Commonwealth v. Ortiz

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24-P-1364 Appeals Court

COMMONWEALTH vs. LUIS A. ORTIZ.

No. 24-P-1364.

Worcester. October 27, 2025. – January 22, 2026.

Present: Meade, Neyman, & Walsh, JJ.

Breaking and Entering. Destruction of Property. Larceny.
Firearms. Evidence, Firearm, Identification, Inference.
Identification. Deoxyribonucleic Acid.

Complaint received and sworn to in the Leominster Division
of the District Court Department on September 2, 2022.

The case was heard by Mark E. Noonan, J.

Kevin P. DeMello for the defendant.
Anne S. Kennedy, Assistant District Attorney, for the
Commonwealth.

NEYMAN, J. Following a jury-waived trial in the District

Court, the defendant, Luis A. Ortiz, was convicted of breaking

and entering a building in the nighttime with intent to commit a

felony, malicious destruction of property valued in excess of

$1,200, and larceny of a firearm. On appeal, he contends that
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the existence of his deoxyribonucleic acid (DNA) on a latex

glove found near the crime scene was insufficient to establish

that he had committed the crimes. We conclude that the DNA

evidence combined with the other evidence presented by the

Commonwealth was sufficient to identify the defendant as the

perpetrator of the crimes and thus affirm.

Background. Where the defendant challenges the sufficiency

of the evidence, we summarize the evidence in the light most

favorable to the Commonwealth, reserving certain details for

discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979).

On the evening of March 22, 2019, the victim went out after

work "for just a short dinner." When he returned to his home in

Leominster around 8 or 8:30 P.M., he saw that the "downstairs

door was open," a drawer was open, and his upstairs bedroom was

"in shambles." He noticed myriad items missing from that

bedroom including several firearms, "a good amount of rolled

change," a small safe containing another firearm and

approximately $6,000, other personal items, and ammunition.1

Near the sliding glass back door to the house "where it looked

like the door had been tried to be pried open," he noticed

shoeprints in the mud, and a "tire lug wrench" that he had not

1 The victim had a license to carry firearms.
3

seen prior to that evening. The "glass slider door had been

forcibly removed from the track."

The victim contacted the police and, at approximately

9:30 P.M. the same day, Officer Laurinda Dion responded to the

home. The victim walked Officer Dion through the house and

"started pointing out things that were missing." Officer Dion

saw the glass sliding door that had been removed and noticed the

shoeprints in the mud. At Officer Dion's request, Detective

Oswaldo Ramos arrived "to process the scene overall." Detective

Ramos later returned to the scene and took a "casting

impression" of the "foot impression that was left behind

adjacent to the area where the break[-in] had taken place by the

sliding glass doors."2 That shoeprint measured size eleven to

eleven and one-half inches.

Two days after the incident, the victim's girlfriend and

her friend were walking from the backyard of the victim's home

on a path into the adjacent woods that led from the home to the

street further up the road. On that path, they "saw things."

Joined by the victim, they found the handle from the victim's

rifle case, a plastic package containing one hundred rounds of

".22 [caliber] ammunition" taken from the victim's home, and

2 Photographs of the shoeprint taken by Detective Ramos were
admitted in evidence at trial.
4

four purple or lavender latex gloves "up by the side of the road

right inside the woods line," 150 feet from the house.3 The

fingertip from one of the latex gloves was found in the woods

approximately ten feet from the other pieces of evidence

including the box of ammunition. The victim also found two

small pieces of the same color latex gloves under some plastic

pallets behind his house by "where you come out of the house";

the victim had not moved the pallets for "a few years." "It

looked like [the glove] got ripped on something, and actually it

just fell through the [pallet] like it's not something that was

thrown under there." Officer Dion collected this evidence, and

Detective Ramos submitted the gloves to the Massachusetts State

police crime laboratory for testing. Officer Dion also took

photographs of the purple latex glove tip, the box of

ammunition, and other evidence at the scene.4 DNA testing on the

"fingertip glove" found near the strewn ammunition and other

evidence matched the DNA profile from a saliva sample taken from

the defendant.5

3 When the judge announced his finding, he described part of
the evidence as a "debris trail of gun handles and ammo and more
ammo and pieces of glove and tire irons."

