Opinion
No. 12–P–1514.
2013-07-1
COMMONWEALTH v. Gary SMITH.
By the Court (MILKEY, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order by a judge of the Superior Court finding him in violation of his probation. On appeal, the defendant argues that at the probation violation hearing there was insufficient evidence to justify the judge's decision. We affirm.
Background. On January 23, 2008, after pleading guilty to two counts of unarmed robbery, the defendant was sentenced to a term of incarceration followed by a term of probation. After his release from incarceration, the defendant was served with a notice of probation violations, which alleged that he committed the new offenses of operating a motor vehicle with a suspended license and larceny in an amount more than $250. The notice also alleged the defendant failed to: (1) report to the probation office as ordered; (2) report a change of address; and (3) pay a victim witness fee. A hearing was held on these allegations on September 29 and October 28, 2010. After the hearing, the judge found that there was insufficient evidence to prove the defendant failed to report to the probation office as required, and failed notify the probation department of a change of address. Additionally, the judge found the defendant was not in violation for failure to pay the victim witness fee. The judge found, however, that the defendant violated the terms of his probation by committing the new offenses of larceny in an amount more than $250 and operating a motor vehicle with a suspended license. Based upon the evidence presented at the hearing, the judge was warranted in finding the following facts. The larceny victim had contact with the defendant during his incarceration. After his release, the victim only saw the defendant when he needed money. Sometime in the late summer or early fall of 2009, the victim was hospitalized at the Boston University Medical Center. When admitted, she gave her jewelry and $300 in cash to hospital personnel for safekeeping. While at the hospital, the defendant visited the victim and told her he needed $200 in order for him to put four tires on her vehicle. The defendant had her sign a document that would authorize the release of her valuables to him. She authorized the defendant to take $200. Upon being discharged from the hospital, the victim realized that the defendant had taken all of her jewelry, as well as the $300. She eventually confronted the defendant as to the whereabouts of her jewelry, and he admitted that he had pawned the jewelry.
As to the offense of operating after suspension, the judge noted that the offense “was not particularly at issue in this case.”
The victim testified that the defendant did not put tires on her car.
From the victim's testimony, it was unclear as to when she was hospitalized. She reported the theft to the police on October 13, 2009. She testified on cross-examination that she was hospitalized sometime after her birthday on September 19. However, on redirect examination, the victim testified that she reported the theft to the police months after her discharge from the hospital.
If the victim was hospitalized after her birthday, evidence that the defendant pawned some of her jewelry in August would have been irrelevant. It is clear, however, that the judge found that the victim was hospitalized in August.
A pawn shop owner in Lynn identified the defendant as the same person who pawned several items of jewelry on August 31, 2009. The owner testified that if the pawned goods were not redeemed within four months, they became property of the pawn shop and were subject to sale. The jewelry never was redeemed.
The report listed the following items: 10kt yg 8? bracelet; 10kt yg 20? chain; 10kt yg cross; 10kt yg crucifix; 10kt yg heart earrings; a 10kt yg dolphin charm; 10kt yg leaf earring. The pawned items generally conform to the description of the jewelry testified to by the victim.
Discussion. On appeal, the defendant argues the judge erred in finding a violation of probation because there was insufficient evidence that (1) the defendant intended to permanently deprive the victim of her property, and (2) established the property value exceeded $250. Neither argument is persuasive.
At a hearing on an alleged violation of probation, the allegations must be proven by a preponderance of the evidence. Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006). We conclude that this burden of proof was satisfied.
An element of the crime of larceny in an amount more than $250 is the specific intent to permanently deprive the owner of her property. Commonwealth v. Vickers, 60 Mass.App.Ct. 24, 27 (2003). This element seldom can be proven through direct evidence. The defendant's state of mind, however, may be shown through circumstantial evidence, which may be sufficient to prove specific intent. Here, there was evidence that the defendant took not only the $200 in cash to which the victim gave tacit approval, but that he also took an additional $100, as well as her jewelry. The defendant's act of pawning the victim's property, as well as his retention of the $100, was sufficient basis for the judge to conclude, by a preponderance of the evidence, that the defendant intended to permanently deprive the victim of her property.
The defendant's argument that the evidence was insufficient to prove that the stolen property's value exceeded $250 is also unavailing. It is undisputed that the defendant took $100 in cash from the victim. The judge was warranted in concluding from the description of the jewelry contained in a list provided by the pawn shop owner, that the value of the jewelry exceeded $150.
Order revoking probation affirmed.