Opinion
No. 15–P–182.
06-23-2016
COMMONWEALTH v. Brandon K. PATTERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury found the defendant, Brandon K. Patterson, guilty of receiving stolen property. The defendant appeals, arguing that (1) the Commonwealth failed to present sufficient evidence that the defendant “knowingly possessed” stolen property; (2) the trial judge abused his discretion by denying the defendant's motion in limine to preclude testimony regarding marked bills given to a confidential informant; (3) the trial judge erred in denying the defendant's motion for a required finding of not guilty at the close of all the evidence and after the jury returned their verdict; and (4) the prosecutor's closing argument was improper. We affirm.
The other charges were dismissed before trial.
1. Sufficiency of the evidence. At the close of the evidence, the defendant moved for a required finding of not guilty, arguing that the evidence was insufficient to prove that he knowingly possessed stolen property. We review to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979).
General Laws c. 266, § 60, provides in pertinent part that “[w]hoever buys, receives or aids in the concealment of stolen ... property, knowing it to have been stolen ... shall ... be punished....” In order to prove the defendant guilty of receiving stolen property, the Commonwealth must prove beyond a reasonable doubt that the property had been stolen, that the defendant knew that the property had been stolen, and that the defendant knowingly had the stolen property in his possession. Commonwealth v. Namey, 67 Mass.App.Ct. 94, 97 (2006). See Criminal Model Jury Instructions for Use in the District Court, Instruction 8.600 (2009).
Viewing the evidence, and the rational inferences that could be drawn from the evidence, in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to support a finding that the defendant knowingly possessed stolen property. There was testimony at trial that, days after receiving reports of burglaries at stores selling collectibles and jewelry, police arranged to have confidential informants purchase stolen goods from the defendant and his associates. Following the undercover operation, police recovered three watches, valued at $2,000, and rare currency, valued at approximately $1,000, from the vehicle in which the transaction had just occurred. One of the watches was found at the defendant's feet. The recovered goods matched the description of items stolen from the recently burglarized stores. The defendant was found to have $350 in marked bills on his person.
A defendant's knowledge that property was stolen may be inferred from the circumstances. Commonwealth v. Aponte, 71 Mass.App.Ct. 758, 762 (2008). Where a defendant possessed property “in a context fraught with suspicion,” the jury may infer that he knew the property was stolen goods. Id. at 762–763, quoting from Commonwealth v. Kirkpatrick, 26 Mass.App.Ct. 595, 602 (1988). The combination of stolen goods, the evidence that the defendant sold the goods for an amount far below their market value, and the short period of time between the burglaries and the sale of stolen goods, was sufficient to establish the defendant's knowledge that the property had been stolen. See Commonwealth v. Obshatkin, 2 Mass.App.Ct. 1, 2–3 (1974) ; Commonwealth v. Hunt, 50 Mass.App.Ct. 565, 569 n. 2 (2000).
A defendant's possession of stolen property “may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” Commonwealth v. Rabb, 70 Mass.App.Ct. 194, 209 (2007) (quotation omitted). Here, there was circumstantial evidence from which the jury could reasonably infer that the defendant had constructive possession of the stolen goods. The stolen goods were not in the vehicle before the defendant and his associates entered it, the stolen goods were recovered from the confidential informants, and the defendant was found to have $350 in marked bills immediately following the controlled purchase. This circumstantial evidence sufficed to prove that the defendant knowingly possessed stolen goods. In sum, the evidence was sufficient for the jury to conclude, beyond a reasonable doubt, that the elements of the statute had been satisfied.
2. Motion in limine. The defendant argues that the judge erred by denying the defendant's motion in limine to preclude testimony regarding the marked bills used in the controlled purchase of stolen goods. According to the defendant, the testimony should not have been admitted because the police did not know what happened to the bills after they were recovered from the confidential informants and the defendant. The parties dispute whether the issue of marked bills was preserved below. However, we need not determine whether the defendant's objections were sufficient to alert the judge to the specific concerns raised on appeal because there was no error in the admission of the testimony and no abuse of discretion in the judge's denial of the defendant's motion in limine.
The defendant objected at trial on the grounds that the testimony was hearsay, and later made a general objection.