4 The photographs taken by Officer Dion were admitted in
evidence at trial.

5 At trial, the parties stipulated that on December 15,
2021, the Massachusetts State police crime laboratory conducted
5

Detective Ramos later contacted the Worcester County house

of correction, where the defendant was being held (after the

date of the crime and on an unrelated matter), obtained

photographs of the defendant's shoes at the house of correction,

and confirmed that the defendant had a shoe size of eleven and

one-half. Detective Ramos interviewed the defendant at the

house of correction. The defendant denied being in Leominster

in March of 2019. Detective Ramos also confirmed that the

defendant resided in Worcester prior to his incarceration, and

that one of the firearms stolen from the victim's home was

recovered in Worcester.

Discussion. The sole issue before us is whether the

evidence at trial was sufficient to identify the defendant as

the perpetrator of the crimes. We apply the familiar Latimore

test to determine "whether, after viewing the evidence in the

a search of the Combined DNA Index System, "the result of which
found that the DNA profile developed by Bode Technology [the
entity that processed the DNA evidence from the latex glove] is
linked to the DNA profile from the defendant." The stipulation
further stated that on July 17, 2023, Bode Technology "received
a known saliva standard from the defendant" for comparison, and
that Bode Technology "was able to match the DNA profile from the
latex glove evidence to the [defendant's] DNA profile." The
stipulation also stated that the results "do not determine when
the defendant's DNA was deposited on the glove, whether the
defendant had most recently handled the glove when it was found,
or whether the defendant had directly handled the glove at all."
The judge read the stipulation into the record at trial and
admitted the stipulation as an exhibit.
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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).

Latimore, 378 Mass. at 677. "If, from the evidence, conflicting

inferences are possible, it is for the [fact finder] 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 E.B. Cypher, Criminal Practice and

Procedure § 37.10 (4th ed. 2014). "Circumstantial evidence is

sufficient to find someone guilty beyond a reasonable doubt and

inferences drawn from such circumstantial evidence need only be

reasonable and possible; [they] need not be necessary or

inescapable" (quotation and citation omitted). Commonwealth v.

Davis, 487 Mass. 448, 462 (2021). At the same time, although

the fact finder is "permitted to draw rational inferences from

the evidence, . . . no essential element of the crime may rest

in surmise, conjecture, or guesswork" (citation omitted).

Commonwealth v. Lopez, 484 Mass. 211, 216 (2020).

In the present case, the Commonwealth introduced evidence

of the presence of the defendant's DNA on a fingertip piece of

latex glove found in the woods behind the victim's home. As a

general rule, the presence of DNA evidence "on an object alone

does not provide sufficient information to determine when the
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DNA was deposited on the object." Commonwealth v. Anitus, 93

Mass. App. Ct. 104, 108 (2018). DNA evidence coupled with other

evidence, however, may be sufficient to allow a fact finder to

find beyond a reasonable doubt that a defendant committed a

crime. Id. at 108-109. In circumstances where the only

identification evidence consists of the defendant's DNA at the

crime scene, the Commonwealth must establish that the DNA was

placed there during the commission of the crime. See

Commonwealth v. Morris, 422 Mass. 254, 257 (1996) ("If . . . the

only identification evidence is the defendant's fingerprint at

the crime scene, the prosecution must prove beyond a reasonable

doubt that the fingerprint was placed there during the crime");

Anitus, supra (applying rule in Morris to DNA evidence). In

other words, the Commonwealth's DNA evidence "must be coupled

with evidence of other circumstances tending to reasonably

exclude the hypothesis that the [DNA evidence] was [deposited]

at a time other than that of the crime" (citation omitted).

