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14-P-1925                                               Appeals Court

                 COMMONWEALTH   vs.   NAKIA CHAMBERS.


                           No. 14-P-1925.

      Suffolk.       January 29, 2016. - September 1, 2016.

            Present:   Grainger, Hanlon, & Agnes, JJ.


Destruction of Property. Wilful, Wanton, or Reckless Conduct.
     Practice, Criminal, Required finding, Lesser included
     offense, Instructions to jury.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on January 2, 2014.

    The case was tried before Jonathan R. Tynes, J.


     Max Bauer for the defendant.
     Kathryn Leary, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.    The defendant, Nakia Chambers, appeals from her

conviction of the misdemeanor offense of wilful and malicious

destruction of property with a value equal to or less than $250,

in violation of G. L. c. 266, § 127.     We agree with the

defendant that it was error to deny her motion for a required
                                                                     2


finding at the close of the Commonwealth's case but, in the

unusual circumstances of this case, we conclude that because the

jury did not convict her of the offense as charged, instead

returning a verdict on a lesser included offense that was

supported by the evidence, the error was rendered harmless

beyond a reasonable doubt.   See Commonwealth v. Lang, 24 Mass.

App. Ct. 253, 259 (1987).    In view of the confusion that is

evident in the record about the differentiation between the

felony and the misdemeanor offenses set forth in G. L. c. 266,

§ 127, and the malice element required under two of the four

offenses set forth in § 127, we take this opportunity to review

the statute and the developments in the case law.

    Background.   Viewing the evidence in the light most

favorable to the Commonwealth, the jury were warranted in

finding the following facts.   At the time of the events, the

defendant resided in the third-floor apartment of 111 Fuller

Street in the Dorchester section of Boston.    Mary Louise Brown

and her daughter lived in the first-floor apartment, which they

rented from the property owner, a bank.    Brown and the defendant

had a hostile relationship due to disagreements regarding

responsibility for trash collection in the building.   On the

morning of December 17, 2013, Brown's vehicle was parked

temporarily at the base of the driveway to 111 Fuller Street,

blocking the exit to the street.    The defendant's vehicle was in
                                                                      3


the driveway, so she asked for Brown to move her vehicle out of

the way to allow the defendant to access the street.     Brown, who

was in her vehicle, said that she would move as soon as her

daughter (who was inside the apartment) finished getting ready

for work.    The defendant, who had by then exited her vehicle,

began cursing at Brown and kicking the door to the first-floor

apartment.    A few minutes later, the police arrived and asked

Brown to move her vehicle.    The defendant spat on Brown's car as

she moved it.    After the defendant had kicked the door, "the

wood [of the doorframe] was completely shattered" and the door

could not be locked.    It took several days before the door could

be repaired.    While the Browns did not personally pay to repair

the door, there was no evidence offered by the Commonwealth as

to the cost of the repair.

    The defendant was charged with the felony offense of

malicious destruction of property with a value more than $250.

    Motion for required finding of not guilty and charge

conference.    At the close of the Commonwealth's case, the

defendant moved for a required finding of not guilty, contending

that the Commonwealth failed to present evidence that the damage

to the property was more than $250, and failed to meet its

burden to prove that she had acted with malice toward the owner

of the property.    The motion was denied.   The defendant did not

present any evidence.    During the ensuing discussion about the
                                                                   4


jury instructions, the judge acknowledged that "there's no

evidence of the value of the property, so . . . I think it can

be considered on the lesser [included offense], . . . it'll just

have to be the misdemeanor consideration. . . .   I don't think

it's an essential element in terms of the proof of the offense."1

He further stated to counsel that he would include in the

instruction that "[the Commonwealth has] to prove that it was

either over $250 or under $250."2   The defendant objected,

arguing that the Commonwealth failed to sustain its burden on

the crime charged, the felony count.

     The judge instructed, in part, as follows:

     "In order to prove the defendant guilty of this offense,
     the Commonwealth must prove four things beyond a reasonable
     doubt. First, that the defendant injured or destroyed the
     personal property of another. Second, that the defendant
     did so willfully. And third, that the defendant did so
     with malice. And fourth, that the amount of damage
     inflicted to the property was more than $250 or less than
     $250. . . .


