Commonwealth v. Scott
Commonwealth v. Scott
Opinion of the Court
Having been convicted by a District Court jury of breaking and entering a building in the daytime with the intent to commit a misdemeanor (a trespass) in violation of
Background. We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. See Commonwealth v. Fowler, 431 Mass. 30, 31 (2000).
The Commonwealth presented evidence on the breaking and entering charge through the testimony of Obin Onujiogu, the owner of the premises in question, a two-family house located at 91 West Cottage Street in Roxbury (building). The building consisted of a first-floor apartment occupied by renter Richard Walker, a vacant four-bedroom apartment on the second floor, and an occupied third-floor attic level that had been converted into a two-bedroom living space. Outside one of the second-floor apartment windows was an emergency exit or fire escape, with iron stairs going all the way down to the ground. In the front of the building, there were two exterior doors at street level. One door was to Walker’s apartment and the other door opened into a hallway that led up to the entrance to the second-floor apartment.
Onujiogu, who lived three minutes away by car from the building, experienced continual problems with people breaking
Onujiogu further testified that on July 18, 2004, at approximately 6:30 a.m., he received a telephone call from the woman residing in the third-floor attic of the building. As a result of this call, he telephoned the police and drove immediately to the building, arriving there three minutes after receiving the third-floor tenant’s call. Upon arrival at the building, he saw the defendant walk down the stairs from the second floor and leave the building from the exterior front door (which led to the entrance to the second-floor apartment). The defendant did not have Onujiogu’s permission to be inside the building. Onujiogu (who had never seen the defendant before) asked him, “[S]o you keep doing this? So you keep doing this?” The defendant did not respond. The police arrived and began speaking with the defendant, who then started to run. Police officers stopped the defendant and restrained him.
Discussion. In contending that, at the close of the Commonwealth’s case, the judge erred in denying his motion for a required finding of not guilty on the charge of breaking and entering in the daytime with the intent to commit a misdemeanor, the defendant argues (1) that the Commonwealth did not present sufficient evidence to prove that he “broke into, or entered, the vacant second floor apartment of 91 West Cottage Street,” and (2) that trespass cannot be the intended misdemeanor, and even assuming that it could, the judge erred in finding that there was sufficient evidence of intent to trespass so as to permit the case to proceed at the close of the Commonwealth’s case. These contentions are unavailing.
Because the defendant’s argument is limited to the claim that
The defendant’s argument rests initially upon his contention that there was insufficient evidence that he broke and entered into the second-floor apartment. However, the crime charged is broader, and includes the entire building rather than just the claim that the defendant was within the four walls of that apartment. There was direct evidence that the defendant was seen in the building walking down the stairs of a hallway that was protected from the public by a locked door, and leaving by this door that served as the entryway from the street level to the
In sum, as there was direct evidence that the defendant was seen walking down the stairs from the second-floor apartment and out a front exterior door of a building that he had no legal right to enter or stay in, and that the front exterior door and the doors and windows of that apartment were kept closed and locked, the evidence was sufficient for the case to be submitted
The evidence was sufficient regarding the final prong of G. L. c. 266, § 16A, requiring that the Commonwealth prove that the defendant, when he entered the building, intended to commit a misdemeanor. See G. L. c. 266, § 16A. Although not
To the extent that the defendant argues that intent to commit a trespass cannot be the underlying intended misdemeanor for a breaking and entering conviction, the Supreme Judicial Court has ruled otherwise in Rogan v. Commonwealth, 415 Mass. 376, 379 (1993). The defendant argues that the judge, in permitting the case to proceed at the close of the Commonwealth’s evidence, erred because “it is inherent that a trespass appears to be subsumed into a [bjreaking and [ejntering and therefore[] cannot be the sole independent intended misdemeanor necessary to support the charge.” To be sure, “there is no such crime as ‘breaking and entering’ unaccompanied by intent to commit a felony or a misdemeanor. See G. L. c. 266, §§ 14, 15, 16, 17, 18, 19, & 20A. There is such a thing as criminal trespass. It consists of entry of, or remaining in, a dwelling house (among other places) without right after having been forbidden so to do. G. L. c. 266, § 120.” Commonwealth v. Vinnicombe, 28 Mass. App. Ct. 934, 935 (1990). “[Cjriminal trespass . . . contains elements which need not be found for breaking and entry with intent to commit a [misdemeanor], notably entering or remaining after having b eenforbidden so to do.” Ibid. Here, the evidence presented by the Commonwealth — that after breaking and entering into a building, the defendant was seen walking down the stairs of a hallway — was sufficient for the jury to determine that he had broken and entered the building with the intent to commit a trespass therein.
Judgments affirmed.
