Commonwealth v. Derek Lima.

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

23-P-784

COMMONWEALTH

vs.

DEREK LIMA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Derek Lima, was charged with one count of

receiving stolen property in violation of G. L. c. 266, § 60.

After the close of evidence in his jury trial, the defendant

moved for a required finding of not guilty, which the trial

judge denied. The jury then returned a verdict of guilty. The

defendant now appeals from his conviction, arguing that the

trial judge erred in denying his motion for a required finding

of not guilty, as the evidence was not sufficient to prove

beyond a reasonable doubt that he had the requisite knowledge

that the property was stolen. We affirm.

Background. Because the defendant challenges the

sufficiency of the evidence, we summarize the facts of this case

in the light most favorable to the Commonwealth. See

Commonwealth v. Martin, 447 Mass. 274, 287 (2006).
On November 12, 2015, the residence of Matthew Cross was

broken into and several items were stolen. Among the stolen

items were five electric guitars, jewelry, and electronics. One

of the stolen guitars was a 1979 Gibson Les Paul (Les Paul) that

was missing its pick guard and had other unique markings. The

Les Paul had an estimated value of approximately $2,000. After

the items were stolen, the police created a flyer with

descriptions of the stolen guitars and photographs of those

guitar models, which were distributed to pawn shops and music

stores in the area.

A week later, on November 19, 2015, the defendant brought a

1979 Les Paul to a pawn shop called Ideal Jewelry and Loan

(Ideal). The Les Paul was missing its pick guard. Ideal

offered a fifty dollar loan for the pawn of the guitar, which

the defendant accepted. Ideal created a customer data sheet for

the defendant, which included a photograph of him, a scan of his

identification, and his fingerprint. This customer data sheet

was connected to the pawn ticket that was generated for the pawn

of the 1979 Les Paul.

The defendant later1 returned to Ideal seeking to sell the

Les Paul he had previously pawned. Ideal offered the defendant

1 The owner of Ideal testified that the defendant returned
on November 25, 2015 to sell the Les Paul. However, the
detective who worked on the investigation testified that he did
not receive a phone call from Ideal until December 1, 2015, and

2
$186 for the Les Paul in addition to the previous fifty dollar

loan. The owner of Ideal testified at trial that he estimated

that the Les Paul was worth at least $2,000.

On that occasion, the defendant also attempted to pawn or

sell a second guitar.2 The owner of Ideal declined to accept the

second guitar, as he recognized it from the flyer of stolen

guitars he had been given by the police. Having recognized that

the Les Paul was also one of the guitars on the flyer, the owner

of Ideal contacted the police after the defendant left the store

on December 1, 2015. Mr. Cross later identified the Les Paul

that the police recovered from Ideal as the one that was stolen

from his residence.

Discussion. In analyzing whether there is sufficient

evidence to support a conviction, the "question is 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, 319 (1979). We review the

that he was told that the guitar had been sold to Ideal that
same day. The confusion regarding the exact date on which the
defendant returned to Ideal does not affect our decision.

2 We note that the defendant is not charged with respect to
this second guitar. Therefore, we consider his possession and
attempted pawn or sale of the second guitar only in the context
of the conviction relating to the Les Paul.

3
denial of a motion for a required finding of not guilty de novo.

Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013).

To convict a defendant of the crime of receiving stolen

property, the Commonwealth must prove beyond a reasonable doubt

that the defendant knew that the property was stolen.

Commonwealth v. Dellamano, 393 Mass. 132, 137-138 (1984), citing

Commonwealth v. Boris, 317 Mass. 309, 315 (1944). Because it

may not be possible to prove a defendant's knowledge by direct

evidence, the Commonwealth may prove knowledge "by inference

from all the facts and circumstances developed at the trial."

Dellamano, supra at 136-137, quoting Commonwealth v. Holiday,

349 Mass. 126, 128 (1965). As the jury were instructed without

objection, the Commonwealth may prove the knowledge element by

showing "that [the defendant] actually knew the property was

stolen or at least that he believed that it was stolen." See

Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 568-570 (2000).

