Opinion
15-P-339
04-05-2016
COMMONWEALTH v. CASSANDRA LEMERY.
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
After a jury trial in the District Court, the defendant, Cassandra Lemery, appeals from a conviction of receiving stolen property over $250. On appeal, she argues that: (1) the Commonwealth provided insufficient evidence to support her conviction; (2) the judge erroneously admitted irrelevant and overly prejudicial evidence; and (3) the judge considered impermissible factors in her sentencing. We affirm.
Discussion. 1. Sufficiency of the evidence. "In order to be guilty of the crime of receiving stolen goods, '(1) one must buy, receive or aid in the concealment of property which has been stolen or embezzled, (2) knowing it to have been stolen.'" Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 664 (2002), quoting from Commonwealth v. Yourawski, 384 Mass. 386, 387 (1981). "The crime of receiving stolen goods may be proved by circumstantial evidence." Cromwell, supra at 668, citing Commonwealth v. Obshatkin, 2 Mass. App. Ct. 1, 2 (1974).
Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury permissibly could have found that the defendant knowingly possessed stolen property valued over $250. The jury was entitled to make the following inferences. First, that the defendant knew the jewelry was stolen based on her conflicting stories as to how she came into possession of it. Commonwealth v. Lao, 443 Mass. 770, 779 (2005) ("If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province"). Second, that she possessed the items less than twenty-four hours after they were reported stolen. Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 569 n.2 (2000)("[W]hen a defendant possesses property 'recently' stolen, that possession alone is a sufficient basis for the jury to infer that [she] knows it to be stolen").
Similarly, the jury permissibly could have found that the value of the stolen jewelry was worth at least $250. The defendant sold twenty-five pieces of jewelry to Boston Estate Buyers and received $2,400 for all of the items. See Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 600 (1988). The victims identified several of the pieces of jewelry that the defendant sold. Those pieces included a diamond engagement ring that one victim, Kathleen McBride, testified was worth $8,000. McBride's wife, Michelle Crandall, corroborated her testimony, stating that they had McBride's engagement ring appraised and although she could not remember the exact value, she recalled the value as between $7,000 and $8,000. The jury was entitled to credit the victims' testimony and find that the value of the stolen property was at least $250. See Lao, supra.
The defendant sold eight rings, including four diamond rings; one pair of diamond stud earrings; one diamond pendant; a gold cross charm; a gold pendant; a gold bracelet; a gold rope chain; and several charms and broken pieces of jewelry.
2. Trial testimony. "Generally, a trial judge is accorded 'substantial discretion in deciding whether evidence is relevant,' and whether relevant evidence should be excluded if it is less probative than prejudicial.'" Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005), quoting from Commonwealth v. Tobin, 392 Mass. 604, 613 (1984). See Mass. G. Evid. §§ 401, 402, 403 (2015). As such "[t]he judge's decision will stand absent palpable error." Talbot, supra
Jay Shoostine, of Boston Estate Buyers, testified that the defendant told him that she received the jewelry from a family member, either as a gift or as an inheritance. However, at trial, the defense was that she obtained the jewelry at a junkyard and did not know it was stolen. The defendant's conflicting accounts of how she came into possession of the jewelry illustrated consciousness of guilt, probative of her knowledge that the jewelry was stolen. Mass. G. Evid., § 1110 (2015). Commonwealth v. Woods, 466 Mass. 707, 715 (2014), quoting from Commonwealth v. Rojas, 388 Mass. 626, 629 (1983) ("In conjunction with other evidence, a jury may properly consider actions and statements of a defendant that show a consciousness of guilt"). The defendant's argument that Shoostine's testimony was unduly prejudicial and irrelevant is unavailing. We discern no error.
3. Sentencing. The defendant was sentenced to two years committed in a house of correction, which was within the statutory sentencing limits. G. L. c. 266, § 60. The defendant argues that the judge violated her constitutional protection against cruel and unusual punishment and her due process rights by basing the sentence on improper factors: the defendant's pregnancy, the judge's belief that the defendant was addicted to drugs, and uncharged criminal conduct. The record belies these contentions.
The defendant brought her pregnancy, as well as a prior miscarriage, to the judge's attention in a bid for leniency and in particular to avoid a committed sentence. She did not get the response she wanted, but a fair review of the record establishes that the sentencing judge provided robust and proper reasons why a committed sentence was warranted. The defendant had been placed on probation repeatedly, and repeatedly violated probation, even after serving a split sentence with ninety days committed and fifteen months suspended. In addition, the harm to the victims was significant, both monetarily and sentimentally.
The judge did not punish the defendant for uncharged conduct, the burglary of the victims' home. To the contrary, the judge properly noted that he did not know whether or not the defendant was involved in the burglary. Instead, the judge properly considered "the nature of the offense, the circumstances of its commission, and the defendant's prior convictions," Commonwealth v. Alfonso, 19 Mass. App. Ct. 599, 610 (1985), in fashioning the sentence. See Commonwealth v. Healy, 452 Mass. 510, 515 (2008). The defendant received stolen property and because she created a market for such property, can be held accountable for the violation the victims experienced. See ibid.
Additionally, the record establishes that the judge was sympathetic to the defendant's past drug dependence and considered it a mitigating factor when he sentenced her to two years, rather than the statutory maximum committed sentence of two and one-half years. See Commonwealth v. Donohue, 452 Mass. 256, 264 (2008); G. L. c. 266, § 60.
The judge commented that he was initially inclined to sentence the defendant to the statutory maximum, but "I will consider the fact that she has -- that she has a substance abuse issue that drove her to this point in her life."
The judge sentenced the defendant within the statutory guidelines and properly used his discretion to determine that she was not a candidate for probation. See Commonwealth v. Goodwin, 414 Mass. 88, 92-93 (1993); Donohue, supra.
Judgment affirmed.
By the Court (Green, Hanlon & Henry, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 5, 2016.