Theft Crimes

Published on: November 8, 2018

SJC Reverses Revocation of Defendant’s Probation Pursuant to Commonwealth v. Henry

The Appeals Court recently issued a decision in Commonwealth v. Bruno-O’Leary, reversing the revocation of the defendant’s probation because the judge “did not sufficiently consider [the defendant’s] financial resources and obligations before deciding to find her in violation.”

The background was as follows. In 2009, the defendant pleaded guilty to a single count of larceny over $250. “The plea judge sentenced her to a suspended house of correction term of two … years, with a five-year probationary period, and ordered the defendant to pay $98,000 in restitution.” Over the course of her probationary period, “[t]he probation department issued the defendant several violation notices …, primarily for failure to make restitution payments.” At three different junctures during the probationary period, the judge extended the defendant’s probation. “At the final probation revocation hearing held [in] 2016, the defendant stated that she could no longer afford the $300 monthly restitution payments…. Her testimony, supplemented by [an] affidavit …, showed that she and her two children received total monthly Social Security disability benefits of $2,087; she also received $324 per month in food stamps. She was unemployed and actively searching for work, which her felony conviction made difficult…. Her husband, who had been receiving workers’ compensation payments since September, 2015, had lost his job in January, 2016. Neither the defendant nor her husband had any retirement savings, bank accounts, or stocks…. As to expenses, the family rented a three-bedroom house for $1,695 per month. In order to pay the $1,600 heating oil bill for the winter, they had not paid the electric bill and owed $1,400. The defendant and her husband paid $105 per month for … cell phone service.” In response to this information, “the judge said that he simply did not believe” the defendant’s explanations as to why she was unable to make her monthly restitution payments. “Concluding that the defendant ‘made very little effort over the past seven years to make this good,’ the judge revoked the defendant’s probation and ordered [that she] serve the balance of her suspended sentence.” The defendant appealed.

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Published on: September 25, 2017

SJC Rules that Search of Images on Digital Camera Exceeds Scope of Inventory

By Daniel Cappetta

In Commonwealth v. Mauricio, the SJC reversed the denial of a motion to suppress images retrieved by the police during a warrantless search of a digital camera that was seized from the defendant’s person.

The background was as follows. A police officer (Collins) “received a report that two ‘suspicious parties’ were seen running out of the side door of a residence on Downing Drive in Taunton…. Shortly thereafter, Collins located two individuals nearby largely matching the … descriptions” given in the report. One of the individuals “was identified as the defendant…. Collins pat frisked the defendant and searched his backpack. Inside the backpack, Collins found … [a] digital camera,” a ring, and other items. The defendant was arrested. The evidence officer for the police department (Detective Treacy) “conducted an inventory search of the defendant’s backpack. Believing the camera to have been stolen, Treacy … turned the camera on and viewed the digital images it contained in the hope of identifying its ‘true’ owner. In doing so, Treacy came across an image of [the defendant] with firearms.” Treacy showed the image to a fellow detective who “had been investigating a housebreak on Plain Street in Taunton where two firearms and jewelry had been reported stolen. [The other detective,] suspecting that the firearms in the digital image[] matched the firearms stolen from the Plain Street residence, contacted the homeowner and showed him a printed photograph of … the digital image[]…. [T]he homeowner confirmed that the firearms and the other items in the photograph were taken from his home during the break-in.” After the issuance of indictments against the defendant for carrying a firearm without a license and receiving stolen property with a value in excess of $250, the defendant filed two motions to suppress, which were denied. In his first motion, the defendant sought to suppress the physical evidence that was seized from his backpack by the police without a warrant. The judge denied the motion on the ground that “the contents of the backpack would [inevitably] have been discovered during a later search incident to arrest.” In his second motion, the defendant sought “to suppress the images discovered as the result of the warrantless search of the digital camera.” “The judge denied [that] motion on the ground that the viewing of the digital images was part of a valid inventory search.” At trial, the defendant was convicted of both of the charged offenses. “On appeal, [he] argue[d] that the judge wrongly denied the motion to suppress the images recovered from the warrantless search of the digital camera because,” in the defendant’s view, “the search did not fall within the purview of the search incident to arrest exception to the warrant requirement and exceeded the scope of a valid inventory search.” Continue reading →

