Instruction 8.200, Criminal Model Jury Instructions for Use in the District Court

THEFT, PURCHASE, RECEIPT, POSSESSION OR CONCEALMENT

OF STOLEN MOTOR VEHICLE;

MALICIOUS DAMAGE TO MOTOR VEHICLE;

STEALING PARTS FROM MOTOR VEHICLE TAKEN WITHOUT AUTHORITY;

CONCEALING MOTOR VEHICLE THIEF

G.L. c. 266, § 28

The defendant is charged with (stealing a motor vehicle) (malicious

damage to a motor vehicle) (possessing a stolen motor vehicle) (receiving

a stolen motor vehicle) (stealing motor vehicle parts) (concealing motor

vehicle theft).

A. Stealing motor vehicle.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove beyond a reasonable doubt:

First, that the defendant took the motor vehicle;

Second, that the motor vehicle was owned or possessed by someone

other than the defendant; and

Third, that the defendant did so with the intent to deprive that person

of the motor vehicle permanently.

This instruction is modeled after Instruction 8.520, Larceny by Stealing.

The value of the stolen vehicle is not an element of the offense. Commonwealth. v. Casserly, 23

Mass. App. Ct. 947, 948 (1986).

SUPPLEMENTAL INSTRUCTIONS

To prove the first element, the Commonwealth must

1. “Took”.

prove beyond a reasonable doubt that the defendant physically transferred

the motor vehicle to his (her) own control. It does not matter if the transfer

involved only slight movement, or if it lasted only for a short time.

Commonwealth v. Fielding, 371 Mass. 97, 117 (1976) (any separation of property from victim’s

dominion, even if brief in space and time, sufficient); Commonwealth v. Salerno, 356 Mass. 642, 648,

(1970) (taking can be proved by circumstantial evidence); Commonwealth v. Bradley, 2 Mass. App.

Ct. 804, 805 (1974) (momentary transfer sufficient); Commonwealth v. Flowers, 1 Mass. App. Ct. 415,

418-19 (1973) (immaterial whether the transfer is done by the robber himself or by another person,

even by the victim, acting at the robber's direction).

To prove the second element, the Commonwealth must

2. “Of another.”

prove beyond a reasonable doubt that the motor vehicle was owned or

possessed by a person other than the defendant. This may be proved by

direct evidence that someone else owned or possessed the motor vehicle.

The Commonwealth is not required to prove who owned or possessed the

motor vehicle as long as it proves that the defendant did not.

G.L. c. 277, § 25 (identity of owner need not be alleged if property described with sufficient

certainty); G.L. c. 278, § 9 (“owner” includes anyone in actual or constructive possession).

Commonwealth v. Souza, 397 Mass. 236, 238-39 (1986) (identity of owner need not be proved,

only that it was not defendant; because of G.L. c. 277, § 35, misnomer of owner is immaterial if

defendant not misled); Commonwealth v. Kiernan, 348 Mass. 29, 50-51 (1964), cert. denied sub

nom. Gordon v. Mass., 380 U.S. 913 (1965) (“owner” includes anyone with a possessory or

property interest); Commonwealth v. Binkiewicz, 342 Mass. 740, 748 (1961) (because of G.L. c.

278, § 9, complaint about “the property of x” in effect reads “the property of x, or of another but in

x’s actual or constructive possession”; driver with shared dominion over auto registered in

spouse’s name is “owner”); Commonwealth v. Finn, 108 Mass. 466, 467 (1871) (one may steal

from thief); Commonwealth v. Sullivan, 104 Mass. 552, 554-55 (1870) (person who orders goods

is in constructive possession of them once delivered to a common carrier, absent a shipping

agreement to the contrary); Commonwealth v. Arrance, 5 Allen 517, 517-518 (1862) (because of

G.L. c. 278, § 9, permissible to allege and prove only one co-owner).

To prove the third element, the

3. Intent to deprive permanently.

Commonwealth must prove beyond a reasonable doubt that the defendant

intended to deprive the owner or possessor of (his) (her) (its) vehicle

permanently. You may, but are not required, to find such intent if the

defendant’s conduct showed utter indifference as to whether the vehicle

would be recovered.

See Instruction 3.120 (Intent).

Commonwealth v. Salerno, 356 Mass. 642, 648, (1970); Commonwealth v. Cabot, 241 Mass. 131,

141-143 (1922); Commonwealth v. Olivera, 48 Mass. App. Ct. 907, 909 (1999) (difference between

larceny of motor vehicle and use without authority is intent to deprive permanently; the latter assumes

returning stolen vehicle to its owner or abandoning it where it might be recovered); Commonwealth

v. Moore, 36 Mass. App. Ct. 455, 456-57 (1994); Commonwealth v. Coyle, 17 Mass. App. Ct. 982,

984 (1984); Commonwealth v. Ellison, 5 Mass. App. Ct. 862, 862-63 (1977) (intent to make restitution

later is not a defense).

