COMMONWEALTH v. RODRIGUEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from an order dismissing a charge of larceny over $1,200 against the defendant, Hiram J. Rodriguez. We conclude that the information contained in the criminal complaint application did not establish probable cause to believe that the defendant “unlawful[ly took] and carr[ied] away ․ the property ․ of another with the specific intent to deprive the person of the property permanently,” as required by G. L. c. 266, § 30 (1). See Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015). Accordingly, we affirm.

The criminal complaint application. We recite the facts set forth in the police report filed in support of the criminal complaint application. On December 10, 2018, C.M., a client of a gym in Easthampton arrived at the gym for a 5 P.M. class. She was the last person to arrive for that class. When she entered the gym, she went to a back room where she removed her engagement and wedding rings and placed them in her wallet. She then put the wallet in her purse and hung it on a hook in the back room.²

The defendant is also a member of the gym; he had taken a 4 P.M. class that day. After C.M. arrived at the gym, she and B.L., the owner of the gym, saw the defendant go into the back room at least twice.³ B.L. approached the defendant in the back room and asked him what he was looking for. The defendant said that he was looking for his water bottle, but B.L. said he “seemed confused” and was “thinking about his answer.” Shortly before 6 p.m., J.C., another client of the gym arrived and placed her belongings in the back room; she proceeded to a treadmill in the gym. During the relevant time period, only four people entered the back room: the defendant, the gym owner, C.M., and J.C.

After the class ended, C.M. gathered her belongings, went to her car, opened her purse, and noticed that her wallet was missing. She searched around the immediate area and then went back into the gym to report the missing wallet. B.L. went into the back room and “squeezed clothing and bags” to see if he could feel the wallet, to no avail. The wallet was never found.

Procedural history. The Easthampton Police Department sought a complaint against the defendant charging him with larceny over $1,200. Following his arraignment, the defendant filed a motion to dismiss the complaint. After a nonevidentiary hearing, a District Court judge allowed the motion in a margin order.

Discussion. Probable cause exists “where the facts and circumstances ․ [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been ․ committed” (quotation and citation omitted). Commonwealth v. Coggeshall, 473 Mass. 665, 667 (2016). “Probable cause requires more than mere suspicion, but it is considerably less demanding than proof beyond a reasonable doubt” (quotation and citation omitted). Id. “When applying this standard we are guided by the factual and practical considerations of everyday life on which reasonably prudent [people], not legal technicians, act” (quotation and citation omitted). Id.

Where, as here, a clerk-magistrate has issued a criminal complaint, “a motion to dismiss ․ is the appropriate and only way to challenge a finding of probable cause.” Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). “A motion to dismiss for lack of probable cause ‘is decided from the four corners of the complaint application, without evidentiary hearing.’ ” Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016), quoting Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013). “The complaint application must include information to support probable cause as to each essential element of the offense.” Humberto H., supra at 565-566. Our review of a judge's probable cause determination is a question of law, which we review de novo. Id. at 566. We view the information set forth in the complaint application “in the light most favorable to the Commonwealth.” Leonard, supra. Probable cause may be established by circumstantial evidence viewed in the totality of the circumstances. Humberto H., supra. See Commonwealth v. Combs, 480 Mass. 55, 61-62 (2018) (“Proof of an essential element of a crime may be based on reasonable inferences drawn from the evidence, but it may not be based on conjecture”).

Here, there was no direct evidence that the defendant stole the missing wallet. No one witnessed him take the wallet, and he was not found with the wallet or any of its contents. The defendant's presence in the back room of the gym in and of itself does not support an inference that he took the wallet. Contrast Commonwealth v. Cartright, 478 Mass. 273, 284 (2017) (defendant found with stolen item in his possession). Moreover, B.L.'s belief that the defendant seemed “confused” and was “thinking of the answer” in response to his (B.L.'s) inquiry, is not sufficient evidence to establish probable cause. See Commonwealth v. Prentice P., 57 Mass. App. Ct. 766, 769 (2003) (consciousness of guilt evidence and presence at scene, without more does not establish probable cause). Four people had access to the back room, and at least two of them entered it after C.M. left her purse there.⁴ The application failed to establish the time and the place of the alleged larceny. Indeed, mere suspicion that the defendant took the wallet does not support a finding of probable cause. The complaint was properly dismissed.

Order dismissing complaint affirmed.

FOOTNOTES

2.   The entrance of the building leads to a hallway to the gym. The unsecured back room is located to the side of the gym, opposite the entrance. Clients of the gym place their personal belongings in the back room while they are at the gym.

3.   In her statement to police, C.M. described the defendant's movements as follows:“About halfway through the class, I noticed a man walk through the gym and into the back room․ He stayed in the back room for a few minutes and then exited ․[,] walking through the gym again. I saw him standing in the doorway holding a blue water bottle. He was standing in the doorway that goes from the gym to the hall that leads outside. I saw him come back into the gym and enter the back room for a second time.”

4.   The Commonwealth's reliance on Commonwealth v. Casale, 381 Mass. 167 (1980), is misplaced. There, the court held that in the context of a joint venture, and to survive a motion for a directed verdict, the Commonwealth was not required to prove that no one other than the accused could have performed the act, and the fact that another had the opportunity “goes only to the weight of the evidence.” Id. at 175-176. Here, no joint venture is alleged and there was otherwise not enough evidence to support issuance of the complaint.