Commonwealth v. Darren P. Devine.

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-906

COMMONWEALTH

vs.

DARREN P. DEVINE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged with a single count of larceny of

property valued over $1,200. After a jury trial, he was

convicted of the lesser included offense of larceny of property

valued under $1,200 (G. L. c. 266, § 30 [1]). On appeal he

argues that the evidence was insufficient to show "the specific

intent to deprive the [victim] of the property permanently," an

element of the crime. See Commonwealth v. St. Hilaire, 470

Mass. 338, 343 (2015).

In considering a defendant's challenge to the sufficiency

of the Commonwealth's evidence against him as presented at

trial, a reviewing court must 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).

Based on the testimony of the victim, the only witness at

trial, when viewed in that light, the jury could have found that

on the day of the crime, May 25, 2021, the victim was at home

watching television when the defendant, uninvited and without

knocking, came into her home from her patio through the sliding

door, which was unlocked. She knew the defendant, who had

assisted her handyman. The defendant was crying and bleeding

when he entered the victim's home uninvited. The victim "got up

off the couch and . . . had him sit down" in her living room.

They spoke for "[a]bout five minutes."

The defendant then requested a bottle of water. The victim

went to the kitchen, and retrieved a bottle of water from the

refrigerator. While in the kitchen, she "heard something fall."

When she "came back, [the defendant] was gone." A watch case

for her "diamond watch [that she] got from the Red Sox," was on

the floor. The watch had been displayed in the box on a shelf

"next to the TV." Although the victim recalled seeing the watch

prior to the defendant's arrival at her home, it, too, was gone.

She then called the police. She had not, as of the time of

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trial, May 31, 2023, seen the watch it again after hearing the

case fall and finding it on the floor.

This evidence is sufficient to support a finding of the

requisite intent to deprive the victim of the watch permanently.

"One who takes property without the authority of the owner and

so uses or disposes of it as to show indifference whether the

owner recovers possession may be found to intend to deprive the

owner of it permanently." Commonwealth v. Salerno, 356 Mass.

642, 648 (1970).

There was evidence that over 19 months after the watch was

taken, the victim saw the defendant at church. They discussed

the watch and the defendant insisted he only "borrowed" the

watch and did not "mean to steal" it. In arguing insufficiency,

the defendant relies on the victim’s testimony that it was her

then-current understanding that the defendant was just borrowing

the watch.1

The victim's understanding, though, does not render the

evidence insufficient. The jury, to begin with, was not

required to believe her testimony about her "understanding." In

any event the question is not her understanding of the

1 To the extent, if any, the defendant suggests the victim
meant it had always been her understanding - something
incompatible with her having called the police - he fails to
view the evidence in the light most favorable to the
Commonwealth.

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defendant's intent, but the defendant's intent itself. Even if

the victim believed the defendant's story told to her at church,

the jury were not required to believe it. Instead, the jury

could infer from all the evidence, including the events

described and the testimony that the defendant had admitted to

taking the watch and had not returned it at the time of trial,

that the defendant intended to deprive the victim permanently of

the watch.

Because there was sufficient evidence to support a finding

beyond a reasonable doubt of all elements of the offense, the

judgment is affirmed.

So ordered.

By the Court (Rubin,
Englander & D'Angelo, JJ.2),

Clerk

Entered: June 28, 2024.

2 The panelists are listed in order of seniority.

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