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
23-P-784
COMMONWEALTH
vs.
DEREK LIMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Derek Lima, was charged with one count of
receiving stolen property in violation of G. L. c. 266, § 60.
After the close of evidence in his jury trial, the defendant
moved for a required finding of not guilty, which the trial
judge denied. The jury then returned a verdict of guilty. The
defendant now appeals from his conviction, arguing that the
trial judge erred in denying his motion for a required finding
of not guilty, as the evidence was not sufficient to prove
beyond a reasonable doubt that he had the requisite knowledge
that the property was stolen. We affirm.
Background. Because the defendant challenges the
sufficiency of the evidence, we summarize the facts of this case
in the light most favorable to the Commonwealth. See
Commonwealth v. Martin, 447 Mass. 274, 287 (2006). On November 12, 2015, the residence of Matthew Cross was
broken into and several items were stolen. Among the stolen
items were five electric guitars, jewelry, and electronics. One
of the stolen guitars was a 1979 Gibson Les Paul (Les Paul) that
was missing its pick guard and had other unique markings. The
Les Paul had an estimated value of approximately $2,000. After
the items were stolen, the police created a flyer with
descriptions of the stolen guitars and photographs of those
guitar models, which were distributed to pawn shops and music
stores in the area.
A week later, on November 19, 2015, the defendant brought a
1979 Les Paul to a pawn shop called Ideal Jewelry and Loan
(Ideal). The Les Paul was missing its pick guard. Ideal
offered a fifty dollar loan for the pawn of the guitar, which
the defendant accepted. Ideal created a customer data sheet for
the defendant, which included a photograph of him, a scan of his
identification, and his fingerprint. This customer data sheet
was connected to the pawn ticket that was generated for the pawn
of the 1979 Les Paul.
The defendant later1 returned to Ideal seeking to sell the
Les Paul he had previously pawned. Ideal offered the defendant
1 The owner of Ideal testified that the defendant returned on November 25, 2015 to sell the Les Paul. However, the detective who worked on the investigation testified that he did not receive a phone call from Ideal until December 1, 2015, and
2 $186 for the Les Paul in addition to the previous fifty dollar
loan. The owner of Ideal testified at trial that he estimated
that the Les Paul was worth at least $2,000.
On that occasion, the defendant also attempted to pawn or
sell a second guitar.2 The owner of Ideal declined to accept the
second guitar, as he recognized it from the flyer of stolen
guitars he had been given by the police. Having recognized that
the Les Paul was also one of the guitars on the flyer, the owner
of Ideal contacted the police after the defendant left the store
on December 1, 2015. Mr. Cross later identified the Les Paul
that the police recovered from Ideal as the one that was stolen
from his residence.
Discussion. In analyzing whether there is sufficient
evidence to support a conviction, the "question 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
Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review the
that he was told that the guitar had been sold to Ideal that same day. The confusion regarding the exact date on which the defendant returned to Ideal does not affect our decision.
2 We note that the defendant is not charged with respect to this second guitar. Therefore, we consider his possession and attempted pawn or sale of the second guitar only in the context of the conviction relating to the Les Paul.
3 denial of a motion for a required finding of not guilty de novo.
Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013).
To convict a defendant of the crime of receiving stolen
property, the Commonwealth must prove beyond a reasonable doubt
that the defendant knew that the property was stolen.
Commonwealth v. Dellamano, 393 Mass. 132, 137-138 (1984), citing
Commonwealth v. Boris, 317 Mass. 309, 315 (1944). Because it
may not be possible to prove a defendant's knowledge by direct
evidence, the Commonwealth may prove knowledge "by inference
from all the facts and circumstances developed at the trial."
Dellamano, supra at 136-137, quoting Commonwealth v. Holiday,
349 Mass. 126, 128 (1965). As the jury were instructed without
objection, the Commonwealth may prove the knowledge element by
showing "that [the defendant] actually knew the property was
stolen or at least that he believed that it was stolen." See
Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 568-570 (2000).
The defendant argues that the Commonwealth did not present
sufficient evidence to prove beyond a reasonable doubt that he
knew the Les Paul was stolen. We disagree. We find that all
the facts and circumstances were sufficient to support an
inference by a rational juror of the defendant's knowledge that
the Les Paul was stolen. See id.
