Commonwealth v. Bankert

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20-P-1299 Appeals Court

COMMONWEALTH vs. STEVEN R. BANKERT.

No. 20-P-1299.

Worcester. April 6, 2023. – August 14, 2023.

Present: Vuono, Rubin, & Englander, JJ.

Unlawful Use of Gas. Gas. Practice, Criminal, Instructions to
jury, Presumptions and burden of proof, New trial.
Evidence, Presumptions and burden of proof, Expert opinion.
Witness, Expert. Constitutional Law, Burden of proof. Due
Process of Law, Burden of proof.

Indictments found and returned in the Superior Court
Department on July 25, 2013.

The cases were tried before Richard T. Tucker, J., and a
motion for a new trial, filed on August 16, 2019, was heard by
David Ricciardone, J.

Steven R. Bankert, pro se.
Gabriel T. Thornton, Assistant Attorney General, for the
Commonwealth.

ENGLANDER, J. After a jury trial in the Superior Court,

the defendant was convicted on ten indictments charging him with

willful injury to or interference with a gas meter, G. L.

c. 164, § 126, and six indictments charging him with larceny of
2

property valued at over $250, G. L. c. 266, § 30. Both sets of

convictions arose from the discovery of damaged gas meters at

laundromats operated by the defendant; the Commonwealth's theory

at trial was that the defendant had caused the damage to avoid

paying for the full amount of gas that the laundromats used.

On appeal, the defendant primarily challenges a jury

instruction that stated that if the Commonwealth proved that

there was a damaged gas meter at the defendant's business (and

the business had been receiving gas for thirty-one days or

more), this constituted "prima facie evidence" that the business

had created the damage, with the intent to defraud. The

defendant argues that the instruction violated his due process

rights by altering the Commonwealth's burden of proving each

element of the crime. Although a portion of the judge's prima

facie evidence instruction was taken directly from G. L. c. 164,

§ 126, the judge went on to instruct the jury that they "must

consider th[e] conclusion that the business created the existing

condition," but that they were "not bound by that conclusion"

"if believable evidence to the contrary ha[d] been introduced."

We agree that the instruction given here, in toto,

impermissibly shifted the burden of proof as to essential and

contested elements of the crime. A reasonable jury could have

understood the instruction as requiring them to conclude, upon

proof that the gas meters had been damaged, that the defendant's
3

business (under the circumstances, the defendant)1 (1) caused the

damage (2) with the requisite intent, unless the defendant

presented "believable" contrary evidence. Although other

portions of the charge correctly instructed the jury on the

Commonwealth's burden of proof and also emphasized that the

defendant was presumed innocent, under the governing case law

those additional instructions cannot be found to have

sufficiently neutralized the error. Furthermore, although the

Commonwealth's evidence was strong, we cannot conclude that the

error was harmless beyond a reasonable doubt; the pivotal issue

at trial was whether the damage was caused by the defendant, or

some other natural or unnatural cause, and the instruction told

the jury to "conclude" that the defendant had caused it.

Although this mandatory presumption was rebuttable by

"believable evidence to the contrary," we cannot say that the

shifting of the burden of proof did not play a role in the

jury's verdicts.

The defendant also contends that the Commonwealth's lay

witnesses offered improper expert opinion testimony. Because

1 Under the circumstances, the statutory presumption that
the "business" created the damage was equivalent to a
presumption that the defendant created the damage, as there was
no evidence or argument regarding other persons involved with
the laundromats.
4

these evidentiary issues could well arise in any retrial, we

address them briefly at the end of this opinion.

Background. We summarize the facts the jury could have

found, reserving some details for later discussion. The

defendant operated six laundromats in four different locations:

one in Lawrence, two in Attleboro, one in Brockton, and two in

Worcester.2 The defendant was responsible for the utilities at

each location. Columbia Gas (Columbia) furnished gas to the

Lawrence location, the two Attleboro locations, and the Brockton

location. Another company, NStar, serviced the two Worcester

locations. Gas usage was measured by gas meters located at each

of the six sites.

In July 2013, a grand jury returned twenty-two indictments

against the defendant. As relevant here, ten of the indictments

charged the defendant with willful injury to or interference

with a gas meter, and six charged him with larceny over $250.

