COMMONWEALTH v. DEMOLIERE (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of attempting to commit a crime.² On appeal, he claims that the complaint was fatally defective, the jury instructions were faulty, the court did not have jurisdiction, and he was convicted of a crime that did not exist, or if it did exist, there was insufficient evidence to support the conviction. The Commonwealth concedes error, we accept the concession, and we reverse the judgment.

The defendant was charged with attempting “to commit the offense of B&E, but did fail in the perpetration of such offense, or was intercepted and prevented in the execution of such offense, in violation of G. L. c. 274, § 6.” As alleged, the complaint failed to state that the defendant's attempt was done with the intent to commit a felony or a misdemeanor. The judge's unobjected-to jury instructions contained the same omission. However, an attempt to break and enter, unaccompanied by an intent to commit a felony or a misdemeanor, is not by itself a crime. See Commonwealth v. Greene, 461 Mass. 1011, 1012 (2012); Commonwealth v. Vinnicombe, 28 Mass. App. Ct. 934, 935 (1990). We need not address the defendant's other claims.³

Judgment reversed.

Verdict set aside.

Judgment for the defendant.

FOOTNOTES

2.   The judge allowed the defendant's motion for a required finding of not guilty on the charge of malicious destruction of property, and the jury acquitted the defendant on the charge of violation of an abuse prevention order.

3.   Because the defendant was convicted of a crime that does not exist, he was never placed in jeopardy, and theoretically he could be tried for a properly charged crime based on the events in this case. See, e.g., Commonwealth v. Gosselin, 365 Mass. 116, 122 (1974). We need not dwell on that matter. Because the defendant was acquitted of violating the abuse prevention order, the Commonwealth has informed this court that it will not seek any additional charges against the defendant related to this event.