NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1097
COMMONWEALTH
vs.
DEENHA J. ROMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the District Court, the
defendant, Deenha J. Roma, was convicted of larceny over $1,200. 1
On appeal, she contends that reversal is required because her
motion to dismiss for lack of probable cause and her motion for
a required finding of not guilty should have been allowed. We
affirm.
1 The defendant was charged under G. L. c. 266, § 30 (1), the relevant portion of which provides: "Whoever steals, or with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another . . . shall be guilty of larceny, and shall, if the property stolen is a firearm . . . or, if the value of the property stolen exceeds $1,200, be punished . . . ." By its terms, the statute renders the misdemeanor crime of larceny a felony when the item stolen is a firearm or when the value of the stolen property exceeds $1,200. Here, it appears that the Commonwealth proceeded on the "firearm" portion of the statute rather than the "exceeds $1,200" portion. The defendant does not argue to the contrary on appeal. Background. We recite the facts delineated in the
application for complaint, including the police reports and
documentation filed in support thereof, in the light most
favorable to the Commonwealth. 2 Commonwealth v. Costa, 97 Mass.
App. Ct. 447, 449 (2020). The victim, Anthony Roma, owned and
resided at 47 Fremont Street in Taunton. His sister, Deenha
Roma, the defendant in this case, had also resided at that
residence, but was evicted from the premises by an order of the
Housing Court. The defendant, by virtue of the Housing Court
order, was obligated to remove all her belongings from the
residence and was not permitted to return. On December 31,
2018, the defendant entered the residence and removed several
items.
The victim returned to his home on January 1, 2019, and
noticed that his house was in disarray and several of his
belongings were missing. He further saw that the doorknob and
dead bolt lock to a basement closet door had been removed.
Within that closet, the victim kept his deceased father's
firearms including rifles, shotguns, and a "sawn-off shotgun."
He kept those items wrapped in a white cloth. The victim
contacted the Taunton Police Department and reported the alleged
theft. Officer Jeremy Derosier spoke to the victim and then
2 At trial the Commonwealth presented additional facts, some of which are referenced in the discussion section infra.
2 contacted the defendant. The defendant claimed that she only
removed items that belonged to her. Officer Derosier asked her
if she had removed a heavy item wrapped in a white sheet or
blanket. The defendant replied that she "did not." The
defendant "also noted that [the victim’s] belongings were and
always have been under constant lock and key," and she "does not
have access to [his] belongings due to this."
On January 2, 2019, following further investigation,
Officer Derosier went to the defendant's residence and advised
that he was looking for the large white package that contained
the guns. The defendant responded that she "did not know what
package [he] was referring to" but allowed him to look through
the apartment. Officer Derosier did so but was unable to locate
the items. The next day, January 3, 2019, Taunton Police
Detective Oliveira reported that he had received word from the
defendant that she had found the guns within her property.
Detective Oliveira retrieved the guns.
The victim filed an application for criminal complaint
against the defendant and, following a clerk-magistrate hearing,
a complaint issued charging the defendant with felony larceny
pursuant to G. L. c. 266, § 30(1). The defendant filed a motion
to dismiss the complaint for lack of probable cause. Following
a hearing a District Court judge (motion judge) denied the
3 motion as to the larceny count. 3 After a subsequent jury-waived
trial 4 a judge (trial judge) found the defendant guilty of
larceny over $1,200. 5
Discussion. 1. Motion to dismiss. The defendant contends
that there was no evidence presented to the clerk-magistrate to
support a reasonable inference that she intended to steal the
guns, or to permanently deprive the victim of them, and thus the
motion judge erred in denying her motion to dismiss. The claim
is unavailing.
