Opinion
No. 12–P–294.
2013-04-22
COMMONWEALTH v. Dana DUDLEY.
By the Court (MEADE, MILKEY & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of unarmed robbery, arguing that he was prejudiced by the judge's failure to give an instruction on the lesser included offense of larceny from a person. However, as the defendant concedes, even on the view most favorable to the defendant, the evidence at trial showed that “the defendant stole the money from [the victim] and, after doing so, physically struggled with [the victim].” Such evidence supports a charge of robbery, not larceny. See Commonwealth v. Rajotte, 23 Mass.App.Ct. 93, 94, 499 N.E.2d 312 (1986) (“A larceny may be converted into a robbery if ... an assault is committed on a person who, having some protective concern for the goods taken, ... interferes with the completion of the theft”). No witness testified that the defendant succeeded in stealing the money and leaving the victim's presence before the struggle occurred. Compare Commonwealth v. Novicki, 324 Mass. 461, 465, 87 N.E.2d 1 (1949). Because no view of the evidence would have supported a conviction of larceny from the person, the judge did not err in denying the defendant's request for an instruction on that crime. See Commonwealth v. LeClair, 445 Mass. 734, 740–741, 840 N.E.2d 510 (2006).
He also was convicted of assault and battery.
Judgments affirmed.