The Boston University Library, Trespass and the MacBook

This post examines an opinion from the Appeals Court of Massachusetts:  Commonwealth v. Bermudez, 2016 WL 1618213 (2016). The court begins the opinion by explaining that

The defendant, Jonathan Bermudez, appeals  from his convictions of trespass, in violation of [Massachusetts General Laws] c. 266, § 120, and larceny over $250, in violation of [Massachusetts General Laws] c. 266, § 30(1). The defendant contends his convictions should be overturned for three main reasons. First, the defendant argues that the judge erred in denying his motion for a required finding of not guilty on the criminal trespass charge. Second, the defendant maintains that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge. Third, the defendant contends that the judge incorrectly instructed the jury on notice for the trespass charge. The convictions stem from the defendant taking a MacBook laptop that was unattended at Boston University's Mugar Library.

Commonwealth v. Bermudez, supra.  The court analyzed Bermudez’s arguments in the order set out above, beginning with the criminal trespass conviction.

It began that analysis by explaining that

[o]ur review of a motion for a required finding of not guilty requires us to ask `whether, viewing the evidence in a light most favorable to the Commonwealth, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (Supreme Judicial Court of Massachusetts 2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (Supreme Judicial Court of Massachusetts 1979). We only consider the `evidence introduced up to the time the Commonwealth rested its case.’ Commonwealth v. Rivera, 460 Mass. 139, 141 (Supreme Judicial Court of Massachusetts 2011). . . .

The defendant argues that the judge erred in denying his motion for a required finding of not guilty for trespass because the Commonwealth failed to prove beyond a reasonable doubt that he was given notice that he was not allowed on `any’ Boston University property. To convict the defendant of trespass, the Commonwealth must prove beyond a reasonable doubt that he `without right enter[ed] or remain[ed] in or upon [Boston University property] . . . after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon.' Massachusetts General Laws c. 266, § 120. At trial, Officer Robert McCarthy (Officer McCarthy), who had previously interacted with the defendant, answered affirmatively when asked, `[D]id you notify [the defendant] that he was not permitted to be on campus on the Boston University Campus or Boston University property?’ In the light most favorable to the Commonwealth, this testimony, if credited by the jury, was sufficient for the jury to find that direct notice was given to the defendant by a person with lawful control over the premises. See ibid. See also Commonwealth v. Molina, 454 Mass. 232, 240 (Supreme Judicial Court of Massachusetts 2009) (`Questions of credibility and weight of testimony are for the jury to decide’).

Commonwealth v. Bermudez, supra (emphasis in the original).

The Appeals Court then took up Bermudez’s larceny conviction, explaining that to

support a conviction of larceny under [Massachusetts General Laws] c. 266, § 30, the Commonwealth is required to prove the ‘unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently.’ Commonwealth v. DiJohnson, 63 Mass. App. Ct. 855, 858 (Appeals Court of Massachusetts 2005), quoting from Commonwealth v. Donovan, 395 Mass. 20, 25–26 (Supreme Judicial Court of Massachusetts 1985). The Commonwealth must also prove, when the defendant is charged with larceny over $250, `that the value of the property in question exceed[s] $250.’ Commonwealth v. DiJohnson, supra. . . 

Commonwealth v. Bermudez, supra. For more on Massachusetts larceny law, see this site. 

The Appeals Court analyzed each issue, in the order outlined above.  As to intent, it noted that Bermudez

argues that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge because the Commonwealth failed to establish the requisite intent. `A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.’ Commonwealth v. Casale, 381 Mass. 167 (Supreme Judicial Court of Massachusetts 1980).
 Here, in the light most favorable to the Commonwealth, the Commonwealth introduced sufficient evidence of the defendant's intent to permanently deprive the owner of his MacBook. This included the defendant `scanning’ the library basement while he sat on the couch for over an hour before he walked over to a recently vacated desk, grabbed the unattended MacBook that was left on the desk, and put it in his backpack. See Commonwealth v. Balboni, 26 Mass. App. Ct. 750, 752 (Appeals Court of Massachusetts 1989) (`As to the element of intent, the circumstances testified to by the officer, particularly the defendant's actions and demeanor in surveying the store, . . . permitted the jury properly to infer that the defendant harbored an intent to steal the merchandise’). Further, when the defendant realized he was being followed by a group of students, he `shoved the laptop at the owner’ and took off running as soon as he exited the library. 

Commonwealth v. Bermudez, supra. 