     1
       With respect to the crimes set forth in G. L. c. 266,
§ 127, the theory that the value of the property damaged is a
matter for the judge in sentencing was explicitly rejected by
the Supreme Judicial Court in Commonwealth v. Beale, 434 Mass.
1024, 1025 (2001). Relying on Apprendi v. New Jersey, 530 U.S.
466, 495 (2000), the court stated that "the value of the
property must be treated as an element of the felony of
malicious destruction of property, G. L. c. 266, § 127, and that
a value in excess of $250 must be found by a jury beyond a
reasonable doubt." Beale, supra.
     2
       The judge declined to grant the defendant's request to
omit altogether an instruction on the value of the property,
because the judge feared it would have the effect of reducing
the Commonwealth's burden of proof.
                                                                  5


    "An act is done with malice if it is done out of cruelty,
    hostility, or revenge. To act with malice, one must . . .
    act not only deliberately, but out of hostility toward the
    owner of the property. This does not require that the
    person committing this offense knew the identity of the
    owner, but it does require that she was hostile toward the
    owner, whoever, that was.

    "If you determine that the Commonwealth has proved beyond a
    reasonable doubt that the defendant is guilty of willful
    and malicious destruction of property, you must go on to
    determine whether the Commonwealth has also proved beyond a
    reasonable doubt that the reasonable cost of repair of the
    damaged property, or the reasonable cost of replacement if
    it cannot be repaired, was in excess of $250."

    Shortly thereafter, the judge attempted to clarify the

element concerning the value of the property that was allegedly

injured or destroyed by repeating his final sentence, supra, and

adding previously agreed-upon language:

    "If you determine that the Commonwealth has proved beyond a
    reasonable doubt that the defendant is guilty of willful
    and malicious destruction of property, you must go on to
    determine whether the Commonwealth has also proved beyond a
    reasonable doubt that the reasonable cost of repair of the
    damaged property, or the reasonable cost of replacement if
    it cannot be repaired, was in excess of $250 or less than
    $250" (emphasis supplied).

    The instructions regarding the value of the property led to

confusion when the time came for the jury to return their

verdict in open court.

    Clerk: "What say you as to the complaint charging [the
    defendant] on malicious destruction of property over $250 -
    - excuse me. What say you as to the complaint charging
    [the defendant] of malicious destruction of property?"
    Foreperson: "Guilty."
    Clerk: "Guilty to what? As to malicious destruction of
    property in the amount of $250, over or under?"
    Foreperson: "Not guilty (indiscernible)."
                                                                    6


    Clerk: "Over $250 or under $250? Let me --
    (indiscernible)."
    Judge: "Right. I think it's -- I think if it's guilty
    then it's -- if it's over $250. Then it's -- and if it's -
    - I believe it says not guilty as to that, correct?" . . .
    Clerk: "So it was less than $250?"
    Judge: "Right."
    Clerk: "So Mr. Foreman, you say the defendant is guilty of
    malicious destruction of property of less than $250. So
    say you, Mr. Foreman?"
    Foreperson: "Yes."

    The defendant then renewed her motion for a required

finding of not guilty, which was denied.   The defendant was

sentenced to a term of probation for one year.

    Discussion.    a.   Crimes encompassed by G. L. c. 266, § 127.

General Laws c. 266, § 127, as amended by St. 1987, c. 468, § 5,

provides, in relevant part:

    "Whoever destroys or injures the personal property,
    dwelling house or building of another in any manner or by
    any means not particularly described or mentioned in this
    chapter shall, if such destruction or injury is wilful and
    malicious, be punished by imprisonment in the state prison
    for not more than ten years or by a fine of three thousand
    dollars or three times the value of the property so
    destroyed or injured, whichever is greater and imprisonment
    in jail for not more than two and one–half years; or if
    such destruction or injury is wanton, shall be punished by
    a fine of fifteen hundred dollars or three times the value
    of the property so destroyed or injured, whichever is
    greater, or by imprisonment for not more than two and one–
    half years; if the value of the property so destroyed or
    injured is not alleged to exceed two hundred and fifty
    dollars, the punishment shall be by a fine of three times
    the value of the damage or injury to such property or by
    imprisonment for not more than two and one–half months."

