Opinion
12-P-474
06-20-2013
COMMONWEALTH v. BRIAN J. MULLEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of multiple counts of larceny over $250, two counts of vandalizing property, and two counts of larceny from a building. After a separate hearing, the defendant was ordered to pay restitution. On appeal, he challenges the sufficiency of the evidence on four of his convictions. He also challenges the propriety of the restitution order. We affirm.
1. Sufficiency of the evidence. The defendant claims there was insufficient evidence to support his two vandalism convictions as well as his two convictions of larceny from a building. We disagree. As the defendant concedes, the record amply supports his multiple larceny convictions for his theft of the heavy equipment, machinery, and trucks from the victim's property. The defendant instead claims that because there was no evidence as to when the shed or mobile home were damaged or when the larcenies from those buildings occurred, the jury's verdicts were based on speculation. However, because the timing of these offenses is not an element of the crimes charged, the Commonwealth was not obliged to prove when they occurred. See Commonwealth v. Dunnington, 390 Mass. 472, 476-477 (1983); Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 370 (2003). Furthermore, viewed in the light most favorable to the Commonwealth, the evidence demonstrated that the defendant, who had previously done work for the victim, falsely held himself out to be the caretaker of the victim's property. He told William Burke and Wayne Cunagin that he had been instructed to clear the property, 'everything had to go,' and 'the whole property had to be cleaned out.' The defendant also told Cunagin that the property had to be cleared quickly due to a deadline imposed by an environmental agency. He discussed the removal of the mobile home with Burke and Daniel Saldo, and showed Saldo maintenance equipment from the shed that the victim had previously locked away. The defendant also invited Saldo to remove any items that were outside the shed, falsely told Saldo 'he was in charge of cleaning up the property for the land owner,' and 'he was going to get everything out of there.' The defendant also lied to a State trooper about not being on the victim's property, and not scrapping metal at Dobbert's Recycling. There was also evidence that the shed's door had been damaged, and aluminum siding had been removed from the back of the mobile home. Finally, the Commonwealth introduced receipts showing that the defendant had scrapped, among other things, aluminum siding for cash. From all this evidence, coupled with the defendant's consciousness of guilt, see Commonwealth v. Fitzpatrick, 463 Mass. 581, 593 (2012), a rational fact finder could reach the reasonable and possible inference that the defendant orchestrated not merely the removal of the heavy equipment from the property, but he (alone or with others) also vandalized the shed and mobile home, and stole the items in question. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ('[I]nferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable'). Indeed, it was the defendant's stated intent to clear the property of everything, not just the heavy equipment and machinery.
2. Restitution. The defendant also claims that because the evidence was insufficient to support the above convictions, the Commonwealth failed to establish a causal connection between the restitution ordered and offenses committed. See Commonwealth v. McIntyre, 436 Mass. 829, 835 (2002). Given our resolution of the defendant's sufficiency of the evidence claim, there exists a suitable causal connection to justify the judge's restitution order. There was no abuse of discretion. See Commonwealth v. Nawn, 394 Mass. 1, 8-9 (1985).
Judgments affirmed.
Order of restitution affirmed.
By the Court (Cypher, Vuono & Meade, JJ.),