Commonwealth v. Deenha J. Roma.

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-1097

COMMONWEALTH

vs.

DEENHA J. ROMA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the District Court, the

defendant, Deenha J. Roma, was convicted of larceny over $1,200. 1

On appeal, she contends that reversal is required because her

motion to dismiss for lack of probable cause and her motion for

a required finding of not guilty should have been allowed. We

affirm.

1 The defendant was charged under G. L. c. 266, § 30 (1), the
relevant portion of which provides: "Whoever steals, or with
intent to defraud obtains by a false pretence, or whoever
unlawfully, and with intent to steal or embezzle, converts, or
secretes with intent to convert, the property of another . . .
shall be guilty of larceny, and shall, if the property stolen is
a firearm . . . or, if the value of the property stolen exceeds
$1,200, be punished . . . ." By its terms, the statute renders
the misdemeanor crime of larceny a felony when the item stolen
is a firearm or when the value of the stolen property exceeds
$1,200. Here, it appears that the Commonwealth proceeded on the
"firearm" portion of the statute rather than the "exceeds
$1,200" portion. The defendant does not argue to the contrary
on appeal.
Background. We recite the facts delineated in the

application for complaint, including the police reports and

documentation filed in support thereof, in the light most

favorable to the Commonwealth. 2 Commonwealth v. Costa, 97 Mass.

App. Ct. 447, 449 (2020). The victim, Anthony Roma, owned and

resided at 47 Fremont Street in Taunton. His sister, Deenha

Roma, the defendant in this case, had also resided at that

residence, but was evicted from the premises by an order of the

Housing Court. The defendant, by virtue of the Housing Court

order, was obligated to remove all her belongings from the

residence and was not permitted to return. On December 31,

2018, the defendant entered the residence and removed several

items.

The victim returned to his home on January 1, 2019, and

noticed that his house was in disarray and several of his

belongings were missing. He further saw that the doorknob and

dead bolt lock to a basement closet door had been removed.

Within that closet, the victim kept his deceased father's

firearms including rifles, shotguns, and a "sawn-off shotgun."

He kept those items wrapped in a white cloth. The victim

contacted the Taunton Police Department and reported the alleged

theft. Officer Jeremy Derosier spoke to the victim and then

2 At trial the Commonwealth presented additional facts, some of
which are referenced in the discussion section infra.

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contacted the defendant. The defendant claimed that she only

removed items that belonged to her. Officer Derosier asked her

if she had removed a heavy item wrapped in a white sheet or

blanket. The defendant replied that she "did not." The

defendant "also noted that [the victim’s] belongings were and

always have been under constant lock and key," and she "does not

have access to [his] belongings due to this."

On January 2, 2019, following further investigation,

Officer Derosier went to the defendant's residence and advised

that he was looking for the large white package that contained

the guns. The defendant responded that she "did not know what

package [he] was referring to" but allowed him to look through

the apartment. Officer Derosier did so but was unable to locate

the items. The next day, January 3, 2019, Taunton Police

Detective Oliveira reported that he had received word from the

defendant that she had found the guns within her property.

Detective Oliveira retrieved the guns.

The victim filed an application for criminal complaint

against the defendant and, following a clerk-magistrate hearing,

a complaint issued charging the defendant with felony larceny

pursuant to G. L. c. 266, § 30(1). The defendant filed a motion

to dismiss the complaint for lack of probable cause. Following

a hearing a District Court judge (motion judge) denied the

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motion as to the larceny count. 3 After a subsequent jury-waived

trial 4 a judge (trial judge) found the defendant guilty of

larceny over $1,200. 5

Discussion. 1. Motion to dismiss. The defendant contends

that there was no evidence presented to the clerk-magistrate to

support a reasonable inference that she intended to steal the

guns, or to permanently deprive the victim of them, and thus the

motion judge erred in denying her motion to dismiss. The claim

is unavailing.

Where a clerk-magistrate has issued a criminal complaint, a

motion to dismiss “is the appropriate and only way to challenge

3 The defendant was also charged, on a separate docket, with
malicious destruction of property. The motion judge dismissed
that charge for lack of probable cause.
4 The trial transcript reflects that the facts adduced at trial

not only mirrored the facts stated in the police report, but
provided added support for the defendant's conviction.
5 Under the larceny statute, G. L. c. 266, § 30(1), the

Commonwealth must prove that a defendant took the personal
property of another without the right to do so, with the
specific intent to deprive the other of the property
permanently. See, e.g., Commonwealth v. Liebenow, 470 Mass.
151, 156 (2104). The statute further increases the penalty for
larceny to a felony where "the value of the property stolen
exceeds $1,200" or where the property stolen is a firearm. In
the present case, although not entirely clear, it appears that
the probable cause determination and conviction were predicated
on the property being a firearm. In any event, there is no
claim on appeal that the items did not constitute "firearms"
within the meaning of G. L. c. 266, § 30(1). Moreover, the
defendant does not challenge the aggravating element of the
felony larceny complaint or conviction; rather, the claim on
appeal is that the Commonwealth failed to prove the elements of
intent to steal and intent to deprive permanently.

