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SJC-11566

                COMMONWEALTH   vs.   DAVID ST. HILAIRE.



      Middlesex.       September 4, 2014. - January 2, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Larceny. Consent.     Mental Impairment.    Intent.   Evidence,
     Intent.



     Indictments found and returned in the Superior Court
Department on January 18, 2011.

    The case was heard by Mitchell H. Kaplan, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Steven J. Rappaport for the defendant.
     Melissa Weisgold Johnsen, Assistant District Attorney
(David Solet, Assistant District Attorney, with her) for the
Commonwealth.


    HINES, J.    Following a jury-waived trial, a Superior Court

judge found the defendant guilty of larceny from a person sixty
                                                                   2


years of age or older in violation of G. L. c. 266, § 30 (5).1

The charges arose from a real estate transaction in which Erika

Magill, the victim, sold her property to the defendant.   At the

time of the transaction, the victim was an eighty-six year old

widowed nursing home resident.   The defendant's appeal claiming

error in the judge's denial of his motion for a required finding

of not guilty was entered in the Appeals Court, and we

transferred the case to this court on our own motion to consider

whether, as the judge ruled, the crime of larceny may be proved

by evidence that (1) the victim lacked the mental capacity to

understand the transaction she entered into with the defendant;

and (2) the defendant knew or should have known that she lacked

such capacity.   We conclude that the "unlawful taking" element

of the crime of larceny by theft may be proved by evidence that

the victim lacked the mental capacity to consent to a taking of

her property, but that the "specific intent to steal" element

requires proof that the defendant knew that the victim lacked

capacity to give such consent.   Because the judge may have

applied an erroneous legal standard for proof of the specific




     1
       The judge found the defendant not guilty of obtaining a
signature under false pretenses in violation of G. L. c. 266,
§ 31.
                                                                     3


intent to steal, we vacate the conviction and remand for a new

trial.2

     Background.     Taken in the light most favorable to the

Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979), the judge could have found the following facts.       The

victim lived alone in her home in Lowell.     She and her late

husband owned the home, and she lived there for more than fifty

years.    The home was her only asset.   The defendant, a building

inspector in Lowell, was one of the victim's neighbors.       Shortly

after moving in, the defendant and the victim's husband

developed a tense relationship due to disputes over the

boundaries of their respective properties.     After the victim's

husband died, the defendant inquired about buying the victim's

home.     She refused to sell to him and told several people,

including her attorney, that she did not want to sell her

property to the defendant.    She expressed her resolve not to

sell to the defendant in colorful language.    She told one

person, "That son of a bitch wants my house, and he's not

getting it."    She said to another that there was "no way in




     2
       Due to the length of time that has elapsed since the trial
in this case, the judge was unable to respond to an order of
this court seeking clarification whether the guilty finding was
based on the defendant's knowledge of the victim's lack of
mental capacity to consent.
                                                                    4


hell" she would sell to the defendant and that her late husband

would "flip over in his grave" if she did.

    In July, 2001, the victim's attorney prepared the victim's

will naming her best friend as the sole beneficiary of her

property, including her home.   The victim had no family.    When

the friend's health began to deteriorate in 2007, the friend's

daughter, Lisa Miele, began to visit with and provide help to

the victim.   In 2007, the victim substituted Miele as her health

care proxy, a duty previously undertaken by Miele's mother, who

died in 2009.

    On July 13, 2010, the victim broke her hip and was taken to

a hospital where she was scheduled to undergo surgery the

following day.   The victim was anxious about the surgery and

summoned her attorney the afternoon before the surgery to

discuss her will.   In the conversation with her attorney, the

victim explained that her best friend had died and that she

wanted the friend's daughter to receive whatever her friend

would have received under the prior will.    The attorney attended

to the matter that day and returned to the hospital later that

night, before the surgery, with the revised will.   As instructed

by the victim, the attorney revised the will to bequeath the

victim's house and property to Miele.   The victim reviewed the

revised will and signed it in the presence of two witnesses and

a notary brought to the hospital by the attorney.
                                                                   5


    The next day the victim underwent surgery, and on July 17,

2010, she was transferred to a nursing home for rehabilitation.

On admission to the nursing home, a medical staff member

administered a "mini mental status exam" that showed mild

cognitive deficits and concluded that the victim was not

competent to sign any further paperwork.   A supervisor informed

Miele that as the victim's health care proxy, she would have to

sign documents on the victim's behalf.

