Instruction 8.525, Criminal Model Jury Instructions for Use in the District Court

FROM PERSON AGE 60 OR OLDER / DISABLED

LARCENY BY STEALING FROM A

(PERSON 60 YEARS OF AGE OR OLDER) (DISABLED PERSON)

G.L. c. 266, § 30 (5)

The defendant is charged with larceny by stealing from a

(person 60 years of age or older) (disabled person). To prove the

defendant guilty of this offense, the Commonwealth must prove the

following four things beyond a reasonable doubt:

First: The defendant took and carried away property;

Second: The property was owned or possessed by a person (60

years of age or older) (with a disability) on the date of the alleged

offense; and

Third: The defendant did so with the intent to deprive that

person of the property permanently.

G.L. c. 277, § 39. Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985);

Commonwealth v. Johnson, 379 Mass. 177, 181 (1979).

To prove the first element, the Commonwealth must prove that

the defendant “took and carried away” the property in question.

“Taking and carrying away” is accomplished if the defendant

FROM PERSON AGE 60 OR OLDER / DISABLED

physically transferred the property from the other person’s control to

their own. It does not matter if the transfer involved only slight

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

To prove the second element, the Commonwealth must prove

that the property was owned or possessed by a person other than the

defendant and that the person was (60 years of age or older) (with a

disability) on the date of the alleged offense.

[A person with a disability is a person with a permanent or long-term physical or mental impairment that prevents or restricts the

individual’s ability to provide for their own care or protection.]

G.L. c. 265, § 13K (defining “person with a disability”)

To prove the third element, the Commonwealth must prove that

the defendant intended to deprive the owner of the property

permanently. If a person takes the property of another and disposes

of it with indifference to whether the owner recovers its possession

that may indicate an intent to deprive the owner of it permanently.

A person’s intent is their purpose or objective. This requires

you to make a decision about the defendant’s state of mind at that

FROM PERSON AGE 60 OR OLDER / DISABLED

time. You may consider any evidence about the actions or words of

the defendant, and all of the surrounding circumstances, to help you

determine what the defendant’s intent was at that time.

If the Commonwealth has proven all three elements of the

offense beyond a reasonable doubt, you should return a verdict of

guilty. If the Commonwealth has failed to prove one or more of these

elements beyond a reasonable doubt, you must return a verdict of not

guilty.

SUPPLEMENTAL INSTRUCTIONS

See Instruction 3.120 (Intent).

1. Larceny over $250. If you determine that the

Commonwealth has proved beyond a reasonable doubt that

the defendant is guilty of larceny, you must go on to determine

whether the property that was stolen was worth more than

$250. You may consider any credible evidence in determining

the value of a piece of property.

FROM PERSON AGE 60 OR OLDER / DISABLED

If your verdict is guilty, you must indicate on your verdict

slip whether or not the Commonwealth has also proved

beyond a reasonable doubt that the property was worth more

than $250.

For the purposes of larceny from a person 60 or older or a disabled person,

the value amount remains at $250. See G. L. c. 266, § 30(5).

Whether or not the value of the property stolen is alleged in the complaint, “the judge

should instruct the jury that if they convict, they must determine by their verdict whether the

value did or did not exceed $250 so that the judge will know what range of punishments is

available. Otherwise the judge will be required to sentence as if the value did not exceed

$250. Commonwealth v. Kelly, 24 Mass. App. Ct. 181, 183-186 & n.4 (1987).

For a sample verdict, see the appendix (Instruction 8.521).

2. Single Scheme.

The Commonwealth alleges that property was taken over

a period of time [and from different locations]. If each taking

was done with a single, continuing intent to steal, or pursuant

to a general scheme of plan to steal, you may add those

amounts together to determine whether the Commonwealth

proved that the defendant took property with a total value of

more than $250.

Commonwealth v. John G. Grant & Sons Co., 403 Mass. 151, 157 (1988) (statutory

language making each day of a continuing violation a separate offense prevents

charging as single, continuous offense); Commonwealth v. Murray, 401 Mass. 771, 774

(1988) (where several acts of a defendant are involved, successive takings in a single,

continuing larcenous scheme may, but need not, be charged as a single scheme);

Commonwealth v. England, 350 Mass. 83, 86- 87 (1966) (value of successive larcenies

in single scheme may aggregate to grand larceny); Commonwealth v. Stasiun, 349

FROM PERSON AGE 60 OR OLDER / DISABLED

Mass. 38, 45 (1965) (same); Commonwealth v. Peretz, 212 Mass. 253, 254 (1912)

(same); Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 329 (2002) (same); Slater

v. United States Fidelity & Guar. Co., 7 Mass. App. Ct. 281, 285 (1979), rev’d on other

grounds, 379 Mass. 801 (1980) (same); Commonwealth v. Donovan, 395 Mass. 20, 27-

31 (1985) (where a single act of a defendant is involved, successive takings in a single,

continuing larcenous scheme must be charged as a single offense); Commonwealth v.

Pina, 1 Mass. App. Ct. 411, 412 n.2 (1973). Compare G.L. c. 277, § 32 (charging a

continuing offense); Commonwealth v. Sullivan, 104 Mass. 552, 553 (1870) (distinct

larcenies may be presented in multiple counts; stealing at one time of articles belonging

to several owners may be charged either as one larceny or as distinct larcenies). But

see Donovan, 395 Mass. at 29 (only one count of larceny, not seven, where defendant

mounted imitation deposit lock box over the real one at a bank, obtaining seven bank

deposits from different depositors). See also Commonwealth v. Baldwin, 52 Mass. App.

Ct. 404, 407 (2001) (Donovan inapplicable where circumstances involve more than one

discrete offense, such that different property is taken at different times and from different

locations).

3. Claim of right. If the defendant took another person’s

property in an honest and reasonable belief that they (or

another person on whose behalf they were acting) had a legal

right to it, then you must find the defendant not guilty, even if

that belief was in fact mistaken, because they lacked the intent

to steal.

Commonwealth v. Garrity, 43 Mass. App. Ct. 349, 358 n.7 (1997); Commonwealth v.

Larmey, 14 Mass. App. Ct. 281, 283-285 (1982); Commonwealth v. Anslono, 9 Mass.

App. Ct. 867, 868 (1980);Commonwealth v. Ellison, 5. Mass. App. Ct. 862, 862-63

(1977); Commonwealth v. White, 5 Mass. App. Ct. 483, 485-488 (1977).