Published on: July 25, 2016

Man Arrested for Stealing Leaf Blower from Framingham Yard

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man stole a $600 leaf blower this past month. The article states that at approximately 12:45pm on a recent Monday, the alleged victim called the police and reported that a man had just stolen his leaf blower. He indicated that the item was taken from his front yard, located on Swanson Street. According to the alleged victim, the man who took the leaf blower then drove of off in a U-Haul. Police responded to the area, located a U-Haul truck matching the alleged victim’s description, and pulled over the driver. The driver, who was later identified as the defendant in this case, denied stealing the item and told officers that he believed that the leaf blower was his. The defendant was subsequently charged with larceny over $250 and driving with a suspended license.

For the Commonwealth to obtain a conviction against the defendant for larceny over $250, under G. L. c. 266, § 30, it would have to prove the following beyond a reasonable doubt: (1) that the defendant took and carried away property; (2) that the property was owned or possessed by someone other than the defendant; (3) that the defendant did so with the intent to deprive that person of the property permanently; and (4) that the value of the property exceeded $250. An honest and reasonable belief that the property belonged to the defendant is a legitimate defense to the charges. Specifically, if the defendant took the leaf blower in an honest and reasonable belief that he had a legal right to it, then he cannot be convicted of the charge (even if that belief was in fact mistaken) because he lacked the intent to steal. Continue reading →

Published on: April 5, 2016

Men Arrested in Marlborough for Alleged Robbery

By Daniel Cappetta

According to an article in the MetroWest Daily News, three men were arrested earlier this week and charged with robbery in Marlborough. The article states that the three defendants met the alleged victim outside a Burger King for the purpose of buying marijuana from him. When the alleged victim presented the drugs, the three defendants reportedly reached into their pockets and pretended to have weapons. One of the defendants then reportedly grabbed the marijuana from the alleged victim while the other two defendants allegedly pushed him and attempted to steal his cellular telephone. The defendants then reportedly drove off in a silver vehicle. The alleged victim called the police and provided them with a description of the vehicle and the license plate number. Officers stopped the car a short distance away. Inside the vehicle, the officers found a bag of marijuana. Following the stop, the alleged victim identified the three men in the car as the people that robbed him. The driver was charged with unarmed robbery, use of a motor vehicle without authority, and conspiracy to violate the drug laws. The other two defendants were charged with unarmed robbery, assault and battery, and conspiracy to violate the drug laws.

The evidence against the defendants appears to be strong at first glance. However, the case ultimately hinges on the alleged victim’s testimony – he is the only witness who will be able to testify to what happened in the parking lot – and there appear to be two potential problems with calling him as a witness. Continue reading →

Published on: January 5, 2016

Woburn Woman Arrested for Shoplifting, Drugs

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Woburn woman was arrested on larceny and drug charges this past week at the Marshalls located at Shoppers World. The store security officers were allegedly familiar with the woman because she had been involved in thefts at both Marshalls and TJ Maxx on various dates in November of this year. These thefts reportedly consisted of the woman taking several pairs of jeans from the shelves and bringing them into the dressing room. Once in the dressing room, the woman would reportedly remove the security tags and bring the items to the help desk to return them. She allegedly used the gift cards that she got for the returns to purchase other items in the store. According to the article, the woman got more than $1,000 worth of gift cards. Police officers reportedly identified the woman from surveillance footage and obtained a warrant for her arrest. When the woman returned to Marshalls after the issuance of the warrant, store security alerted police, who then came to the store to make the arrest. After arriving, police reportedly confronted the woman and asked for her name, which she provided. When the officers told her that there was a warrant for her arrest, the woman allegedly claimed that the warrant was for her sister, not her. The woman then reportedly attempted to give a different name but was ultimately arrested. While effectuating the arrest, the woman reportedly resisted, flailing her arms. She also allegedly dropped a small plastic bag on the ground and attempted to kick it away. The officers recovered the bag and found that it contained a substance that they believed to be heroin. The officers also found two additional bags of what they believed to be heroin in the woman’s purse, as well as $500 in cash. As a result, the woman was charge with possession with intent to distribute heroin, resisting arrest, and five counts of larceny under $250.

