Commonwealth v. Lys W. Vincent.

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

22-P-804

COMMONWEALTH

vs.

LYS W. VINCENT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury trial, the defendant appeals

from his convictions of burning a building, G. L. c. 266, § 2, and

breaking and entering with intent to commit a felony, G. L.

c. 266, § 18. We affirm.

1. The search warrant. The defendant first asserts that

evidence recovered from his car should have been suppressed,

because the search warrant for the car was not supported by

probable cause. Reviewing de novo and looking only to the four

corners of the search warrant affidavit, we conclude that the

motion was correctly denied. See Commonwealth v. O'Day, 440

Mass. 296, 297-298 (2003).

The defendant argued in his motion that the warrant

affidavit contained unlawfully obtained information. The motion
judge agreed that portions of the affidavit were based on an

unconstitutional search and interrogation but concluded that,

even after the unlawful portions of the affidavit were excised,

it still established probable cause for the search. Without the

unlawfully obtained information, the affidavit established the

following.

On September 24, 2017, Methuen firefighters responding to a

fire at a multi-use building reported a strong odor of gasoline.

They contacted police, who found that the fire was limited to a

room being used as a church. Police observed several areas of

charring on the carpet, forming an irregular burn pattern, and

they found burned pages from what appeared to be a Bible on the

floor next to the charred areas. Police also detected a strong

odor of gasoline, and a specially trained police dog detected an

accelerant in several spots on the carpet and on one of the

pews. As a result, police believed that the fire was set

intentionally by applying an open flame to ignitable liquid

vapors.

The next day, police obtained video surveillance footage

from another tenant in the building showing that a man in an

older model, dark-colored Toyota Camry with the partial license

plate number "921" arrived at the building at 9:53 P.M. on the

night of the fire. From the video, it appeared that he went

inside the building with a black bag, returned to his car at

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10:10 P.M. without the bag, and promptly left. A 911 call

reporting the fire was placed between one and three minutes

later.

Using the partial plate number, police ran a search in the

registry of motor vehicles database. It returned a potential

match for a dark blue 1998 Camry registered to Lys Walker

Vincent. A list of church members provided to police by the

pastors also showed a member named Walker Vincent. Upon

arriving at Vincent's registered address, police observed a dark

blue 1998 Camry with the Massachusetts license plate 6FM921.

Based on these facts, police sought a warrant to search the car

for evidence that someone intentionally set the fire at the

church.

Probable cause exists to issue a search warrant when the

affidavit contains "sufficient information for an issuing

magistrate to determine that the items sought are related to the

criminal activity under investigation, and that the items

reasonably may be expected to be located in the place to be

searched at the time the search warrant issues." Commonwealth

v. Wilson, 427 Mass. 336, 342 (1998). On appeal, the defendant

does not challenge that there was probable cause to conclude a

crime was committed, but he contends that the car's presence at

the scene was not enough to establish a nexus between the car

and the crime. We need not decide whether mere presence was

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enough to establish probable cause, however, because here there

was more. The timing of the car's arrival and departure in

relation to the time of the fire, the fact that the car was

registered to a church member, and the footage of the driver

apparently carrying into the building a bag that could have

contained the accelerant, went well beyond mere presence and

established a sufficient nexus between the car and the crime.

Accordingly, there was probable cause to issue the search

warrant, and the evidence found in the car -- including gasoline

residue on the passenger-side carpet -- was properly admitted at

trial.

2. Sufficiency of the evidence. The defendant next argues

that the evidence was insufficient to prove that he committed

either charged crime. 1 We review to determine "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, 318-319 (1979). "The

1 The defendant moved for a required finding of not guilty at the
close of the Commonwealth's evidence but did not renew the
motion at the close of all the evidence. Regardless, "a verdict
based upon legally insufficient evidence is inherently serious
enough to create a substantial risk of a miscarriage of justice,
so we review such claims without regard to the defendant's
procedural shortcomings." Commonwealth v. Williams, 63 Mass.
App. Ct. 615, 617 (2005).

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relevant question is whether the evidence would permit a jury to

find guilt, not whether the evidence requires such a finding."

Commonwealth v. Brown, 401 Mass. 745, 747 (1988). We bear in

mind that "arsonists are 'furtive criminals,' and thus can often

be brought to justice only by a 'web of circumstantial evidence'

that entwines the suspect in guilt beyond a reasonable doubt"

(citations omitted). Commonwealth v. Robinson, 34 Mass. App.

Ct. 610, 616-617 (1993).

To convict the defendant of burning a building under G. L.

c. 266, § 2, the Commonwealth was required to prove beyond a

reasonable doubt that he willfully and maliciously set fire to a

church or other building described by that statute. Proof of

the defendant's motive was not required. See Commonwealth v.

Borodine, 371 Mass. 1, 8 (1976), cert. denied, 429 U.S. 1049

(1977). See also Commonwealth v. McLaughlin, 431 Mass. 506, 513

n.6 (2000). To convict the defendant of breaking and entering

with intent to commit a felony under G. L. c. 266, § 18, the

Commonwealth was required to prove beyond a reasonable doubt

that he broke into and entered the church with the intent to

commit arson or another felony. 2 See Commonwealth v. Burton, 82

Mass. App. Ct. 912, 913 (2012).