The defendant argues that the best evidence rule required the Commonwealth to present the actual currency used by investigators. The defendant's reliance upon the best evidence rule is misplaced here, where the “contents” of the writing are not sought to be proved. Mass. G. Evid. § 1002 (2016). See Commonwealth v. DeJesus, 87 Mass.App.Ct. 198, 201 (2015) (original currency not required where only question was whether photocopy of bill used in undercover operation matched bills found in defendant's pocket after drug transaction). The officer's testimony that he photographed the currency and compared the serial numbers on those bills with the serial numbers on the currency found on the defendant was not error. Ibid.
Nor was it error to admit photographs of the currency, particularly in light of the defendant's use of that evidence. The Commonwealth introduced the photographs in evidence only after defense counsel thoroughly cross-examined the police detective about the original currency. “Concerns regarding the completeness or production of the image go to its weight and not its admissibility.” Renzi v. Paredes, 452 Mass. 38, 52 (2008).
During voir dire, conducted regarding the location of the original currency, the prosecutor disclosed that the lead officer on the case had retired, and that the Commonwealth could not determine what had happened to the original currency. The defendant argues that he was deprived of his right under the Sixth Amendment to the United States Constitution to confront the lead officer. The defendant has not established a proper foundation for this claim and had fair opportunity to thoroughly cross-examine the police detective about issues pertaining to the currency.
3. Motions for a required finding of not guilty. At the close of evidence, and again following the jury verdict, the defendant moved for a required finding of not guilty, which the judge denied in a written memorandum of decision. We review the judge's ruling to determine whether he abused his discretion or committed an error of law. Commonwealth v. Cinelli, 389 Mass. 197, 204–205, cert. denied, 464 U.S. 860 (1983).
The defendant contends that, in denying his motions for a required finding, the judge demonstrated bias in favor of the Commonwealth because he indicated that he did not have time when considering a motion for a required finding at the close of all the evidence to research the issue of possession and did not want to preclude the Commonwealth's right to appeal by granting a motion at that juncture. We discern no bias or other abuse of discretion. The judge gave full consideration to the defendant's motion for a required finding following the verdict. His denial of the defendant's motion at the close of all the evidence case was based on a determination that the jury could draw the reasonable inference from the evidence that the defendant received stolen property. The judge's memorandum of decision regarding his denial of the motion for a required finding of not guilty demonstrates that he gave the defendant's motion due consideration and relied on the relevant law. There is no merit to the defendant's argument that the judge was biased in favor of the Commonwealth.
The defendant also argues that the judge relied on facts not in evidence and misstated the evidence in his ruling. The judge's memorandum of decision makes clear that he relied only on facts in evidence. The judge's misstatement, confusing the defendant with his cousin, who had the same last name, was immaterial to the analysis of sufficiency of the evidence. “Misstatements in the judge's findings of fact not essential to his ultimate conclusions will not invalidate findings which are supported by subsidiary facts .” Commonwealth v. Silanskas, 433 Mass. 678, 683 n. 4 (2001), quoting from Commonwealth v. Rodriguez, 425 Mass. 361, 368 (1997).
Again, viewing the evidence in the light most favorable to the Commonwealth, the evidence was sufficient for a rational trier of fact to conclude that the defendant knowingly possessed stolen property. See § 1, supra. The judge properly denied the motions.
4. Closing argument. The defendant claims that the prosecutor argued facts not in evidence and provided improper opinion. Because the defendant objected to the challenged portions of the argument, we review for prejudicial error. Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015).
When the challenged comments are viewed “in the context of the prosecutor's entire argument, as well as in light of the judge's instruction to the jury and the evidence,” it is apparent that there was no error. Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984). The prosecutor asked the jury to draw reasonable inferences and conclusions from the evidence. This was proper. Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978). By asking the jury to “connect the dots” between the defendant's receipt of marked bills and his possession of stolen goods, the prosecutor attempted to assist the jury in analyzing, evaluating, and applying the evidence. This also was proper. Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980). Finally, even if any of the challenged statements was error, the judge's instructions to the jury regarding their evaluation of the closing arguments mitigated any potential prejudice.
Judgment affirmed.