    After a few days at the nursing home, the victim's

condition deteriorated.    She suffered an infection that caused a

great deal of pain and discomfort.   The medical staff

administered antibiotics, antidepressants, and oxycodone, which,

according to one of the treating nurses, could cause confusion

and sedation.   After receiving the medication, the victim was at

times incoherent and incapable of expressing herself.    The

victim's condition was apparent to Miele, who visited the victim

every day after the surgery.   The defendant also visited the

victim, and during one visit when both Miele and the defendant

were present, the defendant questioned Miele about her constant

attention to the victim.

    During the victim's stay at the nursing home, the staff

became aware that the defendant had asked the victim to sign

documents, the nature and contents of which were unknown to the

victim.   On July 21, 2010, Miele relayed this information to the
                                                                    6


victim's attorney.    The victim's roommate also was aware of the

defendant's efforts to get the victim to sign unspecified

documents.    The victim's roommate promised to telephone Miele if

the defendant returned with documents for the victim to sign.

    On July 26, 2010, Miele visited the victim as usual but the

victim was barely aware of Miele's presence.    Miele left with a

promise to return after dinner.   Shortly thereafter, the

defendant arrived at the victim's bedside with a notary public

and one other person.    The victim's roommate, who was present

when the defendant arrived, saw the defendant hand a document to

the victim.   Without explaining the contents, the defendant

asked the victim to sign the document.    The victim's roommate

yelled to the victim not to sign it, but she did.    The victim's

roommate immediately telephoned Miele.    When Miele arrived to

investigate what had happened, the victim told Miele that she

did not know what she had signed.   The defendant did not provide

a copy of the document to the victim.

    A few days later, the victim was taken to the hospital,

where she fell into a coma.    She died on August 12, 2010.    After

the victim's death, Miele learned that the victim had signed a

quitclaim deed conveying her property to the defendant.

    Subsequently, Detective Thomas Hultgren of the Lowell

police department contacted the defendant and requested an

interview regarding the circumstances of the transfer of the
                                                                       7


victim's property to the defendant.     The defendant agreed to an

interview and met with Detective Hultgren.     During that

interview, the defendant claimed that, prior to the victim's

hospitalization for her hip injury, the victim and he had

reached an oral agreement for the sale of her property.        The

terms of the alleged agreement were that the defendant would pay

the victim $100,000, pay off the municipal liens, and grant the

victim a life estate in the property.     The victim would take

back two mortgages in the amount of $50,000 and $42,000.       These

mortgages would be discharged after fifteen years or on the

victim's death, whichever occurred first.     The defendant showed

Detective Hultgren a copy of the notarized quitclaim deed the

victim signed on July 26, copies of two notarized mortgages that

the victim did not sign, and a document entitled "Life Estate,"

which the victim also did not sign.     Even though the defendant

was aware that the victim was represented by an attorney and

that Miele was her caretaker, he never told either of them about

the agreement for the sale of the victim's property.     The

defendant did not seek the assistance of an attorney, opting to

prepare all of the documents himself.     As to the victim's

condition on the date of the transaction, the defendant claimed

that she "looked good" and "knew what was going on" when he

asked her to sign the deed.   He also told Detective Hultgren
                                                                     8


that the victim "looked better on July 26 than [she had] in

months."

    The defendant recorded only the $50,000 mortgage, claiming

that he did so as a protective measure so that the nursing home

would be unable to get a lien on the victim's house in the event

that she could not pay her bills.    He paid no money to the

victim.    Notwithstanding the asserted agreement to grant the

victim a life estate in the property, the defendant immediately

changed the locks on the property, denying access to Miele and

the victim's attorney.

    Discussion.     At the close of the Commonwealth's evidence

and again at the close of all the evidence, the defendant filed

motions for required findings of not guilty.    The motions were

denied, and after the close of all the evidence, the judge found

the defendant guilty of larceny from a person sixty years of age

or older and not guilty of obtaining a signature by false

pretenses.   On appeal, the defendant argues that the judge erred

in denying the motion for a required finding of not guilty of

larceny, claiming error in the judge's ruling that the unlawful

taking element of larceny may be proved by evidence that the

victim lacked the mental capacity to consent to the transaction.

