubt, and reasonable inferences may be drawn from the evidence." Commonwealth v. White, 452 Mass. 133, 135 (2008) (citation omitted). See Commonwealth v. Brennan, 74 Mass. App. Ct. 44, 47-48 (2009) ("An inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable'" [citation omitted]). The defendant contends that the evidence was insufficient because it was equally likely that the professional cleaner (or, perhaps, the landlord) had taken the money from the wallet. The existence of a third-party culprit defense in and of itself does not place the facts in equipoise. "That another . . . may have had the opportunity to commit the crime goes only to the weight of the evidence, which is an issue for the jury." Cramer v. Commonwealth, 419 Mass. 106, 112 (1994).
Viewing the evidence in the light most favorable to the Commonwealth, the defendant and the victim were the only two people present in their apartment on the night of the attack. The defendant, who did not have any money, knew that she had cashed her paycheck earlier that day. After being attacked by the defendant, she ran from the apartment without her purse in which there was a wallet containing approximately $1,000. The defendant, who knew that her wallet contained the money, was alone in the house and then fled the scene. The police recovered the purse from the apartment, but the wallet was missing from the outset, long before the professional cleaner arrived. The blood-covered empty wallet was later recovered from the apartment by the cleaner. The judge sitting as fact finder was permitted to conclude that the defendant attacked his girl friend, beat her into apparent unconsciousness, took her money, and fled.
Judgments affirmed.
By the Court (Hanlon, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 17, 2016.