MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jessica Bruno, was charged with assault and battery on a household member, G. L. c. 265, § 13M, breaking and entering in the nighttime with the intent to commit a felony, G. L. c. 266, § 16, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). At trial, she moved for required findings of not guilty at the close of the Commonwealths case in chief and renewed her motion at the close of all evidence. These motions were denied, and the jury convicted her of assault and battery on a household member and breaking and entering in the nighttime with the intent to commit a felony. On appeal,
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the defendant argues that her motion for a required finding of not guilty as to the breaking and entering offense should have been granted because (1) there was insufficient evidence to show she intended to commit a felony, and (2) the Commonwealth failed to prove that she actually did commit a felony. Because we conclude that there was insufficient evidence to defeat the motion for a required finding of not guilty at the close of the Commonwealths case in chief, we reverse.
Background. We recite the evidence relative to the governments case in chief, viewing it, as we must, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant and victim began a casual
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romantic relationship in the spring of 2018, having met online. The start of their relationship followed the victims amicable separation from her fiancée in February of that year. The victim continued to reside with her ex-fiancée in Randolph, while the defendant lived in Boston. During the relationship, the defendant sometimes used the victims car, and the victim did laundry for the defendant at her apartment in Randolph.
The victim held a party at her apartment on or around April 20, 2018, which the defendant attended. The defendant was accompanied to the party by a man with whom she engaged in amorous behavior in front of the other partygoers. Feeling disrespected, the victim decided to end the sexual component of her relationship with the defendant. Nevertheless, the victim attempted to remain friends with the defendant by continuing text message and phone contact with her and by continuing to launder her clothing.
On the evening of April 29, 2018, at the victims request, the defendant arranged with the victim to drive to the victims apartment in Randolph to pick up some laundry she had left behind as well as a parking pass that she had loaned the victim. The victim fell asleep at around 11 p.m. while waiting for the defendants arrival. As a result, she did not receive text messages from the defendant announcing her arrival at the apartment complex. The defendant became irate, believing the victim was intentionally ignoring her. Upset by the apparent slight, she gained entrance into the internal area of the apartment complex, bypassing a lock on the front door, and began shouting and pounding on the victims apartment door.
The victims roommate overheard the pounding and woke the victim, who opened the door slightly to speak with the defendant. The defendant proceeded to muscle the door open and barge into the apartment. She repeatedly demanded the return of her laundry and parking pass.
After arguing for a while, the victim returned the defendants laundry to her but claimed not to know the location of the parking pass. The defendant refused to leave without the parking pass, and the two scuffled as the victim pushed her out of the apartment. During this time, the defendant struck the victim in the face. Shortly after the defendant left, the victim and her roommate heard the sound of car doors slamming and the victims car alarm. The two proceeded downstairs to the parking lot and discovered the defendant rifling through the victims car. She had opened all four doors and the trunk of the victims car, while her own car was parked nearby. The victim attempted to intervene by shouting at the defendant, at which time the victim observed the defendant grab two bags stuffed with assorted art supplies and documents from out of the victims car and bring them to the defendants car. The defendant then attempted to drive away while the victim chased after her, banging on the defendants car. The victim became tangled in the wheels of the defendants moving car and was run over, suffering serious injuries. The defendant and the victims roommate both called 911. Police and paramedics arrived shortly thereafter and transported the victim to the hospital.
As noted supra, at trial, the defendant moved for a required finding of not guilty at the close of the Commonwealths case and again at the close of all evidence as to all three offenses. In both instances, the defendant waived argument and rested solely on the “generally phrased” written motion which did not specify the crimes charged, the evidence admitted, or her specific theory regarding the sufficiency of the evidence as to the breaking and entering offense. The court denied the motion each time, and the jury subsequently found the defendant guilty of assault and battery on a household member and breaking and entering in the nighttime with the intent to commit a felony. The defendant timely appealed.
Discussion. 1. Motion preserved for review. The Commonwealth argues that the motion for a required finding at the close of the Commonwealths case was not preserved for review because the defendants motion was phrased generally. We disagree. A generally phrased motion may preserve the issue for review so long as the trial court was on notice as to the contested issue. See Commonwealth v. Fickett, 403 Mass. 194, 197 (1988) (generally phrased motion, though not ideal, preserved matter because issue sufficiently before court). See also Commonwealth v. Werner, 16 Mass. App. Ct. 686, 688-689 (1983) (when significant portion of trial focused on single issue, matter preserved for review even if motion did not explicitly state issue).
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To support its position, the Commonwealth relies on Commonwealth v. Berry, 431 Mass. 326, 331 (2000), which concluded that in a murder case “a generally phrased motion for directed verdict does not preserve for review the denial of the motion on a specific theory of liability when there was sufficient evidence to withstand the motion on an alternative theory” (emphasis in original). The argument is unavailing. As we discuss infra, the Commonwealth advanced only one theory of liability at trial with respect to the charge contested on appeal. For that reason, the trial court was on sufficient notice of the defendants concern with respect to the sufficiency of the evidence as to all charges at the close of the governments case. Werner, 16 Mass. App. Ct. at 688-689.
