Opinion
No. 15–P–863.
08-12-2016
COMMONWEALTH v. James M. PERKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a District Court bench trial, the defendant was convicted of maliciously damaging a motor vehicle, in violation of G.L.c. 266, § 28(a ). The charge arose from the defendant's slashing of all four tires on a vehicle owned by his girlfriend. For the following reasons, we affirm.
Background. The judge could have found the following facts. The vehicle in question was a 1999 Chevrolet Suburban. As evidenced by its certificate of title, as well as by witness testimony, it was owned by the defendant's girlfriend, with whom he resided. On October 8, 2014, the girlfriend was sitting inside the vehicle in a supermarket parking lot, while the defendant was inside the store. When he returned and got into the vehicle, she was on her cellular telephone, speaking to her children's father. The defendant interrupted her, and she told him to be quiet. He then grabbed the girlfriend's phone and threw it out the car window.
The girlfriend testified that the vehicle was hers. She also testified that while she had known the defendant since childhood, they had been in a relationship for only about six months at the time of the incident. A neighbor testified that, as long as the girlfriend had lived there, and before the neighbor ever saw or met the defendant, the girlfriend had this particular vehicle and used it to give the neighbor rides.
When they got home, the defendant went into the house, and the girlfriend walked up the street. Upon her return, she discovered that all four tires on the vehicle were flat. The police were called, and the defendant was arrested. For reasons that are unexplained, the defendant was taken to the hospital, and, while there, conversed with a police officer. The defendant denied that he had hit his girlfriend, stating, “I know why now she's telling them that. Because she's mad because I broke her phone and I slashed her tires.”
Three different neighbors testified that they saw the defendant stabbing the tires with a knife. When one of them yelled to the defendant that he was in trouble, the defendant replied that he was not in trouble, because they were his tires. Another neighbor testified that a few days prior to the tire slashing, the vehicle would not start, and the tires were bald. She saw the defendant working outside for two nights fixing the vehicle, getting it to start again and putting new tires on it. The girlfriend testified that she and the defendant shared everything, including the vehicle, and acknowledged that he recently had purchased and installed the tires.
Discussion. 1. Applicability of G.L.c. 266, § 28(a). The defendant contends that the tires were separate, removable property, distinct from the vehicle, and therefore, G.L.c. 266, § 28(a), which prohibits malicious damage to a motor vehicle, was not applicable. According to the defendant, the only suitable charge was one under G.L.c. 266, § 127, which, more generally, prohibits malicious destruction or injury to personal property. Case law reveals, however, that tire-slashing has been prosecuted under both statutes. See and compare Commonwealth v. Kirker, 441 Mass. 226, 228–229 (2004), with Commonwealth v. Baker, 46 Mass.App.Ct. 915, 915 (1999). Prosecution under § 28(a) is appropriate, because tire-slashing reasonably may be found to constitute malicious damage to the vehicle of which the tires were a part. Whether to charge the defendant under § 28(a), rather than § 127, was a matter committed to the discretion of the prosecutor, taking into account the defendant's circumstances. See Commonwealth v. Johnson, 75 Mass.App.Ct. 903, 905–906 (2009). The defendant's argument that he could only be charged under § 127 is without merit.
Reading § 28(a ) as a whole, it is evident that the intent of the statute is to allow for more severe punishment than that provided under § 127, when an individual damages any part of a motor vehicle by damage or theft.
As discussed during sentencing, the defendant's criminal record included, among other things, two prior convictions for malicious destruction of property. Thus, it is not surprising that the prosecution chose to charge under the statute carrying potentially greater penalties. As it developed, the sentence received by the defendant—one year in a house of correction—would have been appropriate under either statute.
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2. Sufficiency of the evidence. The defendant argues that the Commonwealth failed to prove that the property damaged belonged to someone other than himself. Specifically, he claims that because he purchased the tires, they continued to be his property and he could destroy them if he so desired. The argument fails if only because the evidence, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), supported a finding that the tires were a gift or contribution for the benefit of the household he shared with the girlfriend and her children.
In the alternative, the defendant argues that even if he could be found not to own the tires, the evidence compelled the conclusion that he believed them to be his and therefore did not possess the intent to commit a crime. Again, however, the judge could find otherwise based on the evidence that the defendant admitted to a police officer that he had slashed “her” tires.
Finally, the defendant contends that the entire vehicle was jointly owned by him and his girlfriend, and, therefore, he did not damage the property of another. Yet again, however, the argument is at odds with the evidence. Although the girlfriend testified that the couple “shared” everything, including the vehicle, there was no evidence that the defendant had any ownership interest in it. To the contrary, the evidence was uncontroverted that the vehicle owner was the girlfriend—a fact that was acknowledged by defense counsel during the trial. Furthermore, even if the couple had jointly owned the vehicle, it still would have been the property of the girlfriend as well as the property of the defendant. Thus, the vehicle still could be found by a fact-finder to be property of another for purposes of criminal liability for inflicting malicious damage.
Judgment affirmed.