As indicated, the Commonwealth's theory was that the defendant

damaged meters at each of the six laundromats, in order to

decrease his gas costs. In doing so, the defendant also

allegedly committed larceny, by obtaining gas without paying for

it. The Commonwealth's evidence was circumstantial; it sought

2The parties stipulated at trial that "[t]he defendant
operat[ed] [the] six laundromats at issue here pursuant to
management agreement/leases."
5

to prove its case by pointing to (1) the similar and uncommon

nature of the damage to the meters, (2) decreases in measured

gas usage that corresponded to the time periods when the

defendant was managing the locations, and (3) the defendant's

motive to decrease his gas costs.

For example, witnesses testified that Columbia replaced gas

meters at the defendant's Lawrence laundromat three times over

the course of the defendant's operation, which lasted from

February of 2009 to May of 2011. Each of the three replacements

occurred because the meters were registering lower than expected

gas usage. An inspection of the meter replaced in May of 2011

revealed damage to what is known as the "security wire," as well

as missing and misplaced screws, and damaged or missing

components within the so-called meter "head."3 There was similar

testimony concerning gas usage histories and meter replacements

at the defendant's other laundromats. Specifically, there was

testimony establishing that the meters at each laundromat were

replaced multiple times during the defendant's operation, and

that the replacements generally occurred because the meters were

registering low gas usage, or no gas usage at all. The evidence

3 As one of the Commonwealth's witnesses explained, gas
meters have both a "body" and a "head" or "index." The "body"
is what the gas flows through, and the "head" is a "measuring
device" screwed to the body that "indicates the consumption of
how much gas [one is] using." The "security wire" is attached
to both components and is meant to "prevent tampering."
6

also tended to show that several of the meters removed from the

defendant's other laundromats were damaged in ways similar, but

not identical, to the meter from the Lawrence location. For

instance, multiple meters were missing their security wires, had

damaged or misplaced screws, or contained damaged components

within the meter head (or were missing components altogether).4

To establish the above, the Commonwealth called several

Columbia and NStar employees who had either inspected the

laundromats and gas meters at issue or were familiar with the

gas usage and billing histories of the laundromats. The

witnesses included, for example, two employees who installed,

inspected, and serviced gas meters. These witnesses testified

principally about their own observations, including their

observations concerning damage to the meters. Although the

witnesses were not proffered as experts, they also testified (1)

about gas meters generally, including the components of the

meters and their operation, (2) that, in the witnesses'

experience, the types of damage at issue were not particularly

4 There was also evidence that gas usage at some of the
laundromats increased briefly upon replacement of some of the
gas meters, before decreasing again, where examinations of the
replacement meters revealed similar signs of damage.
7

common, and (3) that some of the damage could have resulted in

erroneously low usage readings.5

The defendant's trial defense focused on the lack of direct

proof that he had caused the damage. On cross-examination, for

example, defense counsel elicited concessions that the meters

were not all damaged in the same way; that some of the damage

was not uncommon; and that the gas companies did not explore

whether they had installed the meters correctly. The

defendant's sole witness, a forensic engineer and accident

reconstruction expert, also testified about potential

alternative causes of the damage, including (1) debris in the

meter system, (2) the meters being improperly sized for the

locations, or (3) what the witness explained as "impulse

loading." The defendant's expert also testified that Columbia

and NStar did not investigate the possible causes that he

identified, and that neither company maintained the meters

according to manufacturer recommendations.

5 The defendant objected to the bulk of this testimony, both
prior to trial and at trial, contending that the witnesses were
providing improper expert testimony, and lay opinion testimony
on the "ultimate issue." Although the trial judge granted the
defendant's pretrial motions in limine insofar as they related
to the Commonwealth's witnesses providing "expert opinion
testimony" and using "such language as tampering," the judge
mostly overruled the defendant's trial objections. The
defendant argues these same evidentiary objections on appeal, an
issue we discuss infra.
8

At the close of evidence, the judge instructed the jury on

the elements of willful injury to or interference with a gas

meter, as well as the elements of larceny. As to the gas meter

injury charges, the judge gave the prima facie evidence charge

that is at issue here. We have numbered the paragraphs for ease

of reference:

(1) "The existence of any injury, disconnection,
removal, interference with regard to a gas meter or
attachment shall be prima facie evidence that a commercial
or industrial business to which such gas is at the time
being furnished by such meter or attachment for thirty-one
days or more has, with intent to defraud, created the
conditions so existing."

