Commonwealth v. Liebenow

• Decision Date: 21 November 2013
• Docket Number: No. 11–P–2163.,11–P–2163.
• Citation: 84 Mass.App.Ct. 387,997 N.E.2d 109
• Parties: COMMONWEALTH v. Carl B. LIEBENOW, Jr.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 387
997 N.E.2d 109

COMMONWEALTH
v.
Carl B. LIEBENOW, Jr.¹

No. 11–P–2163.

Appeals Court of Massachusetts,
Berkshire.

Argued March 27, 2013.
Decided Oct. 17, 2013.
Further Appellate Review Granted Nov. 21, 2013.

[997 N.E.2d 110]

Elizabeth Caddick for the defendant.

James F. Petersen, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., CYPHER, BERRY, SIKORA, & MILKEY, JJ.

BERRY, J.

The defendant was convicted of larceny under $250 for the theft of steel pipes and metal plates from a construction site. G.L. c. 266, § 30. At a bench trial, the defendant claimed as an affirmative defense that he lacked the requisite specific intent to steal because he honestly believed that the metal property was abandoned. This defense was unsuccessful. The trial judge determined that the defendant's stated belief that the pieces of metal were abandoned property—notwithstanding that these metal construction materials were being stored on private property posted with no trespassing signs—even if considered as honest in the defendant's subjective mind, was not objectively reasonable based on the case evidence.

A majority of this court, as reflected by the expanded panel, affirms the conviction. We discern no error in the trial judge's

[997 N.E.2d 111]

determination of guilt. The record reflects that the judge understood the law of the affirmative defense of mistake of fact and abandonment in the context of a larceny charge, and correctly applied that law in finding the defendant guilty on the evidence presented.

The dissent discerns error in the judge's guilty finding only by postulating a new formulation of the affirmative defense of mistake and abandonment. That new formulation is that a defendant's subjectively held honest belief that property is abandoned need not be reasonable and may, indeed, be totally unreasonable. Neither that formulation, nor the dissent's criticism that the judge incorrectly rejected the abandonment defense in making his finding, supports a reversal of the larceny conviction in this case.²

1. Background of the trial and guilty finding. The following is a brief summary of the trial evidence and entry of the guilty finding.

The construction site from which the defendant took the pieces of metal was private property located in Pittsfield. The property was known as Amy Court. There was active, ongoing construction on a townhouse development, with large construction machines, a work trailer, the raising of a building, and the clearing of land. There were several “no trespassing ... private property” signs posted throughout the site. The defendant drove his pickup truck onto Amy Court during midmorning. The defendant then took several lengths of steel pipe and metal plates and loaded them into the back of his pickup truck. An employee at the site inquired what the defendant was doing. The defendant replied that he was just picking up some junk steel. The defendant drove away from the Amy Court construction site. The police were notified. Shortly thereafter, a police officer stopped the defendant. The bed of the defendant's pickup truck still contained numerous pieces of pipe, plates, and other metal. When inquired of by the police officer where he had gotten the metal, the defendant first denied that any of the metal came from the Amy Court construction site.

The defendant later changed this story and admitted that the metal property was taken from the construction site. However, the defendant testified that he honestly believed the metal was abandoned. In finding the defendant guilty, the trial judge stated, “As far as I'm concerned, the presence of the no trespassing sign puts you on notice that the property was not for you to take. Your honest belief at that point would not be relevant. So I find you guilty, sir.”

The dissent sees this statement as error of law. We think not. “When a case is tried without a jury, the legal framework in which facts are to be found is not generally stated with the precision and amplitude of instructions to a jury [and] it is presumed that the judge as trier of fact applies correct legal principles.” Commonwealth v. Kerns, 449 Mass. 641, 655, 871 N.E.2d 433 (2007), quoting from Commonwealth v. Milo M., 433 Mass. 149, 152, 740 N.E.2d 967 (2001). The dissent far too finely parses and interprets the judge's remark in such a way that would compel a reversal that is entirely unwarranted by the trial evidence. As the trial transcript reveals, the judge referenced the no trespassing signs as “put[ting] [the defendant] on notice” that the scrap metal was not abandoned. Add to this that the defendant lied when first confronted by the

[997 N.E.2d 112]

police, denying that he had taken the metal pieces from within the Amy Court construction site. These two incriminating pieces of evidence, when added to the totality of the other evidence at trial, support the judge's rejection of the affirmative defense of mistake of fact with regard to property abandonment.