Although the woman is facing serious charges, she does appear to have at least some defenses – specifically, she may well have an argument that she did not have the requisite intent to sell the drugs. To prove the woman guilty of possession with intent to distribute under G. L. c. 94C § 32, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the substance in question was in fact heroin; (2) that the defendant possessed some perceptible amount of that heroin with the intent to distribute it to another person; and (3) that the defendant did so knowingly or intentionally. Continue reading →

Published on: December 28, 2014

Framingham Man Allegedly Robs Former Employer

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man robbed a Sunoco station in Wayland this past week. The article states that the man was previously employed at the gas station and believed that he was owed back pay. Presumably as a result of this belief, he walked into the gas station store and seized a number of money orders. He then left the station and entered an Acura. Following the alleged theft, surveillance footage was obtained and the man was identified as the alleged culprit. There is no indication that he displayed any weapons at the time that he took the money orders. One day after the theft, the police arrested the man and found heroin on his person. He was subsequently charged with possession of heroin and unarmed robbery.

To prove that the man committed the offense of unarmed robbery under G. L. c. 265, § 19, the Commonwealth would have to prove the following elements beyond a reasonable doubt: (1) that the man robbed, stole, or took property; (2) that the property belonged to someone else; (3) that the man had the intent to permanently deprive that person of the property; and (4) that the taking was done by force and violence or by assault and putting the person in fear.

While the man may have a difficult time defending against the possession of heroin charge, he does appear to have at least two potential defenses to the unarmed robbery offense. First, there is no indication that the man used any force or violence to take the money orders – to the contrary, it appears that he simply grabbed them and left the store. Therefore, it seems as though the Commonwealth will not be able to establish the fourth element of the offense. Continue reading →

Published on: October 17, 2014

Women in Framingham Charged with Separate Assaults Against Each Other

By Daniel Cappetta

According to an article in the MetroWest Daily News, two women in Framingham were recently arrested for separate assaults against each other. One of the women called police and reported that her ex-girlfriend had assaulted her at her home and stolen several items. A warrant was issued for the ex’s arrested, but the police were unable to locate her at the time. Several days later, the police were called to the ex’s apartment for a report of a loud argument between two women. When the police arrived, they found both the woman and her ex. Police arrested the ex on the existing arrest warrant, which charged her with one count of larceny and two counts of assault and battery. When she got to the police station, however, the ex told police that the woman had come to her house and punched her in the face. Following these allegations, the police arrested the woman on one count of assault and battery.

Whether one or both of the women is telling the truth, it is unlikely that the Commonwealth will be able to successfully prosecute either of them. The women are considered cross-complainants. In other words, they are both charged as defendants in the alleged incidents, but are also the alleged victims. Prosecuting cross-complaints can be a somewhat complicated process because there are potential Fifth Amendment issues for both of the involved parties. Continue reading →

Published on: September 2, 2014

Man Charged with Pawning Stolen Jewelry in Framingham

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man from Worcester allegedly stole necklaces and a ring from his ex-girlfriend’s Framingham home and sold them to a local jewelry store. The investigation began in May when the mans ex went to the police station and reported that some of her jewelry was missing. She stated that she thought her ex boyfriend took the jewelry. The article does not include why she believed this to be the case, or what, if any, information she had to support her conclusion at the time that the allegations were made. The police then began checking local jewelry stores and apparently discovered that the man accused had sold a gold necklace and ring to Stardust Jewelers, located on Route 9, on March 30^th for $41. The store provided photographs of the jewelry and the ex identified the items as hers. After she identified the jewelry as hers, the police then returned to the store and asked the store to return the items. The store, however, had already melted the necklace and ring down. At some point after that, the ex told either the police or the district attorney’s office that she did not want the police to prosecute him for the purported theft, but police sought charges anyway and he was arraigned on one count of receiving stolen property over $250. For the Commonwealth to convict him of receiving stolen property over $250 under G. L. c. 266, § 60, it would have to prove the following beyond a reasonable doubt: (1) that the property in question was in fact stolen; (2) that he knew that the property had been stolen; (3) that he knowingly had the stolen property in his possession; and (4) the total value of the stolen property exceeded $250. As to the first element, the Commonwealth must establish that someone had taken the property and carried it away without the right to do so, and without the consent of the owner, while intending to permanently deprive the owner of the property. The Commonwealth is not required to prove who stole the property. As to the second element, the Commonwealth must prove beyond a reasonable doubt that he knew that the property was stolen, or at least believed that it was stolen – it is not sufficient to simply prove that a reasonable person in his position would have known or believed the property to be stolen. As to the third element, the Commonwealth must show that he “received” the property – specifically that he knowingly took custody or control of it. Continue reading →