(2) "By 'prima facie evidence', we mean, first, that
you must consider this conclusion that the business created
the existing condition unless some evidence which you find
believable is introduced to the contrary."

(3) "Secondly, if believable evidence to the contrary
has been introduced, then you are not bound by that
conclusion and you are free to make your own decision.
However, you may consider such evidence, give it whatever
weight you feel is appropriate in your deliberations; and
in reaching a verdict, you may take it into account as you
see fit, along with all the other evidence in this case,
and any reasonable inferences that you draw from the
evidence."

(4) "Prima facie evidence does not relieve the
[C]ommonwealth of the burden to prove the charges beyond a
reasonable doubt."

Defense counsel objected, arguing that the instruction

"improperly shift[ed] the burden toward the defendant." The
9

judge did not rule on the objection, and the jury were sent to

deliberate.6

The jury returned guilty verdicts on all counts, and the

defendant timely appealed. While that appeal was pending, the

defendant filed a motion for a new trial, claiming ineffective

assistance of his trial counsel, and appellate proceedings were

stayed pending disposition of that motion.7 The defendant's

motion was denied, the defendant appealed, and his two appeals

were consolidated for our consideration.

Discussion. 1. Jury instruction. The defendant attacks

the prima facie evidence instruction as violative of due

process, claiming (1) that the connection between proof of the

initial fact (damage to meters) and the facts that the jury were

allowed to infer therefrom (that the defendant created the

damage with the requisite intent) was not sufficiently strong,

and (2) that the instruction (paragraphs 1-3) resulted in an

6 However, the judge added paragraph 4 of the charge, supra,
in response to the defendant's prior objection to the
instruction.

7 The motion argued, among other things, that the
defendant's trial counsel rendered ineffective assistance
because counsel had (unsuccessfully) sought to withdraw as the
defendant's trial counsel, and in that context (1) had revealed
privileged information to the trial judge, (2) had
misrepresented to the trial judge that the defendant had been
noncommunicative with them, and (3) had not sought the trial
judge's recusal based on the "negative opinion" that the judge
had allegedly developed toward the defendant.
10

impermissible, mandatory rebuttable presumption on an essential

element of the crime.

a. Prima facie evidence designation. Although both

arguments identified above have their source in the

constitutional right to due process, the issues are analytically

distinct. The first issue is whether the prima facie evidence

instruction given in paragraph 1 of the judge's charge, standing

alone, sets forth a lawful permissive inference under

Massachusetts and Federal case law. Paragraph 1 is taken

directly from the statute defining the crime of willful injury

or interference with a gas meter. See G. L. c. 164, § 126.8

Such an instruction must pass a constitutional test -- the jury

may not be instructed that certain facts constitute "prima facie

evidence" of other facts unless there is "a strong, logical

connection between the two [sets of] facts to ensure that the

defendant receives the full benefit of the reasonable doubt

standard." Commonwealth v. Littles, 477 Mass. 382, 386 (2017).

8 General Laws c. 164, § 126, provides, in relevant part:

"The existence of any of the conditions with reference to
meters or attachments described in this section shall be
prima facie evidence that a . . . business entity . . . to
whom such gas is, at the time, being furnished . . . has,
with intent to defraud, created or caused to be created
. . . the condition so existing; provided, however, . . .
that the prima facie evidence referred to in this paragraph
shall not apply to any . . . business entity . . .
furnished with gas for less than thirty-one days . . . ."
11

We pause to consider what is meant by an instruction that

certain facts, if proved, constitute "prima facie evidence" of

another fact -- usually, an element of the crime. Such an

instruction was addressed most recently in Littles. "In

criminal cases in the Commonwealth, when the Legislature

designates 'evidence "A" [to be] prima facie evidence of fact

"B," then, in the absence of competing evidence, the fact finder

is permitted but not required to find "B" beyond a reasonable

doubt'" (emphasis added; citation omitted). Littles, 477 Mass.

at 386. "The designation of prima facie evidence in this

context is 'structurally the same as' a 'permissive inference,'"

which, when used properly, does not "alter the Commonwealth's

substantive burden of proof" (citations omitted). Id. Here,

paragraph 1 of the judge's prima facie evidence instruction told

the jury that if (1) there was "any injury . . . with regard to

a gas meter," then (2) this constituted "prima facie evidence"

that the business to which gas was being supplied (a) created

the damage with (b) the intent to defraud. Standing alone, this

presented the jury with a permissive inference, thereby raising

the question whether there existed a sufficiently "strong,

logical connection between the two [sets of] facts." Id.

