Opinion
No. 12–P–818.
2013-05-29
COMMONWEALTH v. John A. McGAFFIGAN.
By the Court (KANTROWITZ, BROWN & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant argues that he is entitled to a new trial because the judge's findings convicting him of shoplifting and acquitting his sister of receiving stolen property are factually inconsistent. However, the defendants were not identically situated; there was significant consciousness of guilt evidence concerning the defendant. The findings do not necessarily “suggest inconsistent interpretations of the evidence presented at trial,” Commonwealth v. Gonzalez, 452 Mass. 142, 151 n. 8 (2008), because the judge could have believed the sister's testimony that she intended to pay for the goods while still finding that the defendant intended to steal them. Moreover, even assuming that the findings were inconsistent and were based on leniency towards the defendant's sister, “leniency is not an error that prejudices the defendant, and no reversal or new trial is required.” Id. at 154. Accord Commonwealth v. Pimentel, 73 Mass.App.Ct. 777, 786–787 & n. 9 (2009). The defendant conceded that the evidence was sufficient to convict him. We discern no basis for his claim of a due process violation in the current record, especially given his failure to raise the claim of gender discrimination below.
Orders denying motion for new trial and motion to vacate finding affirmed.