He contends that without this evidence, the Commonwealth's case

was otherwise insufficient to prove larceny.    The defendant also

claims, for the first time on appeal, that because the
                                                                     9


transaction granted the victim a life estate in the property,

the evidence was insufficient to prove beyond a reasonable doubt

intent to deprive the victim of her property "permanently."

     1.   Standard of review.   We review a claim of insufficiency

of the evidence under the oft-repeated standard articulated in

Latimore, 378 Mass. at 677.     The test is whether "after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt" (emphasis in original).

Id., quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

     2.   The elements of larceny.    General Laws c. 266, § 30

(5), inserted by St. 1995, c. 297, § 9,3 provides in relevant

part as follows:   "Whoever steals or with intent to defraud

obtains by a false pretense, or whoever unlawfully, and with

intent to steal or embezzle, converts, or secretes with intent

to convert, the property of another, sixty years of age or older

. . . shall be guilty of larceny . . . ."     This provision of the

statute is identical to G. L. c. 266, § 30 (1),4 except for the


     3
       In 1995, in "An Act relative to the assault, abuse,
neglect and financial exploitation of an elderly or disabled
person," the Legislature amended G. L. c. 266, § 30, to add the
new paragraph (5), which specified the enhanced punishment for
larceny of property of persons sixty years of age or older. See
St. 1995, c. 297, § 9. The amendment did not change the
elements of larceny.
     4
       The larceny statute, G. L. c. 266, § 30, merged the three
formerly separate common-law crimes of larceny by theft, larceny
                                                                   10


specification of an enhanced penalty for larceny of the property

of persons sixty years of age or older.5   A conviction of larceny

under G. L. c. 266, § 30 (1), requires the Commonwealth to prove

beyond a reasonable doubt an unlawful taking and carrying away

of the property6 of another with the specific intent to deprive

the person of the property permanently.    See Commonwealth v.

Mills, 436 Mass. 387, 394 (2002).    In this appeal, only the

unlawful taking and intent elements are at issue.    We consider

each in turn.

     3.   Unlawful taking.   The Commonwealth prosecuted the

defendant on the theory that the purported sale of the victim's


by embezzlement, and larceny by false pretense into one crime:
larceny. Commonwealth v. Labadie, 467 Mass. 81, 87, cert.
denied, 135 S. Ct. 257 (2014), citing Commonwealth v. Mills, 436
Mass. 387, 391–392 (2002). An indictment pursuant to G. L.
c. 266, § 30, need not specify the particular type of larceny
charged against the defendant. The crime may be established by
evidence sufficient to warrant a conviction on any one of the
three formerly separate charges. Mills, supra at 392, citing
Commonwealth v. King, 202 Mass. 379, 388 (1909).
     5
       The enhanced penalty provision in G. L. c. 266, § 30 (5),
for larceny over $250 increases the maximum punishment to
"imprisonment in the [S]tate prison for not more than ten years
or in the house of correction for not more than two and one-half
years, or by a fine of not more than [$50,000] or by both such
fine and imprisonment." Under G. L. c. 266, § 30 (1), a person
convicted of larceny is subject to a maximum punishment of not
more than five years' imprisonment in the State prison or
payment of a $25,000 fine and not more than two years in a house
of correction.
     6
       The statutory definition of property includes "a deed or
writing containing a conveyance of land." G. L. c. 266,
§ 30 (2).
                                                                  11


property to the defendant was in fact a larcenous taking.   The

argument was that the victim's apparent consent to the

transaction was vitiated by her mental incapacity at the time

she executed the deed transferring her property to the

defendant.   Although the Commonwealth cited no Massachusetts

case7 expressly allowing evidence of the victim's mental state to

prove larceny, the judge accepted this premise and instructed

himself as follows:

     "[T]he court . . . may find that the defendant unlawfully
     took property owned by [the victim] if the Commonwealth has
     proved beyond a reasonable doubt, one, that on July 26,
     2010, when the defendant presented [the victim] with a
     quitclaim deed conveying [the property] to himself . . .
     [that the victim] was so mentally impaired that she could
     not understand the transaction that the defendant was
     asking her to enter into, including that she was selling
     her home to the defendant . . . [a]nd, two, that at that
     time the defendant knew or reasonably should have known
     that [the victim] was that incapable of understanding the
     transaction that the defendant was asking her to enter
     into."


