Opinion
No. 12–P–925.
2013-04-23
COMMONWEALTH v. Chhoeurng CHAN.
By the Court (GREEN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The sole issue presented by defendant-appellant Chhoeurng Chan (defendant) is whether the evidence at trial was sufficient to support his conviction of wilful and malicious destruction of property with a value of more than $250 in violation of G.L. c. 266, § 127.
The evidence was that the defendant and another man tried to break and enter the victim's home in Lynn on the afternoon of February 11, 2010. At first, the two men knocked at the front door. The victim saw them through his large street level basement window, and then noticed that they drove off in a white Acura automobile. The victim had never seen them before. About twenty minutes later, the victim heard a bang, followed by several more bangs, ran upstairs to his kitchen, and saw the two intruders on the other side of his kitchen door trying to gain entry to the interior of his home. The victim reached for a nearby phone and called the police. The victim gave the police a physical description of the suspects who were apprehended while operating a white Acura sedan and identified by the victim as a result of a show-up identification procedure. The evidence indicated that there were two glass doors that secured one of the entrances to the victim's home. One door led from outside to a sunroom and an inner door led from the sunroom to the kitchen. When the victim came upstairs from his basement, he noticed the outer glass door had shattered, but the intruders were unable to get past the inner glass door which had cracked “like a windshield when you smash it.” As the victim stood in his kitchen, he was only feet away from the intruders who were on the other side of the inner glass door. There was no evidence describing either of the glass doors in terms of the number of panes of glass, whether the glass was reinforced in any way, and the means used to break and crack the glass.
The defendant also was convicted of breaking and entering in the daytime with intent to commit a felony. G.L. c. 266, § 18. He raises no arguments with respect to that conviction on appeal.
The victim did not see the intruders break the glass on the outer door, but assumed they had reached in and unlocked it. There was no evidence about the type of locking mechanism on either door. A crime scene investigation was conducted, but particles of glass from the doors were not matched to the defendant's boots.
There was evidence that the cost to repair both doors was in excess of $250.
Judge's reasoning. The defendant properly preserved the issue of the sufficiency of the evidence by arguing it in a motion for a required finding of not guilty at the close of the Commonwealth's case and again at the close of the evidence. We therefore review under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671 (1979).
“While, in most crimes, the wilful doing of an unlawful act suffices to prove malice, under G.L. c. 266, § 127, it does not. In addition to the intent to inflict injury to the property, the crime requires a state of mind infused with cruelty, hostility or revenge.” Commonwealth v. Redmond, 523 Mass.App.Ct. 1, 4 (2001). We recently reversed a conviction of violating § 127 because the evidence merely established that the intruders caused damage to property incident to a forced entry. Instead, the damage must reflect “gratuitous, excessive violence purposefully designed to intimidate and overpower, ... or destructive activities that were by design and hostile to the owner of the property.” Commonwealth v. Doyle, 83 Mass.App.Ct. 384, 388 (2013) (quotation omitted). The damage in this case is consistent with a forced entry and no more. Contrast, Commonwealth v. McGovern, 397 Mass. 863, 868 (1996) (defendant's act of tearing apart a parking lot toll booth was purposeful and hostile to owner); Commonwealth v. Gordon, 82 Mass.App.Ct. 227, 230 (2012) (the element of maliciousness was established on the basis of the magnitude of the destruction and the absence of any explanation for it). Thus, even viewed in the light most favorable to the Commonwealth, the evidence was not sufficient to establish the necessary element of malice under G.L. c. 266, § 127. The judgment on the count for malicious destruction of property is reversed, the verdict is set aside, and a new judgment shall enter for the defendant on that count. The judgment on the count for breaking and entering in the daytime with intent to commit a felony is affirmed.
So ordered.