If the defendant took another person’s motor vehicle in

4. Claim of right.

an honest belief that (he) (she) (another person on whose behalf he (she)

was acting) had a legal right to it, then you must find the defendant not

guilty, even if that belief was in fact mistaken, because he (she) lacked the

intent to steal.

Commonwealth v. Liebenow, 470 Mass. 151, 157 (2014) (the specific intent to steal is negated by a finding

that a defendant held an honest, albeit mistaken, belief that he was entitled to the property he took).

B. Malicious damage to motor vehicle.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove beyond a reasonable doubt:

First: That the defendant injured or destroyed a motor vehicle

Second: That the vehicle belonged to another person, and

Third: The defendant acted with malice.

The term “malice” refers to a state of mind of cruelty, hostility or

revenge. To prove that an act was malicious, the Commonwealth

must prove beyond a reasonable doubt not only that it was done

deliberately, but also that it was done out of cruelty, hostility or

revenge toward another.

Commonwealth v. Chambers, 90 Mass. App. Ct. 137, 143-44 & n.7 (2016).

C. Stealing parts.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove beyond a reasonable doubt:

First: That the defendant intentionally took a motor vehicle

Second: That he (she) did so without authority of the owner, and

Third: That he (she) stole from it one or more of its parts or

accessories.

Here instruct on Intent (Instruction 3.120) and the definition of stealing from Larceny by

Stealing (Instruction 8.520).

If defendant learns property was stolen after receiving it

D. Possessing or Receiving stolen motor vehicle.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove beyond a reasonable doubt:

First:

That the defendant (bought) (received) (possessed)

(concealed) (obtained control of) a motor vehicle,

Second:

That the motor vehicle had been stolen, and

Third:

That the defendant knew or believed it had been stolen.

See supplemental instruction on knowledge, below. Where applicable, see instruction on

possession (Instruction 3.220)

A person “receives” property by knowingly taking custody or

control of it. It is not necessary that the defendant personally possessed

the stolen property, as long as it is proved that he (she) knowingly

exerted control over it in some way.

Mere presence in a stolen car is insufficient to support an inference of knowledge that the car

was stolen, but “presence supplemented by other incriminating evidence will serve to tip the

scales.” Commonwealth v. Johnson, 6 Mass. App. Ct. 956, 957 (1978). See Commonwealth

v. Boone, 356 Mass. 85, 87 (1969); Commonwealth v. Johnson, 7 Mass. App. Ct. 191, 193

(1979). See also Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 568-69 (2000).

Even if the defendant did not know that the property was stolen at the

time when he (she) received it, the defendant is still guilty of receiving stolen

property if he (she) subsequently learned that the property had been stolen,

and at that point decided to keep it and to deprive the owner of its use.

Commonwealth v. Sandler, 368 Mass. 729, 740-41 (1975); Commissioner of Pub. Safety

v.Treadway, 368 Mass. 155, 160 (1975); Kirkpatrick, 26 Mass.App. Ct. 595, 599 (1988).

E. Concealing a motor vehicle thief.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove beyond a reasonable doubt:

First:

That a person stole a motor vehicle,

Second: That the defendant knew or believed the person had stolen

a motor vehicle, and

Third:

That the defendant intentionally concealed that person.

A motor vehicle has been stolen if a person took it away from the

person who owned or possessed it with the intent to deprive that person of

the vehicle permanently.

See supplemental instruction on knowledge below. Where necessary, see instruction on Larceny by Stealing

(Instruction 8.520).

SUPPLEMENTAL INSTRUCTION

The Commonwealth must prove beyond a

Knowledge.

reasonable doubt that the defendant actually knew or believed

that (the motor vehicle had been stolen) (the person concealed

had stolen a motor vehicle). Mere negligence or failure to

exercise a reasonable level of care is not enough. Personal

knowledge or belief is required, and our law allows for no

substitute.

It is obviously impossible to look directly into a person’s

mind. But in our everyday affairs, we often look to the actions of

others in order to decide what their state of mind is. In this

case, you may examine the defendant’s actions and words, and

all of the surrounding circumstances, to help you determine the

extent of the defendant’s knowledge.

You should consider all of the evidence, and any

reasonable inferences you draw from the evidence, in

determining whether the Commonwealth has proved beyond a

reasonable doubt, as it must, that the defendant acted with the

knowledge that the person he (she) concealed had stolen the

motor vehicle in question.

Commonwealth v. Dellamano, 393 Mass. 132, 138 (1984); Commonwealth v. Boris,

317 Mass. 309, 315-317 (1944).