     7
       Our cases have not held explicitly that a property owner's
mental state is probative of the unlawful taking element of the
crime of larceny by theft. Explicit references to consent as
affected by the owner's mental state are less common because in
the typical larceny prosecution, the lack of consent will be so
obvious from the circumstances that it is unnecessary to prove
this fact by direct evidence. See, e.g., Commonwealth v.
Donovan, 395 Mass. 20, 26 (1985) (placing phony night deposit
box at bank and taking cash deposits placed in box);
Commonwealth v. Luckis, 99 Mass. 431, 432 (1868) (grasping
object in another's pocket); Commonwealth v. Vickers, 60 Mass.
App. Ct. 24, 26 (2003) (concealing items from retail shop in
beach-style bag without paying for them); Commonwealth v. Lent,
46 Mass. App. Ct. 705, 708 (1999) (taking and carrying away
backpack of victim of attempted kidnapping).
                                                                   12


In settling on this principle as a correct interpretation of

Massachusetts law, the trial judge relied on cases from other

jurisdictions, State v. Calonico, 256 Conn. 135 (2001); and

People v. Camiola, 225 A.D.2d 380 (N.Y. 1996).8    The defendant

seizes on the judge's reliance on these cases to bolster his

argument that, under Massachusetts law, the victim's mental

incapacity has no bearing on the crime of larceny and that,

without legislative action, such evidence may not be considered

in the unlawful taking calculus.9   We disagree.


     8
       The court in State v. Calonico, 256 Conn. 135 (2001),
interpreted a statute closely analogous to G. L. c. 266, § 30
(1), to permit consideration of the victim's mental state on the
issue of consent. The Connecticut statute, Conn. Gen. Stat.
§ 53a-119 (2013), defines larceny as follows: "A person commits
larceny when, with intent to deprive another of property or to
appropriate the same to himself or a third person, he wrongfully
takes, obtains or withholds such property from an owner." The
Calonico court noted that, "[a]lthough [the statute does not]
specifically enumerate[] lack of consent as an element of
larceny . . . , we agree with New York's interpretation of N.Y.
Penal Law 155.05(1), a larceny statute containing language
similar to that of [Conn. Gen. Stat.] § 53a-119, that '[a]
donative victim's inability to consent to [a] taking [is a
factor] . . . properly considered in the context of a
traditional understanding of the larceny statute.'" Calonico,
supra at 154, quoting People v. Camiola, 225 A.D.2d 380, 380-381
(N.Y. 1996).
     9
       The defendant's argument mirrors the dissent in
Commonwealth v. Reske, 43 Mass. App. Ct. 522, 532-533 (1997)
(Gillerman, J., dissenting), which posited that because a
victim's mental incapacity is not an element of the offense of
larceny, it may not be offered as proof of the crime except by
legislative intervention. As did the majority in Reske, we
reject that limitation on the nature of evidence probative of
the defendant's guilt.
                                                                    13


     Our review of the common-law underpinnings of the crime of

larceny persuades us that, although lack of consent is not an

element of the offense, it is the sine qua non of the crime of

larceny.   In Commonwealth v. James, 1 Pick. 375, 383 (1823),

this court affirmed a larceny conviction with the observation

that the jury's guilty verdict is "well warranted, if, at the

time the defendant took [the owner's property, it was] not

lawfully in [the defendant's] possession with the consent of the

owner" (emphasis added).     Similarly, in Commonwealth v. White,

123 Mass. 430, 434-435 (1877), the court held that larceny is

proved if the evidence establishes that the defendant

"wrongfully and fraudulently [took] and carried away the goods

of another, with the felonious intent to convert them to his own

use and make them his own property without the consent of the

owner"10 (emphasis added).    These early cases, applying a

definition of larceny essentially unchanged since that time,

validate our view that the judge properly allowed evidence of

the victim's mental incapacity to establish the unlawful nature

of the taking of her property.    In circumstances such as this,

where larceny is committed through what appears to be a



     10
        The lack of consent is an implicit factor in other
contexts as well. See, e.g., Commonwealth v. Green, 399 Mass.
565, 567 (1987) (lack of consent implicit in legal definition of
both assault and battery and indecent assault and battery).
                                                                 14


consensual transaction, evidence probative of whether the victim

actually consented may be admitted during the Commonwealth's

case-in-chief or in rebuttal to the defense of consent.11

     Further, the Commonwealth may introduce evidence of the

victim's mental capacity as probative of whether the victim

actually consented to a transaction.   The notion that consent

may be vitiated by mental incapacity is recognized in our

criminal jurisprudence.   In Commonwealth v. Blache, 450 Mass.