The Supreme Judicial Court and the United States Supreme

Court have addressed this question on a number of occasions,

with some cases holding that the inferential connection was
12

sufficiently strong, and others holding that it was not. See,

e.g., County Court v. Allen, 442 U.S. 140, 142, 163 (1979)

(statutory instruction that "presence of a firearm in an

automobile [wa]s presumptive evidence of its illegal possession

by all persons [in] the vehicle" was "rational" "as applied to

the facts of th[e] case"); Barnes v. United States, 412 U.S.

837, 838, 845-846 (1973) (not improper to "infer[] from

unexplained possession of recently stolen mail that the

defendant [knew] that it was stolen," where inference was

supported by "evidence," by "common sense," and by

"experience"); Tot v. United States, 319 U.S. 463, 466-468

(1943) ("no reasonable ground for a[n] [inference] that [the]

purchase or procurement [of a gun] was in interstate rather than

in intrastate commerce"). See also Commonwealth v. Pauley, 368

Mass. 286, 291 (1975) (sufficient connection between proof of

registered owner of motor vehicle and inference that such owner

was operating that vehicle at time it avoided toll).

Most recently, in Littles, the Supreme Judicial Court

addressed a statutorily prescribed inference, providing that (1)

"the act of 'making, drawing, uttering or deliver[ing] . . . a

check'" that went unpaid due to insufficient funds constituted

(2) "prima facie evidence of intent to defraud and of knowledge

of insufficient funds," unless (3) "the maker or drawer . . .

paid the holder . . . within two days after receiving notice
13

that such check . . . has not been paid." Littles, 477 Mass. at

385, quoting G. L. c. 266, § 37. The Littles court concluded

that there was not a sufficiently "strong[], rational connection

between a defendant's failure to correct a bad check within two

days of notice and the defendant's knowledge and intent,"

because "'the combination of natural chance and absence from the

evidence of an explanation consistent with innocence' d[id] not

prove the two inferred facts beyond a reasonable doubt"

(citation omitted). Id. at 388. The court went on to conclude,

however, that the error was harmless beyond a reasonable doubt

because "[t]he overwhelming evidence demonstrated that the

defendant knowingly with the intent to defraud . . . wrote

checks that drew funds from a long-closed account." Id. at 391.

Focusing only on paragraph 1 of the judge's instruction, in

this case the statutory "prima facie evidence" instruction the

judge gave satisfied the connection required by the case law.

Admittedly, the standard for evaluating the necessary connection

is elusive in the cases. It has been variously described "as a

'rational connection,' a connection that is 'more likely than

not,' and as a connection that leaves no 'reasonable doubt.'"

Littles, 477 Mass. at 387, quoting Barnes, 412 U.S. at 841-843.

But here the defendant does not make a facial challenge to the

statute's designation of prima facie evidence; rather, his

objection to the instruction comes in the context of the facts
14

of this case. See County Court, 442 U.S. at 162-163 (cases

deciding "validity of permissive statutory presumptions . . .

have rested on an evaluation of the presumption as applied to

the [factual] record" and "[n]one suggests that a court should

pass on the [facial] constitutionality of this kind of

statute"). And under any of the above standards, here there is

a sound connection between fact "A" -- that meters connected to

the defendant's businesses suffered damage -- and facts "B" --

that the defendant created that damage with the intent to

defraud. The inference itself is rational; the meters were on

the property of the business and thus the business had the

access (as well as the motivation to reduce costs).9 And here

the evidence established that multiple meters attached to each

of the defendant's six laundromats were damaged over the course

of his operation, and that at least some of that damage was

relatively rare absent some sort of intentional tampering.

There was no constitutional infirmity in the instruction of

paragraph 1, standing alone.

b. Permissive inference versus mandatory presumption.

That is not the end of the matter, however, because the four

paragraphs of the instruction, in toto, presented the jury with

9 Nor should we lose sight of the fact that the inference
has been directed by the Legislature. See Commonwealth v.
Maloney, 447 Mass. 577, 590 (2006) ("Subject to constitutional
limits . . . the Legislature is free to make such judgments").
15

a mandatory rebuttable presumption, not merely the permissive

inference contemplated by G. L. c. 164, § 126.