First, the timing of the defendant's pawn of the Les Paul
to Ideal tends to support an inference that the defendant knew
4 it was stolen. The guitars were stolen from Cross's residence
on November 12, 2015, and just one week later, on November 19,
2015, the defendant attempted to pawn the Les Paul that Cross
later identified as one of his stolen guitars. Our case law
establishes that, if a jury finds that a defendant was in
possession of recently stolen property, they are permitted to
draw the inference that the defendant knew the property was
stolen. See Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595,
600 (1988). "The inference permitted by possession of recently
stolen property can be a strong one." Id. While there is no
bright-line rule defining what "recently" means in this context,
given the evidence in this case, the passage of a mere one week
between the theft and the pawn of the Les Paul was a fact the
jury could have weighed in favor of the inference that the
defendant knew that it was stolen.
Second, the defendant was in possession of not just one,
but two of the stolen guitars, and he tried to sell or pawn the
second after he successfully pawned the first.
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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
23-P-784
COMMONWEALTH
vs.
DEREK LIMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Derek Lima, was charged with one count of
receiving stolen property in violation of G. L. c. 266, § 60.
After the close of evidence in his jury trial, the defendant
moved for a required finding of not guilty, which the trial
judge denied. The jury then returned a verdict of guilty. The
defendant now appeals from his conviction, arguing that the
trial judge erred in denying his motion for a required finding
of not guilty, as the evidence was not sufficient to prove
beyond a reasonable doubt that he had the requisite knowledge
that the property was stolen. We affirm.
Background. Because the defendant challenges the
sufficiency of the evidence, we summarize the facts of this case
in the light most favorable to the Commonwealth. See
Commonwealth v. Martin, 447 Mass. 274, 287 (2006). On November 12, 2015, the residence of Matthew Cross was
broken into and several items were stolen. Among the stolen
items were five electric guitars, jewelry, and electronics. One
of the stolen guitars was a 1979 Gibson Les Paul (Les Paul) that
was missing its pick guard and had other unique markings. The
Les Paul had an estimated value of approximately $2,000. After
the items were stolen, the police created a flyer with
descriptions of the stolen guitars and photographs of those
guitar models, which were distributed to pawn shops and music
stores in the area.
A week later, on November 19, 2015, the defendant brought a
1979 Les Paul to a pawn shop called Ideal Jewelry and Loan
(Ideal). The Les Paul was missing its pick guard. Ideal
offered a fifty dollar loan for the pawn of the guitar, which
the defendant accepted. Ideal created a customer data sheet for
the defendant, which included a photograph of him, a scan of his
identification, and his fingerprint. This customer data sheet
was connected to the pawn ticket that was generated for the pawn
of the 1979 Les Paul.
The defendant later1 returned to Ideal seeking to sell the
Les Paul he had previously pawned. Ideal offered the defendant
1 The owner of Ideal testified that the defendant returned on November 25, 2015 to sell the Les Paul. However, the detective who worked on the investigation testified that he did not receive a phone call from Ideal until December 1, 2015, and
2 $186 for the Les Paul in addition to the previous fifty dollar
loan. The owner of Ideal testified at trial that he estimated
that the Les Paul was worth at least $2,000.
On that occasion, the defendant also attempted to pawn or
sell a second guitar.2 The owner of Ideal declined to accept the
second guitar, as he recognized it from the flyer of stolen
guitars he had been given by the police. Having recognized that
the Les Paul was also one of the guitars on the flyer, the owner
of Ideal contacted the police after the defendant left the store
on December 1, 2015. Mr. Cross later identified the Les Paul
that the police recovered from Ideal as the one that was stolen
from his residence.
Discussion. In analyzing whether there is sufficient
evidence to support a conviction, the "question 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
Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review the
that he was told that the guitar had been sold to Ideal that same day. The confusion regarding the exact date on which the defendant returned to Ideal does not affect our decision.
2 We note that the defendant is not charged with respect to this second guitar. Therefore, we consider his possession and attempted pawn or sale of the second guitar only in the context of the conviction relating to the Les Paul.
3 denial of a motion for a required finding of not guilty de novo.
Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013).
To convict a defendant of the crime of receiving stolen
property, the Commonwealth must prove beyond a reasonable doubt
that the defendant knew that the property was stolen.