Anitus, supra at 108. See Commonwealth v. Cuba, 106 Mass. App.

Ct. 261, 263-264 (2025), quoting Commonwealth v. Fazzino, 27

Mass. App. Ct. 485, 487 (1989) ("Commonwealth's evidence must

'reasonably exclude[] the hypothesis that the fingerprints were

impressed at a time other than when the crime was being

committed'"). Here, where the parties stipulated that the DNA

laboratory results "do not determine when the defendant's DNA
8

was deposited on the glove," the Commonwealth was obligated to

meet the standard articulated in Morris and Anitus.

Viewed in the light most favorable to the Commonwealth, the

evidence at trial was sufficient to identify the defendant as

the perpetrator of the crimes. The Commonwealth did not merely

introduce evidence of the presence of the defendant's DNA on a

portable object that happened to be found at the crime scene.

Cf. Commonwealth v. Renaud, 81 Mass. App. Ct. 261, 264 (2012).

Rather, the Commonwealth introduced evidence of the presence of

the defendant's DNA on the fingertip of the latex glove found in

the woods behind the victim's home and adjacent to items that

had just been stolen from the victim's home including a box of

ammunition and a part of a rifle case belonging to the victim.

It was reasonable to infer that the latex glove itself, with the

defendant's DNA on it, was an instrument of the crime as it was

found on the path leading away from the victim's home, in close

proximity to the strewn ammunition and other items stolen from

the home. This inference was bolstered by the other pieces of

the same color latex gloves found under plastic pallets behind

the house, adjacent to the rear sliding glass door entrance to

the home. The totality of circumstances here -- including the

location and proximity of the latex glove to the home, the

location and proximity of the latex glove to the recently stolen

items, and the timing of their discovery soon after the crimes -
9

- established a direct and compelling temporal and schematic

nexus to the crime. Indeed, a rational fact finder could have

reasonably inferred from this evidence that the perpetrator in

the present case broke into the victim's home, used the latex

gloves to prevent the deposit of evidence at the home, and

discarded the latex glove on the path as he fled the area with

the stolen goods. That clear chain of events makes this case

closer to Cuba than to the cases relied on by the defendant.

Cuba, 106 Mass. App. Ct. at 264-266 (sufficient evidence of

identification where only direct evidence that defendant was at

crime scene was defendant's fingerprint on exterior of victim's

car, which "was, for all intents and purposes, the site of the

charged crimes"; no reasonable possibility defendant touched car

at any other time than commission of crime; and video footage

generally corroborated descriptions of defendant).6 See, e.g.,

Anitus, 93 Mass. App. Ct. at 108-109 (not only impossible to

discern when DNA was deposited on T-shirt or bandana found near

crime scene but also impossible to determine "whether it was the

defendant who had most recently handled either object, or indeed

[in view of the potential for secondary transfer] whether the

defendant had directly handled the T-shirt or the bandana at

6 Cuba, 106 Mass. App. Ct. at 261, was decided after
briefing and oral argument in this case.
10

all"); Renaud, supra (electronic bank transfer [EBT] card

bearing defendant's name found in living room of burglarized

house insufficient standing alone to sustain convictions where

there was no evidence suggesting that defendant "possessed, and

subsequently dropped, his EBT card during the crime"). Cf.

Morris, 422 Mass. at 259 (evidence suggested alternative

explanation that defendant handled mask while associating with

suspects before or after crime).