583, 590 (2008), this court reaffirmed the long-standing rule,

first articulated in Commonwealth v. Burke, 105 Mass. 376, 380-

381 (1870), that the lack of consent element in a rape

prosecution may be proved by evidence that the victim lacked the


     11
       Our view that larceny may be proved by evidence that the
property owner lacked the mental capacity to consent is in
harmony with most of the cases from other jurisdictions where
the courts have interpreted similar statutes that do not include
lack of consent as an element of the crime. See Gainer v.
State, 553 So. 2d 673, 679 (Ala. Crim. App. 1989) ("even without
an express statutory provision . . . mental deficiency on the
part of the victim, which is known or should be known to the
defendant, can render ineffective the apparent consent by that
victim in a prosecution for theft"); Calonico, 256 Conn. at 153
(holding that mental capacity may be considered on issue of
victim's intent); People v. Cain, 238 Mich. App. 95, 128-129
(1999) (affirming larceny conviction because victim lacked
mental capacity to consent to taking); Camiola, 225 A.D.2d at
380-381 (holding that jury may consider victim's mental capacity
in determining whether defendant acted with victim's knowledge
and consent). Cf. State v. Maxon, 32 Kan. App. 2d 67, 79-80
(2003) (concluding that capacity of mentally handicapped victim
could not be considered under felony theft statute because
defendant's actions already covered under specific offense of
mistreatment of dependent adult).
                                                                    15


capacity to consent.    See Commonwealth v. Urban, 450 Mass. 608,

614 (2008).    In Blache, supra, the victim's lack of capacity to

consent was directly relevant to an element of the crime and,

therefore, unquestionably relevant in establishing the

defendant's guilt.

     Our case law, however, has not limited evidence of capacity

to consent to only those cases where consent is an element of

the offense.    In Commonwealth v. Reske, 43 Mass. App. Ct. 522,

524, 526 (1997), a case involving a prosecution for larceny by

false pretenses12 brought under G. L. c. 266, § 30 (1), the

Appeals Court weighed the victim's mental capacity to appreciate

the exploitative nature of the transaction promoted by the

defendant.    The defendant, a car salesman, was convicted on

evidence that he sold six different vehicles at inflated prices

to a mentally disabled customer.     Id. at 527.   In challenging the

sufficiency of the evidence, the defendant asserted a variation

of "caveat emptor" as a defense.13    The court rejected the


     12
       Larceny by false pretenses requires proof of the
following elements: (1) a false statement of fact was made; (2)
the defendant knew or believed that the statement was false when
he made it; (3) the defendant intended that the person to whom
he made the false statement would rely on it; and (4) the person
to whom the false statement was made did rely on it and
consequently parted with property. Mills, 436 Mass. at 396-397.
     13
       The court characterized the defense as, "[I]t is not a
crime to gull a willing dupe." Reske, 43 Mass. App. Ct. at 524.
                                                                    16


argument, reasoning that the owner's mental incapacity was

highly probative of the defendant's intent to induce the victim

to rely on a false statement14 and thereby part with his

property.    The fact that the victim's mental state was not an

element of the offense did not preclude consideration of that

evidence because it was otherwise relevant to an issue in the

case.     Likewise, it is appropriate here to allow such evidence

of the victim's mental incapacity insofar as it may be probative

of the unlawful taking element of the offense.

     Consent is a live issue in this case because the

Commonwealth's prosecution rested on the theory that the victim

did not consent to the transaction presented by the defendant.

In such a case, the Commonwealth is entitled, and indeed

required, to prove the lack of consent beyond a reasonable

doubt.    See Commonwealth v. O'Connell, 438 Mass. 658, 664 (2003)

(obligating Commonwealth to prove beyond reasonable doubt

absence of authority where defendant claims "authority" for

taking).    In so doing, the Commonwealth may meet its burden to

prove the lack of consent by evidence showing that it was


     14
        The defendant claimed in that case that the statements
asserting an inflated value for the vehicles were not false,
apparently because a vehicle was worth whatever a customer would
pay for it. The court declined to credit this argument, noting
that the statements were indeed false because the values would
be so obviously wrong to any person of normal intelligence.
Reske, 43 Mass. App. Ct. at 524, 526.
                                                                    17


neither voluntarily nor knowingly given.   See Commonwealth v.

