Com. v. Mahnke

• Decision Date: 05 May 1982
• Citation: 13 Mass.App.Ct. 1057,434 N.E.2d 682
• Parties: COMMONWEALTH v. George M. MAHNKE.
• Court: Appeals Court of Massachusetts

Page 682

434 N.E.2d 682

13 Mass.App.Ct. 1057

COMMONWEALTH v. George M. MAHNKE.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 16, 1981.

Decided May 5, 1982.

Barry P. Wilson, Boston, for defendant.

Kevin J. Ross, Legal Asst. to the Dist. Atty., East Cambridge, for the Commonwealth.

Before ARMSTRONG, ROSE and SMITH, JJ.

RESCRIPT.

The defendant appeals from convictions on indictments charging larceny of a motor vehicle (see G.L. c. 266, § 28, as amended through St. 1972, c. 78) and possession of burglarious implements (see G.L. c. 266, § 49). He assigns as error the denial of his motion for required findings of not guilty on those indictments.

We review the evidence in the light most favorable to the Commonwealth (Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975) ) in order to determine whether it, along with permissible inferences which could be drawn therefrom, was sufficient to satisfy a rational trier of fact of each essential element of the offenses charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). Commonwealth v. Amaral, 13 Mass.App. 238, 239, 431 N.E.2d 941 (1982). The defendant was arrested after fleeing from a car with out-of-state license plates which had been pursued by the police through the streets of Boston and Cambridge. When captured by the police as he was running a few blocks away from the abandoned car, the defendant was carrying a canvas bag which contained, among other things, a dent puller with an ignition attached, a Massachusetts registration plate, a pair of pliers, and two screwdrivers. A police officer who arrested the defendant observed that the ignition attached to the dent puller fit the empty space in the abandoned car, from which an ignition had been removed. At trial, the two police officers who arrested the defendant testified that they were able to view the occupants of the car which they had pursued, at which time they noted that the driver had bushy hair and was wearing a green shirt. They each identified the defendant, who was wearing a green short-sleeved shirt when apprehended, as the driver of the vehicle. There was evidence that the car in question was stolen. There was no evidence to indicate that there was any money or property in that automobile or that the defendant thought there was.

1. The defendant argues that there was insufficient evidence for the jury to find that the defendant intended "permanently to deprive the rightful owner of the possession of the motor vehicle." Commonwealth v. Giannino, 371 Mass. 700, 703, 358 N.E.2d 1008 (1977). Costarelli v. Commonwealth, 374 Mass. 677, 683, 373 N.E.2d 1183 (1978). We disagree. The issue rightly was submitted to the jury to decide on all the evidence whether the taking of the automobile was larcenous. See Commonwealth v. Subilosky, 352 Mass. 153, 166, 224 N.E.2d 197 (1967), where the court noted that it was for the jury to decide "whether the defendant intended permanently to deprive the owner of the automobile." Commonwealth v. Salerno, 356 Mass. 642, 648, 255 N.E.2d 318 (1970). Cf. Commonwealth v. Cabot, 241 Mass. 131, 142-143, 135 N.E. 465 (1922), a case involving the alleged larceny of property other than a car, in which the court concluded (at 143, 135 N.E. 465) that "(i)t does not lie in the mouth of one who has taken property ... to claim that as a matter of law a definite intent to keep it permanently must be proven. Such an intent may be inferred from all the facts." "One who takes property without the authority of the owner and so uses or disposes of it as to show indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently." Commonwealth v. Salerno, 356 Mass. at 648, 255 N.E.2d 318. The evidence presented in the instant case indicated that the defendant used the stolen car as his own until his imminent apprehension by the police. His abandonment of the car at that time demonstrated a clear indifference to the owner's right of possession. Moreover, the defendant's possession of a dent puller (recognized by the police to be a device often used in the theft of automobiles) and a Massachusetts license plate (which conceivably would be used to alter the identification of the vehicle) was sufficient evidence to allow the jury to infer that the defendant had not taken the car for a "joy ride." See Commonwealth v. Hogg, 365 Mass. 290, 295, 311 N.E.2d 63 (1974). Accordingly, we hold that the trial judge did not err in denying the defendant's motion for a required finding of not guilty on indictment No....