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a finding of probable cause." Commonwealth v. DiBennadetto, 436

Mass. 310, 313 (2002). Ordinarily, "[a] motion to dismiss for

lack of probable cause 'is decided from the four corners of the

complaint application, without evidentiary hearing.'"

Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016),

quoting Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013).

But see G. L. c. 218, § 35A (granting clerk-magistrate

discretion to give "person against whom [a] complaint is

made . . . in the case of a complaint for a felony which is not

received from a law enforcement officer," an "opportunity to be

heard personally or by counsel in opposition to the issuance of

any process"). 6 "The complaint application must include

information to support probable cause as to each essential

element of the offense." Humberto H., supra at 565-566. Our

review of a judge's probable cause determination is a question

of law, which we review de novo. Id. at 566. We view the

information set forth in the complaint application "in the light

most favorable to the Commonwealth." Leonard, supra.

6 It appears that the clerk magistrate who issued the criminal
complaint may have held a hearing and heard witness testimony.
See G. L. c. 218, § 35A. However, in their appellate briefs
neither party references any evidence adduced at the clerk-
magistrate hearing. Moreover, at the hearing on the motion to
dismiss, the prosecutor advised the motion judge that he "would
rest on the police report." Accordingly, we confine our
analysis in the present case to the information contained in the
application for complaint and attached police report submitted
to the clerk-magistrate.

5
Probable cause "exists where the facts and

circumstances . . . [are] sufficient in themselves to warrant a

[person] of reasonable caution in the belief that an offense has

been . . . committed" (quotation omitted). Commonwealth v.

Coggeshall, 473 Mass. 665, 667 (2016). "Probable cause requires

more than mere suspicion, but it is considerably less demanding

than proof beyond a reasonable doubt" (quotation omitted). Id.

"When applying this standard we are guided by the factual and

practical considerations of everyday life on which reasonably

prudent [people], not legal technicians, act" (quotation

omitted). Id. Indeed, probable cause is a less demanding

standard than preponderance of the evidence. See Commonwealth

v. Preston P., 483 Mass. 759, 774 (2020) ("proof by a

preponderance of the evidence" is "a higher standard than

probable cause").

Here, the defendant was charged with felony larceny. See

note 5, supra. From the materials presented at the probable

cause hearing, the clerk-magistrate could have found that the

victim and defendant had a relationship involving recent

disagreement and hostility; that the victim was authorized to

take "her belongings out of the residence" and was not permitted

to return; that she knew that the victim's possessions were kept

under lock and key; that the doorknob and dead bolt to the

basement closet, where the victim kept his guns, had been

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removed; that the victim's guns were taken from that basement

closet without consent; and that the defendant possessed that

large heavy package of guns at her home. These facts, including

the removed doorknob and dead bolt and the ongoing hostilities,

would warrant a person of reasonable caution to believe that the

defendant broke into the closet (or directed someone to do so),

took the guns, and did so with the specific intent to deprive

the victim permanently of his property.

2. Required finding. The defendant also claims that the

evidence at trial was insufficient to prove that she had the

requisite intent to steal the guns or had the intent to

permanently deprive the defendant of them. We apply the

familiar Latimore test to determine "whether, after viewing the

evidence in the 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). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

"If, from the evidence, conflicting inferences are possible, it

is for the [factfinder] 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

Commonwealth v. Nelson, 370 Mass. 192, 203 (1976) (evidence need

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not require jury to draw inference; sufficient that evidence

permits inference to be drawn).

For the reasons discussed supra, the circumstantial

evidence at trial was more than sufficient to prove each element

of larceny. In addition to much of the evidence described

above, the judge heard added details at trial including but not

limited to: evidence regarding the agreement filed in the

Housing Court specifying that "[o]ther than washer-dryer all

items shall remain in basement being landlord's personal

property;" details of the litany of missing items after the

defendant vacated the home; and evidence that the defendant did

not have a key to access the guns. The defendant insists that

because Officer Derosier categorized the theft as a "civil

matter" in his police report, the present case should be treated

as such. While the present dispute could conceivably have been

suitably resolved outside the criminal arena, the defendant

cites to no authority that authorizes, much less compels,

dismissal for that reason. The victim applied for a criminal

complaint and, following a hearing, a clerk-magistrate found

probable cause and issued the criminal complaint as authorized

by G. L. c. 218, § 35A. Where the information presented to the

clerk-magistrate supported the determination of probable cause,

and where the evidence at trial supported the denial of the

8
motion for a required finding of not guilty, we are compelled to

affirm the judgment. 7

Judgment affirmed.

By the Court (Green, C.J.,
Neyman & Englander, JJ. 8),

Assistant Clerk

Entered: March 18, 2024.

7 The defendant also argues that the Commonwealth failed to
disprove her claim that she made an honest mistake in taking the
guns. In particular, she highlights the fact that the guns were
wrapped and that she ultimately returned them. While this
evidence supported her affirmative defense of honest mistake,
see Commonwealth v. Vives, 447 Mass. 537, 540-541 (2006), the
finder of fact was not obligated to credit her claim, especially
in view of the considerable circumstantial evidence described
above.
8 The panelists are listed in order of seniority.

9