Instruction 8.600, Criminal Model Jury Instructions for Use in the District Court

RECEIVING STOLEN PROPERTY

G.L. c. 266, § 60

The defendant is charged with knowingly receiving stolen

property.

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

Commonwealth must prove the following three things beyond a

reasonable doubt.

First: That the property in question was stolen;

Second: That the defendant knew that the property had been

stolen; and

Third: That the defendant knowingly (had the stolen property in

his [her] possession) (bought the stolen property) (aided in

concealing the stolen property).

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the property was stolen – that is, that

someone had taken and carried it away without right and without the

consent of the owner, while intending to deprive the owner of it

permanently. The Commonwealth is not required to prove who it was

who stole the property.

The Commonwealth must also prove that the defendant knew or

believed that the property was stolen. This is a question of the

defendant’s actual knowledge or belief at the time. Even if you find

that, under the circumstances, a prudent person would have known or

believed that the property was stolen, the defendant cannot be found

guilty unless the Commonwealth has proved that he (she) actually

knew that the property was stolen, or at least believed that it was

stolen.

A person’s knowledge is a question of fact. Because you cannot

look directly into someone’s mind, a person’s knowledge is normally

shown by inferences from all the facts and circumstances

surrounding the event. You may infer that the defendant knew that

the goods were stolen if the Commonwealth has proved beyond a

reasonable doubt that the defendant (possessed) (bought) (helped to

conceal) recently stolen goods, and if the facts and circumstances in

this case support an inference that the defendant knew that those

goods were stolen. You should consider all the facts and

circumstances surrounding the defendant’s alleged (possession)

(purchase) (concealment) of stolen goods in deciding whether or not

it is reasonable for you to draw such an inference, and in determining

whether the Commonwealth has proved beyond a reasonable doubt

that the defendant knew that the goods he (she) allegedly (possessed)

(bought) (concealed) were stolen. Remember, under such

circumstances you may, but are not required to, draw an inference

that the defendant knew that the goods were stolen.

Commonwealth v. Burns, 388 Mass. 178, 183 n.11, 445 N.E.2d 613, 616 n.11 (1983).

If the case involves receipt rather than purchase or concealment. Finally,

the Commonwealth must show that the defendant knowingly

“received” the property. 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.

The Commonwealth does not have to show that the defendant

made any personal profit from receiving or disposing of the stolen

property.

SUPPLEMENTAL INSTRUCTIONS

1. “Recently” stolen goods. The term “recently” is a relative

term, and has no fixed meaning. Whether property should be

considered to be recently stolen depends on the type of

property it is, its size and appearance, its marketability, the

circumstances of its recovery, and all the other circumstances

of the situation. The longer the period of time since the theft,

the less likely it is that you can draw any reasonable inference

simply from the defendant’s possession of stolen goods.

Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 600-601, 530 N.E.2d 362, 366

(1988); United States v. Redd, 438 F.2d 335, 336 (9th Cir. 1971). A judge must initially

determine as a matter of law whether the facts would warrant the jury in inferring that

the theft was recent. Kirkpatrick, supra (collecting cases). Whether or not it was recent

then becomes a fact issue for the jury unless the theft was so remote or so recent as to

render it a question of law. Commonwealth v. Sandler, 368 Mass. 729, 744, 335 N.E.2d

903, 913 (1975).

2. Stolen property worth more than $1,200. If you determine that

the Commonwealth has proved beyond a reasonable doubt

that the defendant is guilty of receiving stolen property, you

must also go on to determine whether the stolen property

(was) (if there were multiple items: all together were) worth more than

$1,200. You may use your general knowledge in evaluating the

value of a piece of property; it is not required that you have

any expert evidence of its value.

So if you verdict is guilty, you must also indicate on your

verdict slip whether or not the Commonwealth has also proved

beyond a reasonable doubt that the stolen property (was) (all

together were) worth more than $1,200.

The sample verdict slip for Larceny by Stealing (Instruction 8.521) may be adapted for such

cases.

Effective April 13, 2018, St. 2018, c. 69 increased from $250 to $1,200 the felony

threshold for the offenses of receiving stolen property (G.L. c. 266, § 60), larceny (§ 30)

and wilful or wanton destruction of property (§ 127). For offenses committed prior to

April 13, 2018, this instruction can be utilized, just inserting $250 wherever it refers to

$1,200.

Commonwealth v. Kelly, 24 Mass. App. Ct. 181, 183-186 & n.4, 507 N.E.2d 777, 778-

780 & n.4 (1987), held that, whether or not the value of the property stolen is alleged in

the complaint, in a prosecution for larceny (G.L. c. 266, § 30) “the judge should instruct

the jury that if they convict, they must determine by their verdict whether the value did

or did not exceed [$1,200] 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”

$1,200. Kelly also indicated that the value of the stolen property need not be alleged in

the complaint, since “the value of the property. . . is an element of the punishment but

not an element of the offense of larceny. . . .” Commonwealth v. Tracy, 27 Mass. App.

Ct. 455, 467, 539 N.E.2d 1043, 1050 (1989), cited Kelly approvingly in seemingly

applying the same rule to receiving stolen property cases. Since the language of G.L. c.

266, § 60 is similar to that of § 30, it appears that a similar approach to instructing the

jury should be utilized in prosecutions for receiving stolen property when the evidence

indicates a possible value of more than $1,200 but the complaint does not so allege.

Compare Commonwealth v. Pyburn, 26 Mass. App. Ct. 967, 968-970, 527 N.E.2d 1174,

1175-1176 (1988) (in prosecution for wanton destruction of property under G.L. c. 266,

§ 127, “if there is an allegation in a complaint. . . that the value of the property so

destroyed or injured exceeded” $1,200 then jury must determine that issue, but

instruction need not present that factor as an essential element of the offense since it is

not such) with Commonwealth v. Beale, 434 Mass. 1024, 1025 & n.2, 751 N.E.2d 845,

847 & n.2 (2001) ( “the value of the property must be treated as an element of the felony

of malicious destruction of property” but “the focus of the constitutional inquiry is not a

formalistic examination of whether a finding is labeled an ‘element’ or a ‘sentencing

factor,’ but whether the finding is made by a jury on proof beyond a reasonable doubt”).

The jury may use its common knowledge, and does not require expert evidence, in

evaluating value. Commonwealth v. Hosman, 257 Mass. 379, 386 (1926);

Commonwealth v. McCann, 16 Mass. App. Ct. 990, 991 (1983).

3. Subsequently learning property stolen. Even if the defendant

did not know that the property was stolen at the time 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.

Sandler, 368 Mass. at 740-741, 335 N.E.2d at 911; Commissioner of Pub. Safety v.

Treadway, 368 Mass. 155, 160, 330 N.E.2d 468, 472 (1975); Kirkpatrick, 26 Mass. App.

Ct. at 599, 530 N.E.2d at 365.