Where a clerk-magistrate has issued a criminal complaint, a
motion to dismiss “is the appropriate and only way to challenge
3 The defendant was also charged, on a separate docket, with malicious destruction of property. The motion judge dismissed that charge for lack of probable cause. 4 The trial transcript reflects that the facts adduced at trial
not only mirrored the facts stated in the police report, but provided added support for the defendant's conviction. 5 Under the larceny statute, G. L. c. 266, § 30(1), the
Commonwealth must prove that a defendant took the personal property of another without the right to do so, with the specific intent to deprive the other of the property permanently. See, e.g., Commonwealth v. Liebenow, 470 Mass. 151, 156 (2104). The statute further increases the penalty for larceny to a felony where "the value of the property stolen exceeds $1,200" or where the property stolen is a firearm. In the present case, although not entirely clear, it appears that the probable cause determination and conviction were predicated on the property being a firearm. In any event, there is no claim on appeal that the items did not constitute "firearms" within the meaning of G. L. c. 266, § 30(1). Moreover, the defendant does not challenge the aggravating element of the felony larceny complaint or conviction; rather, the claim on appeal is that the Commonwealth failed to prove the elements of intent to steal and intent to deprive permanently.
4 a finding of probable cause." Commonwealth v. DiBennadetto, 436
Mass. 310, 313 (2002). Ordinarily, "[a] motion to dismiss for
lack of probable cause 'is decided from the four corners of the
complaint application, without evidentiary hearing.'"
Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016),
quoting Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013).
But see G. L. c. 218, § 35A (granting clerk-magistrate
discretion to give "person against whom [a] complaint is
made . . . in the case of a complaint for a felony which is not
received from a law enforcement officer," an "opportunity to be
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1097
COMMONWEALTH
vs.
DEENHA J. ROMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the District Court, the
defendant, Deenha J. Roma, was convicted of larceny over $1,200. 1
On appeal, she contends that reversal is required because her
motion to dismiss for lack of probable cause and her motion for
a required finding of not guilty should have been allowed. We
affirm.
1 The defendant was charged under G. L. c. 266, § 30 (1), the relevant portion of which provides: "Whoever steals, or with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another . . . shall be guilty of larceny, and shall, if the property stolen is a firearm . . . or, if the value of the property stolen exceeds $1,200, be punished . . . ." By its terms, the statute renders the misdemeanor crime of larceny a felony when the item stolen is a firearm or when the value of the stolen property exceeds $1,200. Here, it appears that the Commonwealth proceeded on the "firearm" portion of the statute rather than the "exceeds $1,200" portion. The defendant does not argue to the contrary on appeal. Background. We recite the facts delineated in the
application for complaint, including the police reports and
documentation filed in support thereof, in the light most
favorable to the Commonwealth. 2 Commonwealth v. Costa, 97 Mass.
App. Ct. 447, 449 (2020). The victim, Anthony Roma, owned and
resided at 47 Fremont Street in Taunton. His sister, Deenha
Roma, the defendant in this case, had also resided at that
residence, but was evicted from the premises by an order of the
Housing Court. The defendant, by virtue of the Housing Court
order, was obligated to remove all her belongings from the
residence and was not permitted to return. On December 31,
2018, the defendant entered the residence and removed several
items.
The victim returned to his home on January 1, 2019, and
noticed that his house was in disarray and several of his
belongings were missing. He further saw that the doorknob and
dead bolt lock to a basement closet door had been removed.
Within that closet, the victim kept his deceased father's
firearms including rifles, shotguns, and a "sawn-off shotgun."
He kept those items wrapped in a white cloth. The victim
contacted the Taunton Police Department and reported the alleged
theft. Officer Jeremy Derosier spoke to the victim and then
2 At trial the Commonwealth presented additional facts, some of which are referenced in the discussion section infra.
2 contacted the defendant. The defendant claimed that she only
removed items that belonged to her. Officer Derosier asked her
if she had removed a heavy item wrapped in a white sheet or
blanket. The defendant replied that she "did not." The
defendant "also noted that [the victim’s] belongings were and
always have been under constant lock and key," and she "does not
have access to [his] belongings due to this."