Jackson, 432 Mass. 82, 85-86 (2000) (applying test to analogous

circumstances of waiver of rights under Miranda v. Arizona, 384

U.S. 436 [1966]).   Both of these factors entail a consideration

of the totality of circumstances surrounding consent, including

the mental state of the person whose consent is at issue.     See

Commonwealth v. Edwards, 420 Mass. 666, 673 (1995) (examining

"rational intellect" and "free will" to determine

voluntariness).   Therefore, the victim's mental capacity was

properly considered in the totality of the circumstances

determinative of whether the victim actually consented to the

transaction.

    Except for the argument that the law precludes

consideration of the victim's mental state, the defendant does

not suggest that the evidence is otherwise insufficient to prove

that the victim lacked the mental capacity to consent to the

transaction. Therefore, we need not address the factual

sufficiency of the evidence of an unlawful taking.

    4.   Specific intent to steal.   On the intent element of

larceny, the judge instructed himself that the requisite intent

may be proved by evidence that the defendant either knew or

should have known that the victim lacked the mental capacity to
                                                                 18


consent to the transaction.15   This was error.   Larceny is a

specific intent crime that requires the Commonwealth to prove

beyond a reasonable doubt that the defendant intended to steal

or deprive the owner permanently of the use of the property.

G. L. c. 277, § 39.   A defendant's mistaken but honest belief

that he has a right to the property negates the intent to steal.

See Commonwealth v. Liebenow, ante 151, 157 (2014); Commonwealth

v. Vives, 447 Mass. 537, 542 (2006); Commonwealth v. Stebbins, 8

Gray 492, 495-496 (1857).16   The defendant's claim at trial that

he honestly believed the victim voluntarily and intelligently

executed the quitclaim deed transferring her property to him

implicates this principle.    Cf. Commonwealth v. Newhook, 34

Mass. App. Ct. 960, 961 (1993) ("defense of honest . . . belief

may negate the element of a specific and felonious intent to

steal").

     Where, as here, a defendant asserts a claim of right

defense that allows for an honest, but mistaken, belief in the


     15
       Because the defendant neither raised this issue before
the judge nor objected to the judge's instructions on these
grounds, we review this aspect of the charge to determine
whether it resulted in a substantial risk of a miscarriage of
justice. Commonwealth v. Bolling, 462 Mass. 440, 452 (2012).
     16
       Although some prior cases concerning the claim of right
defense suggested a two-part test, whether the belief was honest
and whether it was reasonable, we recently clarified in
Commonwealth v. Liebenow, ante 151, 160 (2014), that an honest
belief need not be objectively reasonable.
                                                                    19


defendant's legal right to take property, we hold that it is not

enough that the Commonwealth prove that the defendant should

have known of the victim's incapacity.    Instead, if the

defendant meets his or her burden of production, the

Commonwealth must prove beyond a reasonable doubt that the

defendant knew that the victim lacked the mental capacity to

consent to the transaction.     Liebenow, supra at 161 n.15, citing

Vives, 447 Mass. at 541.     The burden of production is met "if

any view of the evidence" would support a factual finding that

the defendant honestly believed he or she had a legal right to

take property.    Liebenow, supra at 156, quoting Vives, supra.

The defendant's production of the quitclaim deed signed by the

victim would likely meet the defendant's burden in this regard

and, thereby, shift the burden to the Commonwealth to disprove

the defendant's claim of right.     See Commonwealth v. Gouse, 461

Mass. 787, 806 (2012) (producing license to carry firearm would

meet defendant's burden of production in asserting affirmative

defense of license to unlawful possession of firearm charge).

    If a defendant meets this burden of production, he or she

is entitled to an instruction directing a not guilty finding if

the Commonwealth fails to establish by proof beyond a reasonable

doubt that the defendant did not honestly believe that the

victim voluntarily and intelligently entered into the

transaction.     See Commonwealth v. White, 5 Mass. App. Ct. 483,
                                                                    20


488 (1977) ("defendant was entitled to an instruction to the

effect that he should be acquitted [of larceny] if the jury

should find that the defendant honestly . . . believed that the

money he took from [the victim] represented a debt actually due

from [the victim] to the defendant").   The judge's instruction

fell short of the mark in that it presented the option of a

guilty finding based on either actual knowledge that the victim

lacked the mental capacity to consent to the transaction or a

finding that the defendant should have known that she lacked

such capacity.