Contrary to what the dissent writes, the judge's few words in brief comment concerning the posted no trespassing signs—which comment was tied to evidence that logically tended to demonstrate that the metal property behind the posted no trespassing signs was not abandoned and could not objectively be believed to be so—does not give rise to reversible error. Indeed, because the evidence in the light most favorable to the Commonwealth supported the guilty finding on the existing law of larceny and the affirmative defense of mistake on property ownership or property abandonment, this case could be affirmed without further address.³ However, the dissent would go much further in address and seeks to revamp the existing black-letter law governing this affirmative defense.⁴ We turn now to this issue concerning the state of the existing law.

2. Mistake of fact with regard to abandonment. As recast under the dissent's construction, a defendant's mistaken belief regarding property ownership or abandonment would compel a trial judge to instruct that the jury must acquit (or a judge sitting as fact finder must acquit), even if a defendant's subjectively expressed honest belief that property is abandoned is, objectively, totally unreasonable. Such acquittals under the dissent's theory would be compelled so long as a defendant claims—even without any reasonable basis to so believe—that the property had no owner or was abandoned. No Massachusetts case supports this newly defined affirmative defense wrought by the dissent. Indeed, the dissent's recast is not only out of sync with existing case law but also contrary to the model jury instructions, discussed infra, which define the elements of, and affirmative defenses to, the crime of larceny.

Finally, and of import, the dissent's recast of the affirmative defense of mistake concerning abandonment of property will lead to instructing a jury (and defining the law to be applied by a judge as fact finder) that the jury (or judge) must enter a not guilty verdict (or finding)—even if such an acquittal is contrary to the trial evidence, and even if the acquittal is virtually nonsensical because the defendant's belief that the subject property was abandoned is entirely irrational and unreasonable, if viewed objectively. We address each of the above-mentioned concerns in turn.

a. The case law on this affirmative defense to larceny. As previously observed,

[997 N.E.2d 113]

the dissent overlooks extant, well-established Massachusetts case law. Hence, we now turn to a number of Massachusetts cases stating that, where a defendant claims as an affirmative defense a mistake of fact concerning the ownership of property or abandonment, such mistaken belief must be both honestly held and reasonable under the circumstances.

In Commonwealth v. Anslono, 9 Mass.App.Ct. 867, 401 N.E.2d 156 (1980), the court made clear that, if an affirmative defense is raised premised on a defendant's mistaken belief concerning ownership interest in property subject to a motor vehicle larceny prosecution (which, of course, encompasses an affirmative defense structured on a lack of any ownership by abandonment), the defendant is entitled to an instruction directed to whether the defendant had both an honest and reasonable belief concerning the property ownership issue. In Anslono, we wrote as follows on the issue:

“On the evidence, the judge was required to instruct the jury clearly and correctly, in a fair and impartial manner, on the substantive elements of the crime charged, with particular attention to the crucial question of the existence of a larcenous intent. Commonwealth v. Porter, [51 Mass. 263,] 10 Met. 263, 283 (1846). Commonwealth v. Carson, 349 Mass. 430, 435 [208 N.E.2d 792] (1965). Commonwealth v. Kelley, 359 Mass. 77, 92 [268 N.E.2d 132] (1971). Commonwealth v. Corcione, 364 Mass. 611, 618 [307 N.E.2d 321] (1974)....

“His instructions on the question of larcenous intent ... omitted entirely an instruction that the defendant was entitled to an acquittal if he honestly and reasonably believed that he had title to, and the right to sell, the motor vehicle. Commonwealth v. Stebbins, [74 Mass. 492,] 8 Gray 492, 495 (1857). Commonwealth v. White, 5 Mass.App.Ct. 483, 485–488 [363 N.E.2d 1365] (1977).” (Emphasis added.)

Anslono, 9 Mass.App.Ct. at 867–868, 401 N.E.2d 156. Thus, the dual requirement of an honest and reasonable predicate for the affirmative defense of mistaken ownership or abandonment in a larceny prosecution is patent in Anslono.⁵ Cf. Commonwealth v. Titus, 116 Mass. 42, 44–45 (1874) ( “[I]f, at the time of first taking [lost goods] into his possession, [the defendant] has a felonious intent to appropriate them to his own use and to deprive the owner of them, and then knows or has the reasonable means of knowing or ascertaining ... who the owner is, he may be found guilty of larceny”).

Also imposing this dual requirement of subjective honesty and objective reasonableness is ...