Opinion
No. 12–P–131.
2013-01-29
COMMONWEALTH v. Linda HEAPS.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a conviction of larceny from a person sixty-five years of age or older, G.L. c. 266 § 25( a ). A District Court judge, after a bench trial, found the defendant guilty, sentenced her to one year of probation, and ordered that she pay fifty dollars in restitution. The defendant argues that there was insufficient evidence to sustain her conviction. Background. Family members gave the victim a fifty-dollar Market Basket supermarket gift card on December 27, 2010. The victim's daughter-in-law placed the gift card, along with a Christmas card, on top of the victim's refrigerator. At the time, the defendant was an in-home health care provider for the victim, who suffered from disorientation, which had deteriorated to dementia by the time of trial.
On December 28, 2010, the victim's daughter went to retrieve the gift card, but it was missing. She contacted the Fitchburg police department and reported to Market Basket that the gift card was missing. Officer Christopher Garcia began an investigation. An employee from Market Basket confirmed that the gift card had been used to purchase $30.82 worth of groceries on December 29, 2010. A loss prevention supervisor at Market Basket retrieved the videotape footage for the time and the register at which the gift card was used. Officer Garcia identified the defendant by using a photograph of her from a prior investigation as a cross-reference. The footage also was played at trial. The victim's daughter-in-law and the victim's daughter testified that the defendant was the only person who had been in the victim's home, besides the victim, between the time that the gift card was placed on the victim's refrigerator and the time that it was discovered that the gift card was missing. The daughter also testified that she and her sister did the grocery shopping for the victim, not the defendant.
Sufficiency of the evidence. In reviewing a claim of insufficient evidence, we determine whether, viewing the evidence in the light most favorable to the Commonwealth, a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). The defendant argues that the Commonwealth failed to prove beyond a reasonable doubt that the victim was sixty-five years of age or older, that the gift card was taken from the victim's person, and that the taking was unlawful. The Commonwealth concedes that the evidence was insufficient to prove that the victim was sixty-five years of age or older, therefore, we need only address the remaining two issues.
We agree with the defendant that the evidence is insufficient to prove beyond a reasonable doubt that the defendant took the gift card “from the person” of the victim, as required by G.L. c. 266, § 25, as appearing in St.1981, c. 678, § 5. Larceny from the person is the theft of property under a victim's control or protection. Compare Commonwealth v. Glowacki, 398 Mass. 507, 514 (1986). “Property is under a person's protection if it is attached to him or his clothing or under his immediate guard.” Commonwealth v. Willard, 53 Mass.App.Ct. 650, 655 (2002), quoting from Kantrowitz and Maguire, Massachusetts Criminal Law Sourcebook c. 266, § 25 n. 1, at 266 (MCLE 2001). See Commonwealth v. Lashway, 36 Mass.App.Ct. 677, 679 (1994) (larceny where property taken in victim's presence). Here, the evidence is sufficient only to support an inference that the victim was home at the time of the taking. The record is devoid of any evidence as to where the victim was in the home at the time the gift card was taken.
Separately, the defendant argues that in order to find that the defendant committed an unlawful taking, the fact finder had to “guess what might have happened to cause [the defendant] to find herself in possession of the gift card.” We disagree. The Commonwealth established that the defendant was in possession of, and used, the gift card in the days after it was discovered to be missing from the top of the victim's refrigerator, and that the victim's family members were the only persons who performed grocery shopping for her.
In addition, the Commonwealth introduced evidence to prove the defendant's intent. Officer Garcia testified at trial that during his investigation of the theft he asked the defendant if she was involved in the disappearance of the gift card. The defendant denied any involvement with the missing gift card although the evidence clearly established that she had used it on the previous day. False statements are evidence of consciousness of guilt. See Commonwealth v. Gonsalves, 56 Mass.App.Ct. 506, 511 (2002). On these facts, we are persuaded that a rational jury reasonably could draw the inference that the defendant possessed and used the gift card unlawfully. See Commonwealth v. Grandison, 433 Mass. 135, 140 (2001) (issue is whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”), quoting from Commonwealth v. Lodge, 431 Mass. 461, 465 (2000).
Conclusion. The evidence was insufficient to support the defendant's conviction of larceny from the person of a person sixty-five years of age or older, but was sufficient to support a conviction of the lesser included offense of larceny. Accordingly, so much of the judgment as convicts the defendant of larceny from the person of a person sixty-five years of age or older is vacated and the finding is set aside; the remaining portion of the judgment, finding the defendant guilty of the lesser included offense of larceny, is affirmed; and the case is remanded to the District Court for resentencing.
So ordered.