    In determining whether the error created a substantial risk

of a miscarriage of justice, "[w]e consider the strength of the

Commonwealth's case, the nature of the error, the significance

of the error in the context of the trial, and the possibility

that the absence of an objection was the result of a reasonable

tactical decision."   Commonwealth v. Bolling, 462 Mass. 440, 452

(2012), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

S.C., 444 Mass. 72 (2005).   Because of the possibility that the

guilty verdict was based only on proof that the defendant

"should have known" of the victim's mental incapacity, we

conclude that the error did result in a substantial risk of a

miscarriage of justice.

    The defendant's other intent argument is unavailing.      The

defendant claims that the Commonwealth failed to meet its burden
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to prove the intent to deprive the victim permanently of the

"use of her property" because the transaction granted her a life

estate.   G. L. c. 277, § 39.17   This argument fails.

    The elements of larceny do not comprehend a permanent

deprivation of an owner's "use" of her property.    See Mills, 436

Mass. at 391-392.   Rather, G. L. c. 277, § 39, was enacted only

to clarify that the crime of larceny encompasses the formerly

separate common-law crimes:    larceny by theft, larceny by

embezzlement, and larceny by false pretenses.    The statute did

not limit the permanent deprivation to the "use" of one's

property.   In any event, the judge could have discredited the

defendant's claim that the victim was granted a life estate.

The document purporting to create the life estate was not signed

by the victim and was not recorded with the deed conveying the

property to the defendant.    The judge also could have considered

that the defendant secured the property in a manner that would

have precluded the victim from entering it should she have

chosen to do so.    Absent a determination that the defendant had

an honest, albeit mistaken, belief that the victim had the

capacity to consent to the transaction, the evidence was

    17
       The defendant relies on the definition of larceny as the
"criminal taking, obtaining or converting of personal property,
with intent to defraud or deprive the owner permanently of the
use of it; including all forms of larceny, criminal embezzlement
and obtaining by criminal false pretences" (emphasis added).
G. L. c. 277, § 39.
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otherwise sufficient to prove an intent to deprive the victim of

the property permanently.

    5.   Fair notice of liability.   The defendant argues for the

first time on appeal that even if the transaction with the

victim was unfair, it may not be punished as a criminal act

because our law has not previously permitted consideration of a

victim's mental incapacity as evidence of an unlawful taking in

a prosecution for larceny.

    We are mindful, as the defendant suggests, that the law

must provide a "fair warning . . . of what the law intends to do

if a certain line is passed" and that a clear line is needed to

make the warning fair.   McBoyle v. United States, 283 U.S. 25,

27 (1931).   We recognize also that "[i]t is not the policy of

the law to punish criminally private wrongs."    Commonwealth v.

Drew, 19 Pick. 179, 185 (1837).   Nonetheless, we do not view our

interpretation of the law of larceny as compromising this

bedrock principle of the criminal law.   As we have said, the

notion of consent to a taking of one's property has deep roots

in our jurisprudence relating to the crime of larceny.    See

Liebenow, supra at 157, citing Commonwealth v. Brisbois, 281

Mass. 125, 128-129 (1932); Commonwealth v. McDuffy, 126 Mass.

467, 469 (1879); and Stebbins, 8 Gray at 495.    Nor do we narrow

the parameters of consent such that conduct previously deemed

permissible under our law is now prohibited.    Thus, we discern
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no undue risk of prosecution of persons who enter into

transactions with an honest but mistaken belief that the other

party voluntarily and intelligently agrees to be a participant

in a transaction.    See Commonwealth v. Golston, 373 Mass. 249,

254 (1977), cert. denied, 434 U.S. 1039 (1978).

    Conclusion.     Because the judge may have applied an

erroneous legal standard for the element of specific intent in

reaching his guilty finding, the conviction must be vacated.

Therefore, we remand the case for a new trial on the larceny

indictment where the Commonwealth must prove beyond a reasonable

doubt a specific intent to steal by evidence that the victim

lacked the mental capacity to consent to the transaction and

that the defendant knew that she lacked the mental capacity to

consent to the transaction.

                                     So ordered.