Having found that the evidence presented at trial established the necessary intent, the court next took up the issue of intent.  It began that analysis by explaining that the

defendant argues that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge because the Commonwealth failed to establish the MacBook's value was over $250. In the crime of malicious destruction of property over $250, we have held that the `jury may apply its own “common sense” to [the] valuation issue.’ Commonwealth v. Muckle, 59 Mass.App.Ct. 631, 642–643 (Appeals Court of Massachusetts 2003). The jury, relying on its own common sense, in the light most favorable to the Commonwealth, could have found that the MacBook was worth more than $250 in its working condition. The judge also clearly instructed that the Commonwealth must prove beyond a reasonable doubt that the value of the MacBook was worth more than $250. See Commonwealth v. Helfant, 398 Mass. 214, 228 (Supreme Judicial Court of Massachusetts 1986) (`The judge's instructions were clear, and we must presume the jury followed them’).

Commonwealth v. Bermudez, supra. 

And in a footnote it appended after the quoted phrase “valuation issue” in the paragraph above, the court explained that the

judge's instruction to the jury provided, in relevant part: `If you determine the Commonwealth has proved beyond a reasonable doubt that the defendant is guilty of larceny, you must also go on to determine whether the laptop that was stolen was worth more than $250 or less than $250. You need to consider that question only if you find the defendant guilty so that I will know which range of sentence as the law permits in this case. So, if your verdict is guilty, you must also indicate on your verdict slip whether or not the Commonwealth has proved beyond a reasonable doubt that the property was worth more than $250. You may use your general knowledge in evaluating the value of (indiscernible) property. It is not required that you have any expert evidence of its value.’

Commonwealth v. Bermudez, supra. 

Regarding jury instructions and the role they play in a jury trial, as Wikipedia explains,

[u]nder the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts. The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true. Put another way, `If you believe A (set of facts), you must find X (verdict). If you believe B (set of facts), you must find Y (verdict).’ Jury instructions can also serve an important role in guiding the jury how to consider certain evidence. Forty-eight states (Texas and West Virginia are the exceptions) have a model set of instructions, usually called `pattern jury instructions’, which provide the framework for the charge to the jury; sometimes, only names and circumstances have to be filled in for a particular case. Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will often be instructed not to draw any negative conclusions from that decision. Many jurisdictions are now instructing jurors not to communicate about the case through social networking services like Facebook and Twitter. . . .

And that brings us to the third issue Bermudez raised on appeal, i.e., that “the judge incorrectly instructed the jury on notice for the trespass charge.” Commonwealth v. Bermudez, supra.  The opinion explains that Bermudez argued, on appeal, that

his conviction on trespass should be vacated because the jury were incorrectly instructed on notice. The portion of the jury instruction relied on by the defendant provides:

`[T]he testimony you've heard and are about to hear about the interaction which allegedly occurred on March 27, 2012 is for your consideration only to determine whether or not the Commonwealth can prove the element of notice in the trespass charge the defendant is facing here today.’

`You may not consider it for any other purpose. You may not consider it in any way in deciding whether the defendant is guilty of the crime charged in this complaint today’ (emphasis added).’

Commonwealth v. Bermudez, supra. 

The court then explains that, on appeal, Bermudez argued that

if the jury considered the evidence of the March 27, 2012, incident to determine notice, then they were actually disregarding the explicit language at the end of that instruction. We disagree. `Error in a charge is determined by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context.’ Commonwealth v. Ortiz, 463 Mass. 402, 419 (Supreme Judicial Court of Massachusetts 2012), quoting from Commonwealth v. Petetabella, 459 Mass. 177, 184 (Supreme Judicial Court of Massachusetts 2011). See Commonwealth v. Oliveira, 445 Mass. 837, 844 (Supreme Judicial Court of Massachusetts 2006) (`Jury instructions must be construed as a whole to prevent isolated misstatements or omissions from constituting reversible error where there is little chance that the jury would have misunderstood the correct import of the charge’). The judge intrinsically corrected his earlier misstatement when he later instructed the jury: `Ladies and gentlemen, testimony about any interaction with the Boston University Police in March, if credited by you, may be considered solely on the limited issues [sic] of notice as to the defendant's right to be on the Boston University property.’ `You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that, if the defendant was on the Boston University property in March of 2013, that the other acts—that he must also have committed these charges.’

Commonwealth v. Bermudez, supra. 

The Appeals Court rather quickly disposed of this argument, explaining that

[t]he jury instruction, when viewed in context, adequately instructed the jury. See Commonwealth v. Torres, 420 Mass. 479, 484 (Supreme Judicial Court of Massachusetts 1995) (`Judges need not deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words’). Moreover, any error in the earlier instruction was unobjected to and did not rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Comtois, 399 Mass. 668, 675–676 (Supreme Judicial Court of Massachusetts 1987).

Commonwealth v. Bermudez, supra. 

The court therefore affirmed Bermudez’s convictions. Commonwealth v. Bermudez, supra.