Opinion
No. 12–P–1183.
2013-05-16
COMMONWEALTH v. Gail R. SMITH.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the conclusion of a bench trial, a judge of the District Court found the defendant, Gail R. Smith, guilty of larceny by stealing. G.L. c. 266, § 30(1). Specifically, the Commonwealth charged that the defendant had shoplifted groceries of a value of more than $500 from a supermarket. On appeal, the defendant argues that the evidence was insufficient to support a finding of guilty beyond a reasonable doubt. For the following reasons, we affirm the conviction.
Analysis. 1. Standard of review. The elements of larceny by stealing are (1) the unlawful taking and (2) carrying away (asportation) (3) of personal property of another (4) with the specific intent to deprive the person of the property permanently. See Commonwealth v. Mills, 436 Mass. 387, 394 (2002); Commonwealth v. Vickers, 60 Mass.App.Ct. 24, 27 (2003). In this instance, the defendant argues that the Commonwealth failed to submit sufficient evidence of the elements of (a) asportation and (b) intent to deprive permanently. On appeal, the familiar and settled standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). In the measurement of the sufficiency of the evidence, “we do not weigh the supporting evidence against conflicting evidence, nor do we consider the credibility of the witnesses.” Commonwealth v. Semedo, 456 Mass. 1, 8 (2010). The examination looks “only to the evidence presented by the Commonwealth, and disregard[s] any contrary evidence presented by the defendant.” Commonwealth v. Platt, 440 Mass. 396, 400–401 (2003). The reviewing court must resolve all issues of credibility in favor of the Commonwealth. Commonwealth v. James, 424 Mass. 770, 785 (1997).
2. Evidence. (a) Asportation. In shoplifting cases, evidence of (i) concealment of goods, and (ii) physical removal of them will support a finding of asportation. Here, the defendant's pattern of bagging various items without applying the portable scanner to them before placement in her shopping cart indicated concealment. That process permitted a reasonable inference of concealment or design “to prevent discovery or identification of the merchandise because that conduct withdrew the [items] from the ordinary view of store patrons and personnel.” Commonwealth v. Balboni, 26 Mass.App.Ct. 750, 752 (1989).
Other conduct allowed a finding of physical removal. Specifically, the defendant steered her laden shopping cart past the checkout registers, through the exit doors, and onto the exterior sidewalk. Commonwealth v. Davis, 41 Mass.App.Ct. 901, 901 (1996) (shoplifting case).
(b) Intent. The same evidence of (i) concealment, and (ii) physical removal, as cited above, supported a finding of intent to deprive permanently. In addition, when police confronted the defendant outside the store and asked her about the status of the merchandise, she at first maintained that she had applied one of the portable scanners to the items during her passage through the aisles .
That misrepresentation to the police constituted evidence of consciousness of guilt. See Commonwealth v. Basch, 386 Mass. 620, 625 (1982); Commonwealth v. Lavalley, 410 Mass. 641, 649–650 (1991); Commonwealth v. Auclair, 444 Mass. 348, 360–361 (2005). As those cases indicate, in combination with other evidence, such behavior may be indicative of the actor's awareness of intentional wrongdoing.
An employee of the supermarket testified that he followed the defendant in the store as she put items in her shopping cart and that he did not see her using a scanner. The defendant gave a different explanation of her actions when she testified at trial.
Judgment affirmed.