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16-P-314                                                   Appeals Court

                  COMMONWEALTH    vs.   JOHN H. BIESIOT.


                               No. 16-P-314.

           Suffolk.       January 10, 2017. - July 19, 2017.

           Present:     Grainger, Wolohojian, & Neyman, JJ.1


Practice, Criminal, Required finding. Evidence, Consciousness
     of guilt, Identity, Inference. Massachusetts Bay
     Transportation Authority.



     Complaints received and sworn to in the Brighton Division
of the Boston Municipal Court Department on February 18, 2010,
February 15, 2012, and September 25, 2012.

     The cases were tried before David T. Donnelly, J.


     Dana Alan Curhan for the defendant.
     Nicholas Brandt, Assistant District Attorney, for the
Commonwealth.


     NEYMAN, J.       After a jury trial in the Brighton Division of

the Boston Municipal Court Department, the defendant, John H.

Biesiot, was convicted of fifteen counts of vandalizing


     1
       Justice Grainger participated in the deliberation on this
case prior to his retirement.
                                                                    2


property.   On appeal, he contends that the evidence was

insufficient to establish that he committed the offenses.2   We

affirm in part and reverse in part.

     Background.    We summarize the facts as the jury could have

found them, reserving certain details for our analysis of the

issues raised on appeal.    Lieutenant Detective Nancy O'Loughlin

(Lieutenant O'Loughlin) of the Massachusetts Bay Transportation

Authority (MBTA) police has spent nearly three decades

investigating and prosecuting graffiti vandalism, also referred

to as "tagging."    See Commonwealth v. Iago I., 77 Mass. App. Ct.

327, 331 (2010) (referencing practice of spray painting name or

sign on particular location as "tagging").    She had extensive

training on and experience with investigating tagging incidents

and the tagging "subculture."3   Lieutenant O'Loughlin described

how individuals engaged in the tagging subculture tend to adopt

a "specific tag name," which is akin to a signature that

represents the tagger's identity, and provides the tagger

"credit or fame."   She testified that taggers often congregate

and form a "crew," adopt a crew name, typically with a three-

letter acronym, and "go out on missions" to place their crew and

     2
       The defendant appeals from the judgments on fifteen
charges in three separate complaints.
     3
       Lieutenant O'Loughlin is the primary instructor for
graffiti vandalism classes in Massachusetts, has taught "close
to a hundred" trainings on the subject, and has participated in
several hundred tagging investigations.
                                                                   3


individual tags on a targeted location, often at or near rival

crews' tags.   The crew tag is often placed "alongside the

[individual's] tag, or somewhere in the tag."

     In October, 2005, Lieutenant O'Loughlin, later assisted by

members of a joint task force that included Boston police

Detective William Kelley, began to investigate a series of

related tagging incidents in the Boston area involving MBTA

property.4   Specifically, on October 12, 2005, the tag "Wyse" was

found on trains at the Orient Heights Station in the East Boston

section of Boston.   On February 8, 2007, trains at either the

Forest Hills or the Wellington train yard were vandalized with

the tags "Wyse" and "D-30."   On January 12, 2008, fourteen

trolleys at the Reservoir train yard in the Brighton section of

Boston were vandalized with the tags "Wyse" and "D-30."      On

March 16, 2008, a train at the Codman Square train yard was

defaced with the tags "Wyse" and "D-30."   Finally, on March 15,

2010, a train at the underground Alewife train yard was

vandalized with the tag "D-30."

     Through their investigation, Lieutenant O'Loughlin and

Detective Kelley learned that the "D-30" and "Wyse" tags were

associated with the "Dirty Thirty" crew.   Lieutenant O'Loughlin

also received a video and still photographs that depicted the


     4
       Photographs of the tags from each of the incidents were
admitted in evidence as exhibits.
                                                                    4


defendant spray painting "D-30" on the side of a newspaper box.5

In June, 2008, O'Loughlin and Kelley executed a search warrant

at an apartment in the Allston section of Boston where the

defendant purportedly was staying.   They found, inter alia, mail

in the defendant's name, his name listed on the mailbox for

apartment 3, a pair of paint-stained sneakers, a canister with a

design containing the word "Wyse," street maps of Boston, and

"assorted graffiti photos, graffiti posters, some books, and the

like."

     Criminal complaints issued, charging the defendant with two

counts of defacing the Alewife Station property, twelve counts

of defacing the Reservoir Station property, one count of

defacing the Codman Square property, five counts of defacing the

Orient Heights Station property, and two counts of defacing the

Forest Hills Station property.   The defendant was ultimately

convicted of vandalizing trains at the Reservoir, Codman Square,

and Alewife Stations, and acquitted of tagging trains at the

Orient Heights and Forest Hills Stations.6   This appeal ensued.


     5
       The still photographs of the defendant spray painting "D-
30" on the newspaper box were obtained "from an organization in
Minnesota" and were admitted in evidence as exhibits.
     6
       The defendant was sentenced as follows. On the Codman
Square conviction, one year and one day in the house of
correction. On the Reservoir convictions (all concurrent, from
and after the Codman Square sentence): three years' probation
(on seven counts); ninety days in the house of correction,
suspended for three years (on four counts); and thirty days in
                                                                    5


    Discussion.     Sufficiency of the evidence.   We review the

defendant's claims to determine "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."     Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v.

