Opinion
No. 11–P–1737.
2013-02-15
COMMONWEALTH v. Vale C. ZIEGLER.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial in District Court the defendant was convicted of two counts of malicious destruction of property of another over $250, G.L. c. 266, § 127. He was ordered to pay $775 in restitution and placed on probation. On appeal the defendant asserts that his convictions should be overturned because (1) there was no evidence presented during trial to corroborate his confession, (2) there was no evidence admitted to prove that the damage to the snowmobiles exceeded $250, and (3) there was no evidence to support the $775 restitution order.
Corroboration rule. The defendant asserts that there was insufficient evidence at trial to support his convictions because there was no evidence presented, except for his own admission, that a crime was committed. “The corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary.... The corroborating evidence need not point to the accused's identity as the doer of the crime.” Commonwealth v. Forde, 392 Mass. 453, 458 (1984). “The corroboration required ... may be quite minimal.” Commonwealth v. Villalta–Duarte, 55 Mass.App.Ct. 821, 825–826 (2002). During trial the judge heard testimony from Officer Susan Rathbun.
Rathbun testified that she received a radio report of a fire involving two snowmobiles on the defendant's property. Upon arriving at the defendant's property, Rathbun was told by the defendant that he had caused the snowmobiles to collide into each other so that they would ignite. Rathbun observed fire department personnel, the defendant, and two snowmobiles that were emitting smoke in the defendant's driveway. Mike Senior testified that he was the owner of the snowmobiles that were damaged. This evidence sufficiently corroborated the “corpus delicti” of the offense, namely that the snowmobiles had been damaged by someone other than the owner.
Due to a malfunction in the recording equipment, no transcript exists for the two-hour bench trial that took place on June 9, 2011. These facts are drawn from the parties' recreation of the record, to which the defendant has stipulated.
See Commonwealth v. Forde, supra (defining “corpus delicti” as “merely the fact of the loss or injury sustained”).
The defendant cites several cases from other States in which courts held that the “corpus delicti” of arson required some independent proof that the fire was started deliberately. While our cases have not imposed such a requirement, it is nevertheless satisfied here by the permissible inference that two snowmobiles are extremely unlikely to ignite spontaneously at the same time.
Malicious destruction of property over $250. The Commonwealth concedes that there was insufficient evidence admitted during trial to establish that the cost to repair or replace the damaged snowmobiles exceeded $250. Accordingly, the convictions of malicious destruction of property over $250 are reversed, and a finding of guilty on two counts of the lesser included offense of malicious destruction of property under $250 shall enter. See Commonwealth v. DeBerry, 441 Mass. 211, 224 (2004).
Restitution order. The Commonwealth also concedes that “[i]t presented no facts to support the [j]udge's $775 [r]estitution [o]rder,” but asks us to affirm the order because the defendant failed to request a restitution hearing. Although the defendant did not request a hearing at the time of sentencing, see Commonwealth v. Casserly, 23 Mass.App.Ct. 947, 947 (1986), we decline to uphold the judge's order on the basis of waiver where there is absolutely no factual support for the amount of the award. See Commonwealth v. Nawn, 394 Mass. 1, 7 (1985) (the method of determining restitution must not be arbitrary, and the defendant must have an opportunity to cross-examine witnesses on the amount of the victim's losses); Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001) (“The payment of restitution is limited to the economic losses caused by the conduct of the defendant and documented by the victim”). We therefore remand the case to the District Court for a hearing on restitution.
Conclusion. The judgments on the two counts of malicious destruction of property over $250 are reversed and the findings are set aside. The order of restitution is vacated. The case is remanded to the District Court where findings of guilt on two counts of malicious destruction of property under $250 shall enter, and a restitution hearing shall be held consistent with this memorandum and order.
So ordered.