The problem of the mandatory (although rebuttable)

presumption has been addressed by the United States Supreme

Court several times, perhaps most notably in Francis v.

Franklin, 471 U.S. 307 (1985). The Court there explained that

"[a] mandatory rebuttable presumption . . . relieves the State

of the affirmative burden of persuasion on [a] presumed

element," and thus violates due process, "by instructing the

jury that it must find the presumed element unless the defendant

persuades the jury not to make such a finding" (emphasis added).

Id. at 317. In Francis, the challenged instruction stated:

"The acts of a person of sound mind and discretion are
presumed to be the product of the person's will, but the
presumption may be rebutted. A person of sound mind and
discretion is presumed to intend the natural and probable
consequences of his acts but the presumption may be
rebutted."
Id. at 315. The Court concluded that the instruction violated

the defendant's due process rights, because it "created an

unconstitutional burden-shifting presumption with respect to the

element of intent." Id. at 318. This because "a reasonable

juror could . . . have viewed" the instruction as "requir[ing]

[them] to infer intent to kill as the natural and probable

consequence of the [defendant's] act of firing [a] gun unless

the defendant persuaded the jury that such an inference was

unwarranted" (citation omitted). Id. at 316-318.
16

The Supreme Judicial Court applied Francis in Commonwealth

v. Medina, 430 Mass. 800 (2000). There, the court held that

"[a] reasonable juror could have understood" the malice

instruction at issue as requiring the jury to presume malice and

improperly "shift[ing] to the defendant the burden of

disproving" same. Id. at 804. The Medina court applied a

"three-step framework" for analyzing errors of this kind.

Commonwealth v. Harris, 101 Mass. App. Ct. 308, 314 (2022).

First, we consider whether the "specific portion of the jury

charge, considered in isolation, could reasonably have been

understood as creating a presumption that relieves the State of

its burden of persuasion on an element of an offense" (citation

omitted). Harris, supra at 314.10 If so, then second, we view

the instruction "'in the context of the charge as a whole' to

determine whether '[o]ther instructions might explain the

particular infirm language' and thereby prevent a reasonable

10 In Medina, the court confirmed that the Massachusetts
standard is "whether a 'reasonable juror could have used the
instruction incorrectly," derived from Francis, and explained
that the standard is more favorable to a defendant than the
current Federal standard of "whether there is a 'reasonable
likelihood' that jurors applied the challenged instruction in a
way that violates the Federal constitution" (emphasis added).
Medina, 430 Mass. at 804 n.4. See Boyde v. California, 494 U.S.
370, 378-380 (1990) (recognizing departure from Francis
standard). See also Estelle v. McGuire, 502 U.S. 62, 72 n.4
(1991) (describing Boyde as "considering and rejecting standards
that required examination of either what a reasonable juror
'could' have done or 'would' have done").
17

juror from applying an unconstitutional presumption" (citation

omitted). Id. Third, if the instruction fails this inquiry, we

may nonetheless affirm if the "error was harmless beyond a

reasonable doubt." Id.

As to the first step, here we have little doubt that a

reasonable jury could have understood the prima facie evidence

instruction to constitute a mandatory rebuttable presumption

concerning the source of the meter damage and the defendant's

intent. See Medina, 430 Mass. at 804 & n.4. The error occurs

in paragraphs 2 and 3 of the judge's prima facie evidence

instruction. After the judge gave the instruction from G. L.

c. 164, § 126, in paragraph 1, the judge stated:

(2) "By 'prima facie evidence', we mean, first, that
you must consider this conclusion that the business created
the existing condition unless some evidence which you find
believable is introduced to the contrary" (emphasis added).

(3) "Secondly, if believable evidence to the contrary
has been introduced, then you are not bound by that
conclusion and you are free to make your own decision"
(emphasis added).11
These second and third paragraphs were "cast in the

language of command," Francis, 471 U.S. at 316, telling the jury

that they "must consider th[e] conclusion that the business

11 The record does not reveal the source of the instructions
in paragraphs 2 and 3. Neither party requested the
instructions. Although the judge provided the charge to counsel
in written form before he gave it, and the defendant objected,
there was little substantive discussion of paragraphs 2 and 3
during the charge conference.
18

created the existing condition" (emphasis added). The

instruction then indicated to the jury that they were "bound" by

that "conclusion" -- "that the business created the existing

condition" -- and were not "free" to decide otherwise "unless

some evidence which you find believable is introduced to the

contrary." In toto, paragraphs 1 through 3 "indicated to a

reasonable juror that the defendant bore an affirmative burden

of persuasion once the State proved the underlying act giving

rise to the presumption." Francis, supra at 318. The effect,

then, was to "relieve[] the [Commonwealth] of the affirmative

burden of persuasion" with respect to the defendant's causation

of the damage with the requisite intent. Id. at 317.