Section 16A of G. L. c. 266, as amended by St. 1966, c. 408, provides in relevant part:
“Whoever in the nighttime or daytime breaks and enters a building, ship, vessel or vehicle with intent to commit a misdemeanor shall be punished by a fíne . . . or by imprisonment. . . , or both.”
When trial began, count one originally charged breaking and entering in the daytime with the intent to commit a felony. At the close of the Commonwealth’s case, after argument by defense counsel and at the request of the Commonwealth, the judge reduced the charge to breaking and entering in the daytime with the intent to commit a misdemeanor, to wit, a trespass. The jury also considered charges of assault and battery by means of a dangerous weapon (count two), assault and battery on a police officer (count three), resisting arrest (count four), and possession of a class B controlled substance, cocaine (count five). In addition to count one, the jury returned convictions on counts three, four and five. In this appeal, the defendant does not challenge his convictions on counts three, four, or five, and therefore waives any claim regarding them. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Williams, 422 Mass. Ill. 112 n.l (1996).
It is unclear from the transcript if “people” refers to more than one person on a single intrusion or one individual person on a number of separate intrusions.
During cross-examination and again on redirect examination, Onujiogu clarified that a front door and a back door were the only entrances that led directly to the second-floor level, and that an exterior front door opened to a hallway and staircase leading to the second-floor apartment. Onujiogu also testified that there was a second exterior front door, but that only led to the first-floor apartment.
For the purposes of our discussion below, we do not consider the evidence presented by the defendant. The defendant called two witnesses, Walker and himself. Walker testified that he had met the defendant in the previous month, when the defendant helped him start his car. Walker testified that if the defendant was on the property on July 18, it might have been because he was waiting for Walker to “come back to give him some money or something,” but that he did not know. Walker further testified that although the defendant may have used the bathroom in Walker’s first-floor apartment on occasion, the defendant did not have Walker’s permission to be in the apartment on July 18. According to the defendant’s testimony, on July 18, he went to help Walker fix the starter on Walker’s car, Walker left to get money to buy a new starter, and the defendant was waiting for Walker on the sidewalk in front of the building. The third-floor tenant opened her window and asked the defendant if he had seen anyone go in the second-floor apartment, and the defendant replied that he had not. Onujiogu then arrived and asked him what he was doing there. The defendant responded that he was there to fix Walker’s truck. A few minutes later, the police arrived.
The defendant did not renew his motion for a required finding of not guilty at the close of his case. While we observe that the Commonwealth’s case here did not deteriorate as a result of the defense’s evidence, see Commonwealth v. O’Laughlin, 446 Mass. 188, 203-205 (2006); compare Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986); Commonwealth v. Melton, 436 Mass. 291, 294 n.2 (2002), in this appeal the defendant does not request that we consider the evidence presented by him, nor do we do so.
While, as noted, the defendant erroneously seeks to limit review to breaking and entering of the second-floor apartment, even on those limited terms, the evidence was sufficient for the case to proceed to the jury. The third-floor tenant telephoned Onujiogu and this resulted in Onujiogu telephoning the police and going to the building. Onujiogu testified that he found the second-floor apartment window beside the emergency exit opened and the door to the apartment unlocked. Onujiogu further testified that he had locked that window and door (although, admittedly, he could not remember when he most recently had been there). In addition, the defendant was seen walking down the stairs from a hallway that leads to the second-floor apartment, and the defendant was not given permission to be there. A fact finder could infer that the defendant had come to that hallway and stairs from the second-floor apartment. See Commonwealth v. Ortega, 441 Mass. 170, 174 (2004), quoting from Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 150 (1999) (“proof may be accomplished by circumstantial evidence and the ‘reasonable — not inescapable — inferences to be drawn from it’ ”).
Onujiogu’s testimony differed in some respects from the testimony of one of the responding police officers. The officer testified that when he and Onujiogu went inside the second-floor apartment for an inspection, the doors and windows were locked. Onujiogu testified, however, that during the walk-through of the apartment with the police, it was discovered that the “doors” were unlocked and the window beside the emergency exit was open.
On this prong, the judge, in his charge, instructed the jury that the Commonwealth must prove that the defendant “broke in with the intent to commit a misdemeanor.” In doing so, the judge did not define the elements of any particular misdemeanor, and was not required to do so. See Rogan v. Commonwealth, 415 Mass. 376, 379 (1993) (judge did not err in denying defendant’s request that Commonwealth specify underlying misdemeanor “because the particular misdemeanor would not become an element of the crime charged, and indeed, the jury could find the intent to commit an unspecified misdemeanor”). See also Commonwealth v. Willard, 53 Mass. App. Ct. 650, 656 (2002) (“We are aware of no case that, in circumstances such as these, requires a trial judge to define the elements of the intended [misdemeanor or] felony”).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.