Opinion
16-P-212
02-01-2017
COMMONWEALTH v. Michael MCCULLOUGH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of possession of a burglarious instrument (a crowbar). G. L. c. 266, § 49. On appeal, the defendant argues that the Commonwealth presented insufficient evidence to support his conviction. We affirm.
The defendant also argues that the Commonwealth's closing argument contained improper statements. All but one of the statements the defendant lists as improper (that the defendant used the crowbar to break in, that his story was unbelievable, and that he called the police because he "got caught and he wanted an out") were reasonable inferences from the evidence presented at trial. See Commonwealth v. Lewis , 465 Mass. 119, 129 (2013). There was also no burden shifting. We do, however, agree that the statement, "if [the defendant] wasn't going to get what he wanted property-wise, he was going to try to hurt the people that were in there" was improper; however, as the statement was tangential to the burglarious instrument charge and the defendant was acquitted of breaking and entering, we conclude the statement was not prejudicial. See Commonwealth v. Rosario , 430 Mass. 505, 515 (1999).
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Background . The jury were warranted in finding the following. Yahaira Tejada leased a house at 38 Vaughan Avenue in Boston. The house was a two-story, six-bedroom building, with a front door that required visitors to "buzz in" to gain entry. On the morning of December 5, 2014, Tejada's brother-in-law Noel Pagan came to her house after a night shift to sleep in one of the first-floor bedrooms. Before going to sleep, Pagan shut and locked the bedroom door.
At around 3:00 P.M. that day, Pagan awoke to the sound of someone "fidgeting" with his bedroom door. Pagan got out of bed, at which point the door burst open and Pagan saw the defendant, whom he had never seen before, standing in the doorway wearing dark clothes, a trench coat, and black gloves. The defendant had a long screwdriver in one hand and was carrying two bags. When the defendant saw Pagan, he attempted to poke Pagan in the chest with the screwdriver. Pagan grabbed a baseball bat from behind the bedroom door and struck the defendant until the defendant was out of the home. Tejada, who was upstairs, heard screaming and ran downstairs, where she witnessed Pagan swinging the bat at the defendant. Tejada testified that she had also never seen the defendant before. Once out of the house, the defendant ran down the street, dropping one of his bags as he ran. Pagan and Tejada walked outside and noticed that the front door, which had been intact when they had entered the building earlier that day, now had a piece broken off from the frame.
When police arrived, they observed a spot on the front door frame where something had been "ripped away," as well as "pry marks" on the door to the bedroom where Pagan had been sleeping. Police also observed a pair of black gloves in the first-floor hallway and a black bag with a rusty crowbar sticking out of it on the sidewalk just outside the residence. Also inside the bag were, among other things, a screwdriver and an identification bearing the defendant's name.
That same day, other officers responded to a call from the defendant at 100 Washington Street, about a five-minute walk from 38 Vaughan Avenue. The defendant told the police that when he had gone to 38 Vaughan Avenue to collect money, he was hit in the head with a baseball bat. When asked from whom he was picking up money, and why, the defendant replied that he didn't know. He denied breaking into the house. Police arrested the defendant and brought Tejada to 100 Washington Street, where she identified him as the man she had seen in her house earlier that day.
Discussion . In reviewing the sufficiency of the evidence, we consider "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Powell , 459 Mass. 572, 579 (2011), quoting from Commonwealth v. Latimore , 378 Mass. 671, 677 (1979).
The elements of possession of a burglarious instrument are (1) possession of "an engine, machine tool, or implement"; (2) "adapted and designed for cutting through, forcing or breaking open a building"; (3) "in order to steal therefrom money or property, or to commit any other crime"; (4) "knowing that [the tool was] adapted and designed for [this] purpose"; (5) "with intent to use or employ or allow [the tool] to be used or employed for such purpose." G. L. c. 266, § 49, as appearing in St. 1966, c. 269, § 1. Ordinary tools may be characterized as burglarious instruments if the Commonwealth can prove that the defendant intended to use them for burglarious purposes. See Commonwealth v. Dellinger , 10 Mass. App. Ct. 549, 561 (1980). The intent "must appear clearly from the circumstances in which they are found." Ibid .
The defendant argues that his crowbar was an ordinary tool, not a burglarious instrument, because there was no direct evidence that he even took the crowbar out of his bag at Tejada's house, much less used it to break in. However, the Commonwealth need not have proved that the defendant actually used the crowbar—only that he intended to. See Commonwealth v. Jones , 355 Mass. 170, 176-177 (1969) (intent to use screwdriver and kitchen knife to break in could be reasonably inferred from circumstances, even though there was "no evidence that tools were in fact so used"). In Commonwealth v. Porter , 70 Mass. App. Ct. 901, 902 (2007), this court held that it was clear the defendant intended to use a pair of wire cutters to break into a home, as the wire cutters were found in the exact location where the defendant was caught breaking in, and both residents of the home testified that the cutters had not been there earlier that evening. In this case, the defendant was found breaking into Pagan's bedroom wearing dark clothing and black gloves, and carrying a screwdriver, and dropped his bag containing the crowbar in front of Tejada's house as he ran away. Moreover, several witnesses testified that the front door looked as though part of it had been "ripped away," and both Pagan and Tejada testified that the door had been undamaged earlier in the day. The evidence was sufficient to support the defendant's conviction.
Judgment affirmed .