We next must consider whether the remainder of the charge

explained this language in a way that could have "prevent[ed] a

reasonable juror from applying [the] unconstitutional

presumption." Harris, 101 Mass. App. Ct. at 314. Here there

were other portions of the charge that bore on the question; for

example, the judge instructed the jury on the Commonwealth's

burden of proof and the presumption of innocence, and that

"[p]rima facie evidence does not relieve the [C]ommonwealth of

the burden to prove the charges beyond a reasonable doubt." The

judge also instructed that "[i]t is not up to the defendant to

prove that he is innocent."
19

The case law, however, has not found such general

instructions concerning the prosecution's burden sufficient to

cure the error introduced by a mandatory rebuttable presumption.

In Francis, for example, the jury also had been instructed on

the State's burden of proof, see 471 U.S. at 319-320, and had

specifically been instructed that there was "no burden on the

defendant to prove anything," id. at 329-330 (Powell, J.,

dissenting). The Court nevertheless ruled that such "general

instructions . . . d[id] not dissipate the error," because

"[the] jury could have interpreted the two sets of instructions

[together] as indicating that the presumption was a means by

which proof beyond a reasonable doubt as to intent could be

satisfied" (citation omitted). Id. at 319-320. And in

Commonwealth v. Repoza, 400 Mass. 516, 520, cert. denied, 484

U.S. 935 (1987), the Supreme Judicial Court said that, in light

of Francis, a reviewing court should be looking for "some other

portion of the charge [that] not only contradicts the incorrect

language but, through explanation, harmonizes it with the entire

charge as well." See Harris, 101 Mass. App. Ct. at 321-322.

There was no such harmonization in the charge here.

Because a reasonable juror could have understood the

instruction in a constitutionally infirm manner, our final

inquiry is "whether that error was harmless beyond a reasonable

doubt." Medina, 430 Mass. at 802. There is a two-step
20

framework for addressing this question, set forth in Yates v.

Evatt, 500 U.S. 391 (1991), and applied by our Supreme Judicial

Court in Medina, supra. The first step is to "determine what

evidence the jury actually considered" when it applied the

presumption, because some "presumption[s] so narrow the jury's

focus as to leave it questionable that [the jury] would look to

anything but the evidence establishing the predicate fact . . .

to infer the fact presumed" (citation omitted). Medina, supra

at 803. Here, however, the jury's focus was not so limited;

they were instructed to "consider" any evidence contradicting

that the defendant caused the damage with the requisite intent.

We therefore review all the evidence in evaluating whether the

instruction was harmless. See Yates, supra at 404, 409.

At the second step of the harmless error analysis, we ask

"whether the force of th[at] evidence . . . is so overwhelming

as to leave it beyond a reasonable doubt that the verdict . . .

would have been the same in the absence of the presumption."

Yates, 500 U.S. at 405. We cannot so conclude under the

circumstances here. First, the source of the damage was the

principal contested trial issue. See, e.g., Commonwealth v.

Zezima, 387 Mass. 748, 754-755 (1982) (presumption of malice not

harmless because "malice was . . . the pivotal [trial] issue");

Commonwealth v. Palmer, 386 Mass. 35, 37 (1982) (similar).

Second, the Commonwealth did not offer direct evidence that the
21

defendant caused the damage but rather asked the jury to infer

same. Although the Commonwealth's evidence was certainly very

powerful, nothing directly tied the defendant to the damage,

leaving the defendant with a time-tested jury argument. And the

defendant introduced evidence that the damage could have

occurred in other ways, suggesting that the Commonwealth's

witnesses had not ruled out such alternative causes. See

Commonwealth v. Rembiszewski, 391 Mass. 123, 135 (1984)

(constitutional error in jury charge not harmless where

"Commonwealth presented a case based on circumstantial evidence

which did not compel a conclusion of guilt" and "[t]he defendant

presented evidence that reasonably would have permitted the

[opposite] conclusion"). In light of this competing evidence,

and considering that the jury could have viewed the instruction

to place an affirmative burden on the defendant to disprove his

involvement, we cannot conclude "that the presumption did not

contribute to the verdict rendered." Yates, supra.

