G. L. c. 266, § 120. An essential element of trespass is that the defendant be ordered off the property by someone with lawful control over the property. Commonwealth v. Greene, 461 Mass. 1011, 1011–1012 (2012).Here, the Commonwealth's sole evidence that the defendant was excluded from the St. Francis House homeless shelter property by someone with lawful control was Officer Kelvin Ervin's testimony. He testified that, on December 10, 2013 (the day prior to the defendant's arrest), he heard a St. Francis House security staff member tell the defendant that the defendant "had been trespassed on that day for drug activity."
G. L. c. 266, § 120. An essential element of trespass is that the defendant be ordered off the property by someone with lawful control over the property. Commonwealth v. Greene, 461 Mass. 1011, 1011-1012 (2012). Here, the Commonwealth's sole evidence that the defendant was excluded from the St. Francis House homeless shelter property by someone with lawful control was Officer Kelvin Ervin's testimony. He testified that, on December 10, 2013 (the day prior to the defendant's arrest), he heard a St. Francis House security staff member tell the defendant that the defendant "had been trespassed on that day for drug activity."
The defendant maintains that the Commonwealth failed to meet its burden of proof because there was no evidence that the park was posted, and no crime was actually committed. See Commonwealth v. Greene, 461 Mass. 1011, 1011–1012, 964 N.E.2d 982 (2012). Reasonable suspicion is not lacking even if the objective factual basis for reasonable suspicion is shown after the fact to be erroneous.
Id. at 71, 948 N.E.2d 1223, quoting from Commonwealth v. Rodriguez, 456 Mass. 578, 583, 925 N.E.2d 21 (2010). Another recent case turning on this latter portion of theLatimore test is Commonwealth v. Greene, 461 Mass. 1011, 964 N.E.2d 982 (2012). In Greene , the court reversed a conviction for trespass, citing Latimore,
The defendant emphasizes that “[i]n the lexicon of Massachusetts crimes there is no such crime as ‘breaking and entering’ unaccompanied by intent to commit a felony or a misdemeanor.” Commonwealth v. Greene, 461 Mass. 1011, 1012, 964 N.E.2d 982 (2012), quoting Commonwealth v. Vinnicombe, 28 Mass.App.Ct. 934, 935, 549 N.E.2d 1137 (1990). The Commonwealth, however, presented evidence from which the jury could have inferred that the defendant entered the apartment intending to commit an assault.
We therefore conclude that, even taken in the light most favorable to the Commonwealth, the scant evidence presented in this case was not sufficient to warrant a finding beyond a reasonable doubt on the essential element that the defendant entered into or remained on the premises of another. See Commonwealthv.Greene, 461 Mass. 1011, 1011 (2012) (police officer's hearsay testimony that defendant forbidden to enter mother's property insufficient to show defendant excluded from premises by person with lawful control).
However, an attempt to break and enter, unaccompanied by an intent to commit a felony or a misdemeanor, is not by itself a crime. See Commonwealthv.Greene, 461 Mass. 1011, 1012 (2012); Commonwealthv.Vinnicombe, 28 Mass.App.Ct. 934, 935 (1990). We need not address the defendant's other claims.
However, an attempt to break and enter, unaccompanied by an intent to commit a felony or a misdemeanor, is not by itself a crime. See Commonwealth v. Greene, 461 Mass. 1011, 1012 (2012) ; Commonwealth v. Vinnicombe, 28 Mass. App. Ct. 934, 935 (1990). We need not address the defendant's other claims.
See generally G. L. c. 278, § 7 ("A defendant in a criminal prosecution, relying for his justification upon a license . . . or authority, shall prove the same"); Commonwealth v. Jefferson, 377 Mass. 716 (1979) (applying G. L. c. 278, § 7, to a charge of unlawful possession of hypodermic needles). The decision in Commonwealth v. Greene, 461 Mass. 1011, 1012 (2012), is instructive. There the defendant was convicted of criminal trespass for entering onto his mother's property after his mother had moved to a nursing home.
, We agree with the defendant that the judge thereby improperly allowed the admission of hearsay through the backdoor. See Commonwealth v. Greene, 461 Mass. 1011, 1011 (2012) (officer's testimony that he "learned" information from someone is inadmissible hearsay); see also United States v. Maher, 454 F.3d 13, 23 (1st Cir. 2006) ("warning" prosecutors against "backdoor attempts" to admit statements from declarants who do not testify). Contrast Commonwealth v. Cordle, 404 Mass. 733, 743-744 (1989) (officer testifying to actions taken in response to inadmissible hearsay is not hearsay "through the backdoor"). The particular manner in which the witness responded to the questions indicates that his knowledge of the relationship was in fact based on what Bailey told him.