The defendant argues that the Commonwealth did not present

sufficient evidence to prove beyond a reasonable doubt that he

knew the Les Paul was stolen. We disagree. We find that all

the facts and circumstances were sufficient to support an

inference by a rational juror of the defendant's knowledge that

the Les Paul was stolen. See id.

First, the timing of the defendant's pawn of the Les Paul

to Ideal tends to support an inference that the defendant knew

4
it was stolen. The guitars were stolen from Cross's residence

on November 12, 2015, and just one week later, on November 19,

2015, the defendant attempted to pawn the Les Paul that Cross

later identified as one of his stolen guitars. Our case law

establishes that, if a jury finds that a defendant was in

possession of recently stolen property, they are permitted to

draw the inference that the defendant knew the property was

stolen. See Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595,

600 (1988). "The inference permitted by possession of recently

stolen property can be a strong one." Id. While there is no

bright-line rule defining what "recently" means in this context,

given the evidence in this case, the passage of a mere one week

between the theft and the pawn of the Les Paul was a fact the

jury could have weighed in favor of the inference that the

defendant knew that it was stolen.

Second, the defendant was in possession of not just one,

but two of the stolen guitars, and he tried to sell or pawn the

second after he successfully pawned the first. On either

November 25 or December 1, 2015, the defendant returned to Ideal

with the second stolen guitar and attempted to pawn or sell it.

Although they were not required to, the jury could have

reasonably inferred that the defendant pawned the Les Paul first

to test the waters at this pawn shop and then, once that pawn

was successful, returned to attempt to sell the two guitars

5
outright. The second visit to Ideal and the possession and

attempt to pawn or sell a second stolen guitar also support the

inference that the defendant knew the Les Paul was stolen.

Finally, there was evidence at trial that the Les Paul was

worth significantly more than the $236 the defendant accepted

from Ideal for it. Cross estimated, based on online searches,

that the Les Paul was worth between $1,500 and $3,500 around the

time of trial. At the time of the theft, Cross had estimated

that the Les Paul was worth approximately $2,500. The owner of

Ideal testified that he expected that the Les Paul would sell

for a minimum of about $2,000. The defendant argues that the

pawn and sale of the Les Paul at a significant undervaluation

was not evidence of the defendant's knowledge that it had been

stolen because he did not request the fifty dollar pawn loan or

the additional $186 for the sale. Rather, he argues, Ideal

offered him a certain amount of money and he accepted it, not

knowing how much the Les Paul was actually worth. The defendant

relies on testimony that Ideal "like[s] to pay as little as

possible because that means more profit for [them]." Ideal's

owner also testified that the employee who interacted with the

defendant during both the pawn and the sale "was a very hard

negotiator." However, that testimony did not require the jury

to draw the inference that the defendant did not know the Les

Paul was stolen; the inference that the defendant accepted such

6
a low value rather than attempting to negotiate a higher price

because he knew the Les Paul was stolen remained reasonable.

The defendant asserts that he did not behave in a manner

consistent with knowledge that the Les Paul was stolen. For

example, there was no evidence that the defendant altered the

appearance of the Les Paul or attempted to remove the serial

number before pawning it, tried to hide his identity during the

pawning process providing identification and a fingerprint, or

had a history of dealing in stolen merchandise.

Although the jury could have credited these facts, they

were not required to. And while none of the facts we've

described above standing alone may have been sufficient to prove

the defendant's knowledge –- something we need not and do not

decide –- all the facts and circumstances of this case, when

viewed in the required light, are, taken together, sufficient to

7
support a conclusion beyond a reasonable doubt that the

defendant knew that the Les Paul was stolen.

Judgment affirmed.

By the Court (Rubin,
Englander & D'Angelo, JJ.3),

Clerk

Entered: June 27, 2024.

3 The panelists are listed in order of seniority.

8