Commonwealth v. Dellamano, 393 Mass. 132, 137-138 (1984), citing
Commonwealth v. Boris, 317 Mass. 309, 315 (1944). Because it
may not be possible to prove a defendant's knowledge by direct
evidence, the Commonwealth may prove knowledge "by inference
from all the facts and circumstances developed at the trial."
Dellamano, supra at 136-137, quoting Commonwealth v. Holiday,
349 Mass. 126, 128 (1965). As the jury were instructed without
objection, the Commonwealth may prove the knowledge element by
showing "that [the defendant] actually knew the property was
stolen or at least that he believed that it was stolen." See
Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 568-570 (2000).
The defendant argues that the Commonwealth did not present
sufficient evidence to prove beyond a reasonable doubt that he
knew the Les Paul was stolen. We disagree. We find that all
the facts and circumstances were sufficient to support an
inference by a rational juror of the defendant's knowledge that
the Les Paul was stolen. See id.
First, the timing of the defendant's pawn of the Les Paul
to Ideal tends to support an inference that the defendant knew
4 it was stolen. The guitars were stolen from Cross's residence
on November 12, 2015, and just one week later, on November 19,
2015, the defendant attempted to pawn the Les Paul that Cross
later identified as one of his stolen guitars. Our case law
establishes that, if a jury finds that a defendant was in
possession of recently stolen property, they are permitted to
draw the inference that the defendant knew the property was
stolen. See Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595,
600 (1988). "The inference permitted by possession of recently
stolen property can be a strong one." Id. While there is no
bright-line rule defining what "recently" means in this context,
given the evidence in this case, the passage of a mere one week
between the theft and the pawn of the Les Paul was a fact the
jury could have weighed in favor of the inference that the
defendant knew that it was stolen.
Second, the defendant was in possession of not just one,
but two of the stolen guitars, and he tried to sell or pawn the
second after he successfully pawned the first. On either
November 25 or December 1, 2015, the defendant returned to Ideal
with the second stolen guitar and attempted to pawn or sell it.
Although they were not required to, the jury could have
reasonably inferred that the defendant pawned the Les Paul first
to test the waters at this pawn shop and then, once that pawn
was successful, returned to attempt to sell the two guitars
5 outright. The second visit to Ideal and the possession and
attempt to pawn or sell a second stolen guitar also support the
inference that the defendant knew the Les Paul was stolen.
Finally, there was evidence at trial that the Les Paul was
worth significantly more than the $236 the defendant accepted
from Ideal for it. Cross estimated, based on online searches,
that the Les Paul was worth between $1,500 and $3,500 around the
time of trial. At the time of the theft, Cross had estimated
that the Les Paul was worth approximately $2,500. The owner of
Ideal testified that he expected that the Les Paul would sell
for a minimum of about $2,000. The defendant argues that the
pawn and sale of the Les Paul at a significant undervaluation
was not evidence of the defendant's knowledge that it had been
stolen because he did not request the fifty dollar pawn loan or
the additional $186 for the sale. Rather, he argues, Ideal
offered him a certain amount of money and he accepted it, not
knowing how much the Les Paul was actually worth. The defendant
relies on testimony that Ideal "like[s] to pay as little as
possible because that means more profit for [them]." Ideal's
owner also testified that the employee who interacted with the
defendant during both the pawn and the sale "was a very hard
negotiator." However, that testimony did not require the jury
to draw the inference that the defendant did not know the Les
Paul was stolen; the inference that the defendant accepted such
6 a low value rather than attempting to negotiate a higher price
because he knew the Les Paul was stolen remained reasonable.
The defendant asserts that he did not behave in a manner
consistent with knowledge that the Les Paul was stolen. For
example, there was no evidence that the defendant altered the
appearance of the Les Paul or attempted to remove the serial
number before pawning it, tried to hide his identity during the
pawning process providing identification and a fingerprint, or
had a history of dealing in stolen merchandise.
Although the jury could have credited these facts, they
were not required to. And while none of the facts we've
described above standing alone may have been sufficient to prove
the defendant's knowledge –- something we need not and do not
decide –- all the facts and circumstances of this case, when
viewed in the required light, are, taken together, sufficient to
7 support a conclusion beyond a reasonable doubt that the
defendant knew that the Les Paul was stolen.
Judgment affirmed.
By the Court (Rubin, Englander & D'Angelo, JJ.3),
Clerk
Entered: June 27, 2024.
3 The panelists are listed in order of seniority.