Moreover, the fingertip of the latex glove bearing the

defendant's DNA found discarded near the strewn stolen items had

been torn off or ripped, like the two other "small pieces of the

same color rubber gloves" that appeared to have been "ripped on

something" that were found beneath the pallets outside the rear

door of the victim's home. This evidence, viewed in combination

with the location of the strewn and scattered stolen items found

in the woods leading from the house, tended to suggest that the

glove had just been "possessed, and subsequently dropped" after

being used "during the crime." Renaud, 81 Mass. App. Ct. at

264. Of further note, the evidence at trial suggested that the

latex gloves, unlike the evidence found in other cases relied on

by the defendant, had a nondurable quality and were unlikely to

have been reused. See, e.g., Morris, 422 Mass. at 257-258

(plastic clown mask); Anitus, 93 Mass. App. Ct. at 108-109 (T-

shirt and bandana).
11

In addition to the foregoing evidence, the Commonwealth

introduced evidence of the presence of the size eleven and one-

half-inch shoeprint at the crime scene initially seen on the

date of the crime, the same as the defendant's shoe size, as

well as the subsequent discovery of the stolen firearm in

Worcester where the defendant resided. See Fazzino, 27 Mass.

App. Ct. at 487-488 (evidence of defendant's fingerprints at

scene of break-in coupled with circumstantial evidence including

location of fingerprints plus defendant's knowledge regarding

point of entry and location of money sufficient to link

defendant to crime).

Finally, "[i]t remains for us to consider whether the

evidence reasonably exclude[d] the hypothesis that the [DNA] was

left at some time prior to the commission of the crime." Cuba,

106 Mass. App. Ct. at 266 (quotation and citation omitted).

Here, there was no hint of any suggestion as to how the

defendant's DNA could have made its way onto the latex glove,

other than by the defendant wearing it and discarding it either

going to or coming from the victim's home. Cf. Morris, 422

Mass. at 259. To the contrary, as discussed above, the totality

of evidence including the location of the latex glove discarded

on the path in close proximity to the home and to the trail of

recently stolen items similarly discarded on the path, gave rise

to the reasonable inference that the latex glove was used in the
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commission of the crimes, and that the DNA was deposited thereon

at the time of the offense. Although it is not impossible to

imagine that the defendant somehow used or touched the same

latex glove at an earlier time, and that same glove somehow made

its way to the crime scene in Leominster7 and was somehow placed

or left along the path of the items strewn on the perpetrator's

escape route from the home adjacent to the stolen items, the

fact finder could conclude that this was not a reasonable

inference or possibility. Stated differently, the reasonable

inferences supporting the defendant's guilt do not "rest in

surmise, conjecture, or guesswork" (citation omitted). Lopez,

484 Mass. at 216. Again, this stands in sharp contrast to the

cases upon which the defendant relies. In those cases, it was

"at least equally plausible that the defendants had touched the

items at some other place and time, and that someone else later

transported the items to the crime scene." Cuba, supra at 264-

266 (distinguishing Anitus and Morris, and noting that,

"[a]lthough it is possible to imagine that the defendant

randomly happened upon the victim's car somewhere in Springfield

in the days prior to the crime and intentionally or accidentally

touched the frame of the driver's side door, this is not a

7 As we have noted, in his interview with Detective Ramos,
the defendant denied being in Leominster in March of 2019.
13

reasonable possibility"). See Anitus, 93 Mass. App. Ct. at 109

n.11, quoting State v. Freeman, 269 S.W.3d 422, 425 (Mo. 2008)

(sufficient basis in Freeman for inference that defendant was

present in victim's apartment where defendant's DNA found on

piece of toilet paper underneath victim's body in her apartment,

and where "opposite inference -- that [d]efendant's DNA arrived

on the tissue in some innocent manner -- requires an unlikely

series of events"). See also Commonwealth v. Russell, 470 Mass.

464, 477 (2015) ("Proof beyond a reasonable doubt does not mean

proof beyond all possible doubt, for everything in the lives of

human beings is open to some possible or imaginary doubt").

In these circumstances, a rational trier of fact could have

found beyond a reasonable doubt that the defendant's DNA was

deposited on the latex glove during the commission of the

charged crimes. Accordingly, the evidence at trial was

sufficient to identify the defendant as the perpetrator of the

crimes.

Judgments affirmed.