    Section 127 sets forth four offenses:    one felony and three

misdemeanors.   The felony offense is punishable by imprisonment
                                                                       7


in State prison for up to ten years or in a house of correction

for not more than two and one-half years.     The felony offense

requires proof of four elements:      that (1) the defendant injured

or destroyed the personal property, dwelling house, or building

of another; (2) he did so wilfully; (3) he did so with malice;

and (4) the property damaged or destroyed had a value greater

than $250.3    G. L. c. 266, § 127.   See Commonwealth v. Deberry,

441 Mass. 211, 215 (2004); Commonwealth v. Kirker, 441 Mass.

226, 228-229 (2004).    See also Commonwealth v. Beale, 434 Mass.

1024, 1025 (2001); Commonwealth v. Redmond, 53 Mass. App. Ct. 1,

4-5 (2001).4   The remaining three offenses in § 127 are

misdemeanors and are differentiated from each other as follows:

(1) wilful and malicious behavior causing damage to or

destruction of property with a value not exceeding $250, which

is punishable by imprisonment in a house of correction for not


     3
       The value of the property damaged or destroyed is
determined by the loss suffered by the victim (usually the
reasonable cost of repair or replacement) and not the reasonable
value of the entire property or the portion thereof that is
damaged. See Commonwealth v. Deberry, 441 Mass. 211, 220-222
(2004).
     4
       Wilful and malicious damage to or destruction of property
is a specific intent crime that requires proof that the
defendant "intended both the conduct and its harmful
consequences." Commonwealth v. Armand, 411 Mass. 167, 170
(1991). Wanton damage or destruction of property, on the other
hand, is a general intent crime that requires only a showing
that the actor's conduct was indifferent to, or in disregard of,
the probable consequences. Compare Commonwealth v. Cimino, 34
Mass. App. Ct. 925, 927 (1993).
                                                                    8


more than two and one-half months;5 (2) wanton behavior causing

damage to or destruction of property with a value exceeding

$250, which is punishable by imprisonment in a house of

correction for not more than two and one-half years;6 and (3)

wanton behavior causing damage to or destruction of property

with a value not exceeding $250, which is punishable by

imprisonment in a house of correction for not more than two and

one-half months.   G. L. c. 266, § 127.   The misdemeanor offense

of wilful and malicious destruction of property ([1], supra) is

a lesser included offense of the felony grade of the offense.

Deberry, supra at 224.   Neither of the two wanton damage or

destruction of property offenses is a lesser included offense of

either the felony or the misdemeanor offenses involving wilful

and malicious destruction of property.    Commonwealth v.

Schuchardt, 408 Mass. 347, 351-352 (1990).

     b.   Value of property damaged.   Turning now to the case at

hand, before us is the question whether it was error to deny the

defendant's motion for a required finding on the felony offense

of wilful and malicious destruction of property valued at more

than $250.   Because the parties agree that the Commonwealth

     5
       See Deberry, supra at 212 n.2. This lesser included
misdemeanor offense is not included as such in the model jury
instruction. See instruction 8.280 of the Criminal Model Jury
Instructions for Use in the District Court (2009).
     6
       See instruction 8.280 of the Criminal Model Jury
Instructions for Use in the District Court (2009).
                                                                   9


failed to present any evidence of the property's value, the

defendant is correct in arguing that her motion for a required

finding of not guilty at the close of the Commonwealth's case

should have been allowed.   See Deberry, supra at 224-225.

Nevertheless, the defendant here, unlike in Deberry, was not

convicted of the felony offense.   The verdict of the jury

announced in open court was that she was guilty of only the

lesser included misdemeanor of wilful and malicious destruction

of property valued at or less than $250.   The error, therefore,

was harmless.   See Lang, 24 Mass. App. Ct. at 259, quoting from

Commonwealth v. Forde, 392 Mass. 453, 456 (1984) ("any error in

denying the defendant's motion for a required finding of not

guilty was 'rendered harmless beyond a reasonable doubt by the

jury's verdict [of the lesser included offense]'").

    c.   Element of malice.   The defendant argues further that

the Commonwealth failed to prove the element of malice because

the Commonwealth did not prove that she knew the identity of the

owner of the property she damaged, nor that she directed her

malice toward that person or entity.   Under G. L. c. 266, § 127,

the Commonwealth must prove that the act was done with malice,

that is, in "a state of mind of cruelty, hostility or revenge."

Commonwealth v. McGovern, 397 Mass. 863, 868 (1986), quoting

from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983).

See Commonwealth v. Gordon, 82 Mass. App. Ct. 227, 229-232
                                                                   10


(2012), and cases cited.   However, "[i]t is immaterial whether

the defendant knew the identity of the owner of the property."