2 The arson of which the defendant was convicted is a felony,
punishable by a State prison sentence. See G. L. c. 266, § 2.

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Here, there was evidence tying the defendant to the scene

at the time of the fire, including significantly more

surveillance video evidence than was described in the search

warrant affidavit. Witnesses positively identified the

defendant in a surveillance video from 8:38 P.M. that night

which showed him emerge empty-handed from a dark-colored Camry -

- which was registered to him -- wearing a T-shirt, shorts, and

flip-flops. The defendant reappeared in the footage just before

9 P.M., carrying some items with both hands, placing them in the

car's trunk, and driving away.

About an hour later, at 9:53 P.M., the footage showed

someone apparently wearing the same clothes arrive in what

appeared to be the same car. That person, who the jury could

reasonably infer was the defendant, got out of the car carrying

a black bag with something inside it and walked in the direction

of the building entrance. At 10:06 P.M., the defendant returned

to the car carrying an object that the jury reasonably could

have inferred was the black bag -- with little if anything

inside of it -- and put it in the front passenger area of his

car. The defendant then walked back again in the direction of

the building.

At 10:10 P.M., the defendant reappeared in the parking lot,

empty-handed, and drove away in his car. The fire alarm went

off at 10:12 P.M.

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From this evidence, the jury could reasonably infer not

only that the defendant was present when the fire started, but

that he hoped to escape before any firefighters or police

arrived. Contrary to the defendant's argument, the fact that

there were potentially innocent reasons for his presence at the

scene did not bar the jury from concluding that the suspicious

timing was evidence of his guilt. 3 See Commonwealth v.

Grandison, 433 Mass. 135, 141 (2001) ("The government need not

exclude every possible hypothesis embracing innocence to prove

its case"). Nor did the presence of other people at the scene

bar the jury from inferring that it was the defendant who

committed the crime. See Commonwealth v. Medeiros, 354 Mass.

193, 197 (1968), cert. denied, 393 U.S. 1058 (1969) ("That

another might have had the opportunity to do the act goes only

to the weight of the evidence").

The jury could also reasonably infer from the footage that,

on the defendant's first trip into the building, he removed some

items he wished to save; on his second trip, he left the

contents of the black bag inside the building but brought the

3 The jury could reasonably infer that the defendant was not, for
example, there in order to pick up other church members who were
returning from a church trip to Somerville. The defendant
parked in back of the church, while other church members had
parked in front of the church earlier that evening to gather for
the trip.

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bag back outside and put it in the car's front passenger area;

and on his third trip, he lit the fire. From the evidence that

gasoline residue was present on the car's passenger-side carpet,

the jury could infer that the black bag had contained gasoline. 4

The jury could also reasonably infer that the defendant

broke into and entered through the back door of the church, then

willfully and maliciously set a fire using the gasoline.

Photographs and police testimony showed that a window in the

back door leading to the church had been smashed from the

outside, and that force had been applied to a padlock and hasp

used to secure the door, allowing it to be opened. 5 Photographs

also showed irregular and unconnected fire damage to several

4 Although the defendant argues that the jury could not
reasonably infer anything significant from the presence of
gasoline in a gasoline-powered car, the weight to give this
evidence was for the jury to decide. Even if one might expect
there to be traces of gasoline in the car wholly apart from the
commission of any crime, it was still reasonable and possible to
infer that the defendant transported the gasoline in his car,
brought it into the church inside the black bag, used it to
start the fire, and then brought the bag back to his car. "An
inference, if not forbidden by some rule of law, need only be
reasonable and possible; it need not be necessary or
inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341
(1977).

5 The defendant argues that the evidence of breaking and entering
was insufficient because there was evidence that a door in the
vestibule was broken sometime before 6 P.M., long before he was
seen in the security video. This argument misunderstands the
Commonwealth's case, which relied on the breaking of the back
door to the church, not the vestibule door to which the
defendant refers.

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pews, chairs, and areas of carpet within the sanctuary. A State

police investigator testified that in his expert opinion, "to a

reasonable degree of fire certainty," the fire was likely set

intentionally using "ignitable liquid vapors," and testing from

samples of the church's carpet confirmed that gasoline residue

was present. Further evidence that the perpetrator acted

willfully and maliciously included the burning of the altar, the

torn pages of a book present on the floor, and the broken window

and hasp on the back door.

Finally, the malicious nature of the crime could have

suggested to the jury that the perpetrator had a personal

connection to the church, and the jury could have inferred that

the defendant was such a person. He was an active member of the

church who had a close relationship with at least one of the

pastors for at least one year before the fire. Despite their

relationship, and despite the fact that virtually every other

member contacted the pastor after the fire, the defendant never

called to express concern.

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In sum, the evidence was sufficient to convict the

defendant of both crimes.

Judgments affirmed.

By the Court (Wolohojian,
Desmond & Sacks, JJ. 6),

Clerk

Entered: December 8, 2023.

6 The panelists are listed in order of seniority.

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