Based on the foregoing, the defendant's convictions of

willful injury to or interference with a gas meter cannot stand.

Moreover, given the nature of the erroneous instruction here, we

are constrained to conclude that the larceny convictions also

must be vacated. Cf. Palmer, 386 Mass. at 38 (concluding

similarly). One of the elements of larceny is intent -- that

is, "inten[t] to deprive the owner of the property permanently."
22

Here, the jury were charged that they must conclude that the

defendant damaged the meters "with intent to defraud," "unless

some evidence which you find believable is introduced to the

contrary." Inasmuch as the larceny charges arose out of the

same alleged conduct -- that is, damaging the meters so as to

obtain gas without paying for it -- we cannot say that the

improper presumption did not impact the larceny verdicts.

Accordingly, we vacate the defendant's convictions on both sets

of charges, and remand the matter to the trial court.12

2. New trial issues. Resolving the case as we do, we

touch briefly on issues that may arise in the event of a new

trial; specifically, (1) whether the Commonwealth's lay

witnesses were improperly allowed to testify about "the

operation of, and damage to, the gas meters," and (2) whether

those witnesses offered lay opinion testimony on the "ultimate

issue" that the meters had been "tampered" with.13 On these

points, we note the following principles.

12We decline the defendant's request to reverse his
convictions, rather than to vacate the convictions and remand
the matter for a new trial. The defendant has not challenged
the sufficiency of the evidence, and we have not reversed on
that basis. See Commonwealth v. Sanchez, 485 Mass. 491, 507 &
n.9 (2020). Where the error was that the jury was improperly
instructed on the law, a remand is appropriate. See id. at 506-
507.

13Because we do not anticipate that the ineffective
assistance of counsel issues that the defendant raises will
arise on remand, we do not address them. See note 7, supra.
23

First, the bulk of the testimony from the gas company

employees consisted of their own observations, and witnesses can

of course testify about observed facts. See Commonwealth v.

Huang, 489 Mass. 162, 176 (2022). Second, provided a proper

foundation is established, a witness can testify based on their

experience with a machine or with technology, including what

they have observed about how a machine is used or operates. The

technical nature of an item is not the touchstone for whether

expert testimony is necessary. See, e.g., Commonwealth v.

Bundy, 465 Mass. 538, 546-547 (2013) (expert testimony

concerning video-game system unnecessary). Instead, expert

testimony is ordinarily required when a witness offers an

opinion based on "scientific, technical, or other specialized

knowledge" (citation omitted), Commonwealth v. Gerhardt, 477

Mass. 775, 785 (2017), or when the "subject of the testimony 'is

beyond the common knowledge or understanding of the lay juror'"

(citation omitted), Bundy, supra at 546. See Onofrio v.

Department of Mental Health, 408 Mass. 605, 613 (1990) ("expert

testimony is not a prerequisite to a finding about matters that

are within ordinary human experience"). Third, "[a]n opinion is

not objectionable just because it embraces an ultimate issue,"

Mass. G. Evid. § 704 (2023), as long as the testimony does not

"provid[e] an opinion as to guilt or innocence," Commonwealth v.

Waller, 486 Mass. 72, 74 n.2 (2020).
24

With these principles in mind, it is nonetheless true that

some questions that the Commonwealth posed appeared to call for

opinions based upon technical or specialized knowledge. The

following two are examples:

Q.: "Going back to your visits to the defendant's
laundromats in May 2011, based on what you saw during those
visits, did you see anything on either meter that would
indicate possible tampering with those meters?"

". . ."

Q.: "What if anything happens to a[] [meter] index when
[its] magnet shaft drops down and disengages?"

". . ."

A.: "It can cause the gears to become disengaged,
resulting in less [gas] usage shown on the index."

These questions appear to have crossed the line into calling for

expert opinion. To the extent the Commonwealth attempts to

elicit similar testimony at any new trial, it might avoid these

issues by seeking to qualify its witnesses as experts.

Conclusion. The judgments are vacated, and the verdicts

are set aside. The matter is remanded to the Superior Court for

such further proceedings as may be appropriate.

So ordered.