Id. at 230, quoting from McGovern, supra.    See Commonwealth v.

Cimino, 34 Mass. App. Ct. 925, 927 (1993) ("[T]his does not

require . . . that the actor know who owned the property

attacked . . . ; the animus need not have so personalized an

object").   Acting with the requisite malice requires more than

"acting heedlessly" or in "reckless disregard" of others.

Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 692 (2007)

(citation omitted).   For example, the defendant in Cimino, supra

at 925-926, was convicted under G. L. c. 266, § 127, after going

on a spree with a BB gun, shooting out the windows of numerous

parked cars.   Proof that the defendant deliberately aimed and

hit his targets, without proof that he specifically knew the

identity of the car owners, established that he acted with

malice.   Cimino, supra at 927.   Contrast Morris M., supra at

691-693 (no malice where defendant drove Jeep through fence and

onto driving range while trying to escape police, because he did

not act out of cruelty, hostility, or revenge).   See McGovern,

supra at 865, 868 (defendant acted maliciously when he smashed

window of parking lot booth, tore out heating and lighting

units, and threw them into street).

    The judge below instructed, in part, as follows:     "To act

with malice, one must . . . act not only deliberately, but out
                                                                  11


of hostility toward the owner of the property.   This does not

require that the person committing this offense knew the

identity of the owner, but it does require that she was hostile

toward the owner, whoever, that was."   The first portion of this

instruction was an accurate statement of the law.   However, the

last portion of this instruction was inaccurate (though in a way

that was beneficial to the defendant) insofar as it required the

Commonwealth to establish the defendant's malice was directed

specifically toward the owner of the property she damaged or

destroyed.7

     The defendant's reliance on Commonwealth v. Hosman, 257

Mass. 379 (1926), is misplaced.   There, the defendants, who were

     7
       The language used by the judge appears in instruction
8.280 of the Criminal Model Jury Instructions for Use in the
District Court (2009). In a case such as this where the
defendant's malice is directed at a person who is not the
property owner, but in lawful possession or control of the
property, this model instruction is misleading. The requirement
that the Commonwealth must prove beyond a reasonable doubt that
the defendant acted both wilfully and maliciously in the case of
two of the four offenses set forth in G. L. c. 266, § 127,
relates to the defendant's state of mind and her motivation; it
does not require proof that the defendant directed her hostility
or revenge toward the owner of the property. See Commonwealth
v. Armand, 411 Mass. 167, 170 (1991) ("Malice requires a showing
that the defendant's conduct was 'motivated by "cruelty,
hostility or revenge"'" [citation omitted]). All that is
required is that the property damaged belong to someone other
than the defendant, and that the defendant acted intentionally
and with cruelty, hostility, or revenge toward someone. See
Redmond, 53 Mass. App. Ct. at 4, and cases cited. One
alternative to the current model jury instruction would be to
substitute the word "another" for the phrase "the owner [of the
property]." See Commonwealth v. Hosman, 257 Mass. 379, 384-385
(1926), discussed infra.
                                                                     12


engaged in the illegal transportation of alcohol, instructed

their employee to "run down all automobiles barring his

progress."    Id. at 384.   In explaining why the employee's

conduct in driving though a police roadblock and causing great

damage to police vehicles was sufficient to establish that the

defendants acted with malice for the purpose of proof of the

crime of accessory before the fact to wilful and malicious

destruction of property, the Supreme Judicial Court stated that

"[i]t was not essential that [the employee] should know who

owned the Dodge automobiles, or that he should have been

actuated by a spirit of personal hostility to the owners of

these automobiles.     It was enough that he intended willfully and

maliciously to destroy the property of another, whoever he might

be."    (Emphasis supplied.)   Ibid.

       Brown's status as a tenant as opposed to a landowner is not

determinative of the criminal culpability of the defendant for

the acts she committed.     The facts demonstrate that she acted

out of hostility and vengeance directed toward Brown, enraged by

the location of Brown's vehicle in the driveway.     The fact that

Brown was not the actual owner of the property that was damaged

is immaterial.

       Conclusion.   Taken as a whole and in the light most

favorable to the Commonwealth, the evidence presented at trial

was sufficient to allow a reasonable jury to conclude that the
                                                               13


defendant was guilty of the misdemeanor offense of malicious

destruction of property in violation of G. L. c. 266, § 127.

                                   Judgment affirmed.
