Opinion
10-P-2189
03-09-2012
COMMONWEALTH v. CHESTER STEVENSON.
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
On February 21, 2008, the defendant, after a jury trial, was found guilty of three counts of receiving stolen property having a value greater than $250, in violation of G. L. c. 266, § 60. The charges stem from the defendant's arrest while in possession of a flatscreen television (TV), a global positioning satellite device (GPS), and a hand held video camcorder (camcorder) with videotapes. The defendant appeals the convictions.
On appeal the defendant claims that (1) the evidence at trial was insufficient to establish that the stolen property had a value greater than $250 for all three items, (2) the judge's failure to instruct the jury on the meaning of the term 'value of property' deprived the defendant of his State and Federal due process rights and created a substantial risk of a miscarriage of justice, and (3) the Commonwealth introduced inadmissible evidence to prove that the camcorder was stolen, or alternatively defense counsel's failure to object to said evidence constituted ineffective assistance of counsel, thus creating a substantial risk of a miscarriage of justice.
We reverse and remand the conviction with regard to the camcorder to the District Court, where a finding of guilty of the lesser included offense of receiving stolen property worth less than $250 is to enter. The defendant is to be sentenced pursuant to those provisions of G. L. c. 266, § 60, that pertain to the misdemeanor offense. We affirm the felony convictions on receipt of the stolen TV and GPS.
Discussion. 1. Sufficiency. In considering a claim of insufficient evidence, the question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). 'In order to be guilty of the crime of receiving stolen goods, (1) one must buy, receive or aid in the concealment of property which has been stolen or embezzled, (2) knowing it to have been stolen.' Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 664 (2002).
Further, '[t]he value of the stolen property determines the punishable offense under G. L. c. 266, § 60.' Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 467 (1989). The Commonwealth bears the burden of proving the value of the stolen property beyond a reasonable doubt. See Commonwealth v. Beale, 434 Mass. 1024, 1025 (2001). Where the value of the stolen property exceeds $250, the Legislature has provided for 'imprisonment in the state prison for not more than five years.' G. L. c. 266, § 60. By contrast, the maximum punishment for receiving stolen property with a value of $250 or less is a sentence to a house of correction for two-and-a half years. Ibid.
Here, the evidence as to the value of the flatscreen television and the GPS device was sufficient for the jury to have found, beyond a reasonable doubt, that each object was worth more than $250. The owner of the television testified that he had purchased it for $400 two years earlier, and described its condition at the time of the theft. The owner of the GPS device testified that he had purchased the GPS for over $500, and described its condition at the time of the theft. The jury was shown photographs of both the television and the GPS device. This evidence enabled the jury to use their common sense to make a determination of value with regard to both the television and the GPS device. See Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 643 (2003) (in a malicious destruction of property context, jury permitted to use their common sense in valuation).
With regard to the value of the camcorder, we conclude that a single photograph, without any other evidence, does not constitute sufficient objective indicia of the value of the camcorder for the jury to properly find beyond a reasonable doubt that it was worth more than $250. See Beale, supra. The Commonwealth therefore failed to prove the necessary element of the crime charged that the camcorder was worth more than $250. See G. L. c. 266, § 60.
In such a case, when the Commonwealth has 'proved all other elements of the offense beyond a reasonable doubt' a finding of guilty of the lesser included offense of receiving stolen property with a value of less than $250 must enter on the charge for the receipt of the camcorder. See Commonwealth v. Deberry, 441 Mass. 211, 224 (2004) (malicious destruction of property context); accord Commonwealth v. Hill, 57 Mass. App. Ct. 240, 248 (2003).
2. Jury Charge. With regard to the jury instruction claim, as defense counsel did not object at trial, we review the claimed error for a 'substantial risk of a miscarriage of justice.' Commonwealth v. Mercado, 456 Mass. 198, 205 n.14 (2010). Here, there was no error in the jury instruction. The instruction as given correctly described the applicable law, and adequately instructed the jury on each element of the charge under G. L. c. 266, § 60. The judge informed the jury that they must determine 'as to each indictment whether the stolen property was, or if there were multiple items charged in a particular indictment, altogether worth more than $250.' The law in Massachusetts does not require any more specific instruction. At a minimum the jury 'must be instructed that they must determine the value of the property so destroyed or injured.' Commonwealth v. Walters, 12 Mass. App. Ct. 389, 394 (1981). The judge's instruction met this threshold.
A better practice for a valuation instruction may be to include the following text: 'You may use your general knowledge of evaluating the value of a piece of property; it is not required that you have any expert evidence of its value.' Massachusetts Superior Court Criminal Practice Jury Instructions § 2.38 (MCLE 1st Supp. 2003). Though an inclusion of this sentence would have been preferable, the instruction as given was not deficient.
3. Hearsay. With regard to the defendant's argument that the Commonwealth introduced inadmissible evidence to prove that the camcorder was stolen, thus creating a substantial risk of a miscarriage of justice, we conclude that although the testimony was erroneously admitted, the error did not rise to the level of a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967); Commonwealth v. Stewart, 398 Mass. 535, 543 (1986); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999); Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 174 n.10 (2011).
For this reason, the defendant's argument that he was denied effective assistance of counsel also fails. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
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Conclusion. For the foregoing reasons, the judgments with regard to the TV and the GPS are affirmed. The defendant's felony conviction with regard to the camcorder is reversed, the verdict is set aside, and the charge is remanded to the District Court, where a finding of guilty of the lesser included offense of receiving stolen property worth less than $250 is to enter. The defendant is to be sentenced pursuant to those provisions of G. L. c. 266, § 60, that pertain to the misdemeanor offense.
So ordered.
By the Court (Berry, Trainor & Hanlon, JJ.),