Opinion
10-P-2277
12-22-2011
COMMONWEALTH v. KERR CARRINGTON.
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 appeals from a decision by a single justice of this court denying a motion to stay the execution of his sentence for 'steal[ing]' a motor vehicle under G. L. c. 266, § 28(a). Our review of the record leads us to conclude that there is no 'likelihood of success on appeal.' Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010). The Commonwealth proceeded on the theory that the defendant stole the car by engaging in larceny by false pretenses.
The defendant's motion for a stay rests on two claims of reversible error in the jury charge on the elements of the crime. Neither has merit. Assuming, without deciding, that the trial judge erred in adding the element of intent permanently to deprive the owner of the car to the jury instructions, this fact could only have helped the defendant, as the Commonwealth was then required to prove an additional criminal element. Moreover, the judge did not err in otherwise instructing the jury to the effect that stealing under the statute may be shown by proof of the elements of larceny by false pretenses. See Commonwealth v. Iannello, 344 Mass. 723, 725-726 (1962); Commonwealth v. Mills, 436 Mass. 387, 391-393 (2002); G. L. c. 277, § 41.
The single justice did not abuse his discretion in denying the defendant's motion to stay the execution of his sentence.
Order of single justice affirmed.
By the Court (Berry, Brown & Grainger, JJ.),