Opinion
No. 15–P–607.
08-05-2016
COMMONWEALTH v. David M. HILL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, David M. Hill, was convicted after a jury trial of larceny, G.L. c. 266, § 30(1), assault and battery on a police officer, G.L. c. 265, § 13D, and resisting arrest, G.L. c. 268, § 32B. On appeal, he argues that (1) the trial judge erred in denying his motions for required findings of not guilty because the evidence was insufficient as to the larceny and resisting arrest charges, and (2) hearsay evidence was admitted in error and requires reversal. For the reasons that follow, we affirm.
1. Motions for required findings. “In reviewing the defendant's claims, we 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, 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
a. Larceny. “A conviction of larceny under G.L. c. 266, § 30(1), requires the Commonwealth to prove beyond a reasonable doubt an unlawful taking and carrying away of the property of another with the specific intent to deprive the person of the property permanently.” Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015). The defendant argues that the Commonwealth failed to prove the items taken were the property of another.
The jury could have found the following facts. William Punch, a loss prevention officer employed by Sears & Roebuck Company in Dedham was monitoring the sales floor of the department store when he saw the defendant leave the store with a number of clothing items, still with tags, not in bags, and with no visible receipt. Punch called the loss prevention office and described the items he saw in the defendant's possession. He was told that none of the merchandise had been paid for. Punch then followed the defendant out of the store. He called the Dedham police from his cellular telephone as he continued to follow the defendant, who fled across the parking lot.
The evidence at trial was that Punch was located in the “men's department” when he observed the defendant leaving the store “with an armful of merchandise with tags on it [sic ], not in bags” and with no visible receipt. Both parties argued to the jury that this merchandise was clothing.
Although this part of Punch's testimony was erroneously admitted hearsay, see infra, “the constitutional sufficiency of the evidence under Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), is to be measured upon that which was admitted in evidence without regard to the propriety of the admission.” Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 98 (2010). As discussed below, the evidence was sufficient even without this testimony.
The police responded. Officer Barrett saw the defendant running down E Street, without the clothing items. When the defendant saw Officer Barrett, he immediately fled into the back yard of a nearby residence. A short while later, the police apprehended the defendant at the mall, where he was found hiding behind a tractor-trailer.
There was sufficient evidence to prove that the clothing items were the property of another. “It is sufficient if the evidence and the permissible inferences from that evidence are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion that the Commonwealth has established beyond a reasonable doubt that the property belonged to someone other than the defendant.” Commonwealth v. Souza, 397 Mass. 236, 238 (1986) (quotation omitted). The defendant had been seen taking tagged clothing items from inside of a Sears department store and leaving without having paid for them. He had no shopping bag, and no receipt was visible. The defendant fled across the parking lot when Punch followed him out of the store, and he fled again when he first encountered a police officer moments later. “Evidence of flight is generally admissible as some evidence of consciousness of guilt, and consciousness of guilt, together with other evidence, may establish guilt.” Commonwealth v. Camacho, 472 Mass. 587, 596–597 (2015) (quotation and citation omitted). After the police responded, the defendant no longer had the clothing items in his possession. See Commonwealth v. Salerno, 356 Mass. 642, 648 (1970) (taking property without authority and disposing of it shows indifference to whether the owner recovers possession may be evidence of intent to deprive). “Those acts were sufficiently inconsistent with ownership that it was within the province of the jury to conclude that the [clothing items] were the property of another.” Souza, supra at 239.
b. Resisting arrest. The defendant contends that there was insufficient evidence to prove resisting arrest because he did not have the requisite knowledge that the officers intended to arrest him. He argues that he was not informed that he was under arrest when Officer Barrett began chasing him on E Street and, as a matter of law, mere flight from an officer does not establish knowledge. See Commonwealth v. Grant, 71 Mass.App.Ct. 205, 209 (2008).
To obtain a conviction for resisting arrest, the Commonwealth must prove that the defendant knew that he was being arrested when he resisted. See Commonwealth v. Powell, 459 Mass. 572, 579–580 (2011) ; Commonwealth v. Sylvia, 87 Mass.App.Ct. 340, 341–342 (2015). “In considering whether the person detained understood that he or she was under arrest, we consider not what the defendant ... thought, but what a reasonable [person], innocent of any crime, would have thought in the defendant's shoes.” Powell, supra at 580 (quotation omitted).
Viewed in the light most favorable to the Commonwealth, the defendant had stolen goods from a department store. He was pursued by a loss prevention officer, then a uniformed police officer in a marked cruiser immediately following the theft. After he fled from the store personnel and the officer and hid behind a tractor-trailer, uniformed police officers “attempted to place [the defendant] under arrest.” “[H]e fought with [them], and [they] were able to handcuff [the defendant].” Although there was no direct evidence that the police told the defendant that he was under arrest, see Grant, supra, a reasonable person in the defendant's shoes would have known he was under arrest. See Commonwealth v. Lender, 66 Mass.App.Ct. 303, 306 (2006).
Officer Barrett testified that when the defendant fled after spotting him, “I'm assuming I would have yelled for him to stop.” However, there was no evidence that the defendant was ever told that he was under arrest.
2. Hearsay. Punch testified that he called the loss prevention office to determine whether the defendant had paid for clothing items and “was told that none of the merchandise that I had observed and described had been paid for.” The defendant objected on the grounds that what Punch had been told was hearsay. The judge allowed the testimony. On appeal, the defendant contends that the admission of the evidence was error that requires reversal. We agree that the admission of the testimony was error, however it was not prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). There was ample evidence for the jury to infer that the defendant had not paid for the clothing items. The erroneously admitted hearsay evidence was cumulative of other properly admitted evidence, including the fact that the clothes were unbagged and the tags were clearly visible while a receipt was not, and the defendant's flight from the loss prevention officer and police. See Commonwealth v. Bianchi, 435 Mass. 316, 324 (2001). “We are satisfied that the erroneous admission [of hearsay evidence] did not influence the jury, or had but very slight effect.” Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012) (quotation omitted).
Judgments affirmed.