2. Sufficiency of the evidence. Because the sufficiency of the evidence is a question of law, we review the denial of a motion for required finding of not guilty de novo. Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013). “In determining whether the evidence was sufficient to survive a motion for a required finding, we 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.” Commonwealth v. Arce, 467 Mass. 329, 333 (2014), citing Latimore, 378 Mass at 677. Inferences that could have been reached by the jury must be both reasonable and possible. Commonwealth v. Chhoeut Chin, 97 Mass. App. Ct. 188, 195 (2020), citing Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016). Latimore, supra, quoting Commonwealth v. Sandler, 368 Mass. 729, 740 (1975), requires more than that the evidence merely be “sufficient ․ to permit the jury to infer the existence of the essential elements of the crime charged.” “Additionally, the evidence and the inferences permitted to be drawn therefrom must be ‘of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.’ ” Latimore, supra, quoting Commonwealth v. Cooper, 264 Mass. 368, 373 (1928). See Commonwealth v. Lee, 460 Mass. 64, 71 (2011), quoting Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010) (reversing conviction where inferences required to prove element of offense “may be plausible, but cannot bear the weight of proof beyond a reasonable doubt”).
The evidence must be reviewed with specific reference to the elements of the offense. Jackson v. Virginia, 443 U.S. 307, 324 n.16; Latimore, 378 Mass. at 677-678. To sustain a conviction for breaking and entering into a motor vehicle in the nighttime with the intent to commit a felony, the Commonwealth must prove “(1) that the defendant broke into a vehicle belonging to another person; (2) that the defendant entered that vehicle; (3) that the defendant did so with the intent to commit a felony in that vehicle; and (4) that this event took place during the nighttime.” Commonwealth v. Hill, 57 Mass. App. Ct. 240, 247 (2003). Because the felony at issue here was larceny, the Commonwealth was required to present evidence that the defendant intended to steal property valued at over $1,200.
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G. L. c. 266, § 30 (1).
On appeal, the defendants singular focus is on the third element. Thus, we review to determine whether the Commonwealth presented sufficient evidence that, at the time of breaking and entering, the defendant intended on stealing property with a value greater than $1,200.
a. Motion at the close of the Commonwealths case. We conclude that the Commonwealth failed to provide sufficient evidence at the close of its case in chief to allow a rational jury to conclude that the defendant intended to take property valued at greater than $1,200. Without having done so, the jury could not reasonably conclude that the defendant intended to commit felony larceny when she broke into the victims car.
By the close of its case, the Commonwealth had offered evidence that the defendant arrived at the victims apartment in Randolph to retrieve her laundry and parking pass. After receiving her laundry but not her parking pass, the defendant was very angry and departed the victims apartment and went down to the parking lot. There she broke into the victims car and began frantically searching it. Officer Douglas Morgan testified that the defendant told him that, once in the lot, “[s]he went in [the vehicle] and purposely took items belonging to [the victim] ․ out of her vehicle, as sort of collateral for the parking pass.”
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In the light most favorable to the Commonwealth, the reasonable inference from this testimony was that the defendant broke into the vehicle searching for her parking pass and, when she couldnt find it, elected to take other items as collateral for its return. See Commonwealth v. Pratt, 407 Mass. 647, 657 (1990) (“Counsel may not ask the jury to speculate on occurrences not fairly inferable from the evidence”). Without more, the determination that the pass was valued at over $1,200, or that the defendant thought it was worth more than that amount, was merely plausible, rather than a conclusion supported by the evidence, as required. See Lee, 460 Mass. at 71. Without being able to arrive at such a conclusion, a rational jury could not further conclude that the defendant intended to commit a felony when she broke into and entered the victims vehicle.
For these reasons, the defendants motion for a required finding of not guilty of breaking and entering the nighttime with the intent to commit a felony should have been granted at the close of the Commonwealths case in chief. See Commonwealth v. Dustin, 476 Mass. 1003, 1003 (2016).
b. Motion at the close of the defendants case. Because the motion for a required finding of not guilty should have been granted at the close of the Commonwealths case, we need not reach the merits of the defendants second motion regarding the sufficiency of the evidence at the close of all the evidence. See Dustin, 476 Mass. at 1003.
On the indictment charging breaking and entering in the nighttime with the intent to commit a felony, the judgment is reversed, the verdict is set aside, and judgment is to enter for the defendant.
On the indictment charging assault and battery on a household member, the judgment is affirmed.
FOOTNOTES
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. The defendant only appeals her conviction of breaking and entering in the nighttime with the intent to commit a felony.
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. The victim described the relationship as “friends with benefits.”
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. In denying the defendants motion, the judge concluded, “I would find in the light most favorable to the Commonwealth that the elements certainly have been proven.”
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. During deliberations, the jury asked the court whether “․ theft from a vehicle constitute[s] a felony in Massachusetts?”
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. No evidence was offered with respect to the value of the property that was actually taken. Nor for purposes of the analysis does it matter. See Hill, 57 Mass. App. Ct. at 248-249 (to obtain conviction, Commonwealth must prove that defendant intended to commit felony at time of breaking and entering). The question for the jury was whether the defendant intended to commit a felony when she entered the victims vehicle, not whether she did once she was already inside.