On January 2, 2019, following further investigation,
Officer Derosier went to the defendant's residence and advised
that he was looking for the large white package that contained
the guns. The defendant responded that she "did not know what
package [he] was referring to" but allowed him to look through
the apartment. Officer Derosier did so but was unable to locate
the items. The next day, January 3, 2019, Taunton Police
Detective Oliveira reported that he had received word from the
defendant that she had found the guns within her property.
Detective Oliveira retrieved the guns.
The victim filed an application for criminal complaint
against the defendant and, following a clerk-magistrate hearing,
a complaint issued charging the defendant with felony larceny
pursuant to G. L. c. 266, § 30(1). The defendant filed a motion
to dismiss the complaint for lack of probable cause. Following
a hearing a District Court judge (motion judge) denied the
3 motion as to the larceny count. 3 After a subsequent jury-waived
trial 4 a judge (trial judge) found the defendant guilty of
larceny over $1,200. 5
Discussion. 1. Motion to dismiss. The defendant contends
that there was no evidence presented to the clerk-magistrate to
support a reasonable inference that she intended to steal the
guns, or to permanently deprive the victim of them, and thus the
motion judge erred in denying her motion to dismiss. The claim
is unavailing.
Where a clerk-magistrate has issued a criminal complaint, a
motion to dismiss “is the appropriate and only way to challenge
3 The defendant was also charged, on a separate docket, with malicious destruction of property. The motion judge dismissed that charge for lack of probable cause. 4 The trial transcript reflects that the facts adduced at trial
not only mirrored the facts stated in the police report, but provided added support for the defendant's conviction. 5 Under the larceny statute, G. L. c. 266, § 30(1), the
Commonwealth must prove that a defendant took the personal property of another without the right to do so, with the specific intent to deprive the other of the property permanently. See, e.g., Commonwealth v. Liebenow, 470 Mass. 151, 156 (2104). The statute further increases the penalty for larceny to a felony where "the value of the property stolen exceeds $1,200" or where the property stolen is a firearm. In the present case, although not entirely clear, it appears that the probable cause determination and conviction were predicated on the property being a firearm. In any event, there is no claim on appeal that the items did not constitute "firearms" within the meaning of G. L. c. 266, § 30(1). Moreover, the defendant does not challenge the aggravating element of the felony larceny complaint or conviction; rather, the claim on appeal is that the Commonwealth failed to prove the elements of intent to steal and intent to deprive permanently.
4 a finding of probable cause." Commonwealth v. DiBennadetto, 436
Mass. 310, 313 (2002). Ordinarily, "[a] motion to dismiss for
lack of probable cause 'is decided from the four corners of the
complaint application, without evidentiary hearing.'"
Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016),
quoting Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013).
But see G. L. c. 218, § 35A (granting clerk-magistrate
discretion to give "person against whom [a] complaint is
made . . . in the case of a complaint for a felony which is not
received from a law enforcement officer," an "opportunity to be
heard personally or by counsel in opposition to the issuance of
any process"). 6 "The complaint application must include
information to support probable cause as to each essential
element of the offense." Humberto H., supra at 565-566. Our
review of a judge's probable cause determination is a question
of law, which we review de novo. Id. at 566. We view the
information set forth in the complaint application "in the light
most favorable to the Commonwealth." Leonard, supra.
6 It appears that the clerk magistrate who issued the criminal complaint may have held a hearing and heard witness testimony. See G. L. c. 218, § 35A. However, in their appellate briefs neither party references any evidence adduced at the clerk- magistrate hearing. Moreover, at the hearing on the motion to dismiss, the prosecutor advised the motion judge that he "would rest on the police report." Accordingly, we confine our analysis in the present case to the information contained in the application for complaint and attached police report submitted to the clerk-magistrate.
5 Probable cause "exists where the facts and
circumstances . . . [are] sufficient in themselves to warrant a
[person] of reasonable caution in the belief that an offense has
been . . . committed" (quotation omitted). Commonwealth v.