Published on: December 3, 2013

Man Charged with Theft of Brother’s Vodka and Car in Natick

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man broke into his brother’s Natick home and stole a bottle of vodka. He also reportedly took his brother’s jacket, along with the car keys in the jacket pocket, and then left in his brother’s car. His brother woke up to find the car gone and reported it stolen. When police showed up at the brother’s house to take the report, the defendant drove by in the car and the police pulled him over and arrested him. Despite what appears to mostly be a lapse in judgment fueled by alcohol, the defendant was charged with: (1) unarmed burglary; (2) larceny of property worth more than $250; (3) using a vehicle without authority; (4) driving with a suspended license; and (5) possession of an open container of liquor while driving. At the arraignment, the prosecutor stated that “whether [the defendant] intended to steal the car or it was just happenstance [wa]s not known.”
While the defendant may face challenges defending some of the misdemeanor offenses, such as use without authority, driving with a suspended license, and possession of an open container, it appears that he has a strong defense to the two felony charges: burglary and larceny over $250. To prove that the defendant is guilty of burglary under G. L. c. 266, § 15, the Commonwealth would have to prove beyond a reasonable doubt that (1) the defendant broke into the house; (2) entered the house; (3) someone lived in the house; (4) the entry was at night; (5) the defendant entered the house with the intended to commit a felony; (6) he was not armed; and (7) he did not assault any person lawfully in the house. To prove that the defendant is guilty of larceny over $250 under G. L. c. 266, § 30, the Commonwealth would have to prove beyond a reasonable doubt that: (1) the defendant took; (2) the property of another; (3) with the intent to permanently deprive that person of the property; and (4) that monetary value of the property was $250 or more.

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Published on: September 1, 2013

Framingham Man Charged with Armed Robbery and Assault and Battery

By Daniel Cappetta

Sara Mulkeen wrote a recent article in the MetroWest Daily News regarding an alleged armed robbery in the area. A 44 year old Framingham man was arrested on the night of Saturday, August 3rd, after he allegedly held a knife to a man’s throat and stole $200 from him. The alleged victim told police that he was walking at approximately 8:00 p.m. on Saturday evening when he noticed a man following closely behind him on a bicycle. He reportedly recognized the man as his daughter’s boyfriend. He alleges that the defendant then stopped, grabbed him by his shirt, and held a knife to his neck while demanding money. He reportedly told the alleged victim that he wanted all of his money or he would kill him. The alleged victim then gave him $200 from his pocket, at which point the defendant allegedly fled on a red bicycle. Police reportedly showed the alleged victim a photo array of possible suspects, and the alleged victim reportedly identified the defendant as his attacker.

The defendant was later arrested at his home and charged with armed robbery and assault and battery with a dangerous weapon. When police arrested the defendant, he reportedly told officers that the alleged victim made the whole story up because he does not want the defendant dating his daughter. The defendant was scheduled to be arraigned Monday, August 5th in Framingham District Court.

Either the defendant or the alleged victim is telling the police a false statement. Either way, the situation is less than ideal for the man who is being dishonest. The defendant is facing felony charges that could result in prison time. In order to prevail on the armed robbery charge against the defendant, prosecutors will have to prove that the defendant was armed with a dangerous weapon, which is any weapon that can cause serious injury. The prosecution must also prove that the defendant put the victim in fear or caused harm to them by force. Third, they must prove that the defendant took the alleged victim’s property with the intent to deprive him of it permanently. Finally, the prosecution must prove that the defendant actually took control of the alleged victim’s property. To prove with assault and battery with a dangerous weapon charge, the prosecution must prove that the defendant touched the alleged victim without having any right or excuse to do so, that the defendant intended to touch the alleged victim, and that the touching was done with a dangerous weapon.

Clearly, the defendant is facing serious legal trouble due to the accusations against him. However, if the alleged victim filed a false police report, he could face serious penalties. Ultimately, the evidence and the credibility of any statements to the police will likely determine what the police and prosecutors do in this case. Additionally, courts exist to sort out situations like this one where the truth is not readily apparent.

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