Coggeshall, 473 Mass. 665, 667 (2016). "Probable cause requires
more than mere suspicion, but it is considerably less demanding
than proof beyond a reasonable doubt" (quotation omitted). Id.
"When applying this standard we are guided by the factual and
practical considerations of everyday life on which reasonably
prudent [people], not legal technicians, act" (quotation
omitted). Id. Indeed, probable cause is a less demanding
standard than preponderance of the evidence. See Commonwealth
v. Preston P., 483 Mass. 759, 774 (2020) ("proof by a
preponderance of the evidence" is "a higher standard than
probable cause").
Here, the defendant was charged with felony larceny. See
note 5, supra. From the materials presented at the probable
cause hearing, the clerk-magistrate could have found that the
victim and defendant had a relationship involving recent
disagreement and hostility; that the victim was authorized to
take "her belongings out of the residence" and was not permitted
to return; that she knew that the victim's possessions were kept
under lock and key; that the doorknob and dead bolt to the
basement closet, where the victim kept his guns, had been
6 removed; that the victim's guns were taken from that basement
closet without consent; and that the defendant possessed that
large heavy package of guns at her home. These facts, including
the removed doorknob and dead bolt and the ongoing hostilities,
would warrant a person of reasonable caution to believe that the
defendant broke into the closet (or directed someone to do so),
took the guns, and did so with the specific intent to deprive
the victim permanently of his property.
2. Required finding. The defendant also claims that the
evidence at trial was insufficient to prove that she had the
requisite intent to steal the guns or had the intent to
permanently deprive the defendant of them. We apply the
familiar Latimore test to determine "whether, after viewing the
evidence in the light most favorable to the [Commonwealth], any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (emphasis and citation
omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
"If, from the evidence, conflicting inferences are possible, it
is for the [factfinder] to determine where the truth lies, for
the weight and credibility of the evidence is wholly within
[its] province." Commonwealth v. Lao, 443 Mass. 770, 779
(2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). See
Commonwealth v. Nelson, 370 Mass. 192, 203 (1976) (evidence need
7 not require jury to draw inference; sufficient that evidence
permits inference to be drawn).
For the reasons discussed supra, the circumstantial
evidence at trial was more than sufficient to prove each element
of larceny. In addition to much of the evidence described
above, the judge heard added details at trial including but not
limited to: evidence regarding the agreement filed in the
Housing Court specifying that "[o]ther than washer-dryer all
items shall remain in basement being landlord's personal
property;" details of the litany of missing items after the
defendant vacated the home; and evidence that the defendant did
not have a key to access the guns. The defendant insists that
because Officer Derosier categorized the theft as a "civil
matter" in his police report, the present case should be treated
as such. While the present dispute could conceivably have been
suitably resolved outside the criminal arena, the defendant
cites to no authority that authorizes, much less compels,
dismissal for that reason. The victim applied for a criminal
complaint and, following a hearing, a clerk-magistrate found
probable cause and issued the criminal complaint as authorized
by G. L. c. 218, § 35A. Where the information presented to the
clerk-magistrate supported the determination of probable cause,
and where the evidence at trial supported the denial of the
8 motion for a required finding of not guilty, we are compelled to
affirm the judgment. 7
Judgment affirmed.
By the Court (Green, C.J., Neyman & Englander, JJ. 8),
Assistant Clerk
Entered: March 18, 2024.
7 The defendant also argues that the Commonwealth failed to disprove her claim that she made an honest mistake in taking the guns. In particular, she highlights the fact that the guns were wrapped and that she ultimately returned them. While this evidence supported her affirmative defense of honest mistake, see Commonwealth v. Vives, 447 Mass. 537, 540-541 (2006), the finder of fact was not obligated to credit her claim, especially in view of the considerable circumstantial evidence described above. 8 The panelists are listed in order of seniority.