Virginia, 443 U.S. 307, 318–319 (1979).

    1.   Alewife incident.    The evidence was sufficient to

identify and convict the defendant as the individual who tagged

the trains at the Alewife station.    First, around 3:45 A.M. on

March 15, 2010, an MBTA employee discovered a freshly painted

"D-30" tag on a train he was preparing for service.     He knew

that the train had been tagged recently because he had observed

the outside of the train around 1:30 A.M. and saw nothing of

significance.   Additionally, he could smell fresh paint from

inside the train.     From within the train, he observed the

defendant in close proximity setting up a camera and tripod

aimed at the train.    The MBTA employee saw the defendant walk

toward the train and saw that a "flash went off."     The MBTA

employee also saw a second person talk to the defendant briefly

and then leave the area.    The MBTA employee was able to observe



the house of correction, suspended for three years (on one
count). On the two Alewife convictions (concurrent sentences,
from and after the sentences on the Reservoir convictions):
three years' probation.
                                                                   6


the defendant for twenty to twenty-five minutes and to identify

him in photographs as well.7

     In addition, photographs depicting the defendant spray

painting "D-30" on the side of a newspaper box, and evidence

obtained through the search of the Allston apartment connecting

the defendant to graffiti, were admitted in evidence.      The

totality of this evidence, viewed in conjunction with Lieutenant

O'Loughlin's and Detective Kelley's testimony regarding the

Dirty Thirty crew and the use of crew names in tagging missions,

allowed a rational jury to conclude that the defendant had

vandalized the train.   While it is conceivable that the

defendant emerged in an underground MBTA train yard in the early

morning hours, before the trains were in service, equipped with

a camera and a tripod, and photographed freshly painted graffiti

for non-nefarious reasons, a rational jury could have reasonably

inferred that the defendant photographed himself in front of the

freshly painted graffiti to memorialize his recent vandalism in

order to gain "credit or fame."   Compare Commonwealth v. Todd,

394 Mass. 791, 794-795 (1985) (lurking near murder scene

combined with other conduct could be viewed as consciousness of

guilt).   Inferences need only be reasonable; they "need not be



     7
       Lieutenant O'Loughlin showed the MBTA employee photographs
from which he identified the defendant as the individual whom he
had observed setting up the camera.
                                                                   7


necessary or inescapable."   Commonwealth v. Merry, 453 Mass.

653, 661 (2009) (quotation omitted).

    We are also not persuaded by the defendant's claim that,

because the MBTA employee briefly observed a second unidentified

individual near the crime scene, the jury could equally have

inferred that someone else was the tagger.   The defendant alone

lingered at the crime scene for at least twenty to twenty-five

minutes and took great care to photograph the graffiti with a

camera and tripod.   This is not a case where the evidence "tends

equally to sustain either of two inconsistent propositions."

Id. at 663 (quotation omitted).

    2.   Reservoir and Codman Square incidents.   The evidence

concerning the Reservoir train yard incident and the Codman

Square incident presents a more challenging analysis.   In both

instances, the trains were tagged with "Wyse" and "D-30."

However, unlike the Alewife incident, there was no evidence that

the defendant was at or near the Codman Square or Reservoir

Stations on the dates of the offenses.   Moreover, there was no

evidence that the defendant had ever been at or near these

stations.

    The Commonwealth contends that, although it could not place

the defendant at the crime scenes with direct evidence, the tag

"Wyse" was a "signature" or "moniker" associated with the

defendant; that a jury could use the tag to identify the
                                                                   8


defendant; and thus a jury could conclude that where property

had been tagged with "Wyse," the defendant had painted the

graffiti.   The Commonwealth's argument falls short because the

link between the defendant and the vandalism at the Codman

Square and Reservoir Stations is too attenuated to sustain a

conviction.

     Viewed in the light most favorable to the Commonwealth, the

evidence connected the defendant to graffiti generally, the

tagging culture, the Dirty Thirty crew, and a version of a "D-

30" tag.8   The evidence also circumstantially linked the

defendant to the name "Wyse," but the connection was limited to

the canister found at the Allston apartment and the testimony

that investigators operated under the belief that the defendant

was "Wyse."   While Lieutenant O'Loughlin proffered the opinion9

that a tag is like a signature that speaks to a tagger's

identity, notably absent was any evidence describing the

purported unique features of the tags, or connecting the

     8
       The photographs admitted in evidence show varying designs
of the "D-30" tag. The Commonwealth did not present evidence,
expert or otherwise, distinguishing the various tags or
describing the purported uniqueness of any "D-30" designs.
     9
       The defendant contends that the trial judge erred in
admitting the investigating officers' opinion testimony because
it was speculative, lacked proper foundation, and was based
solely on inadmissible hearsay. Where we conclude that the
Commonwealth presented insufficient evidence that the defendant
committed the Codman Square and Reservoir Stations offenses, and
where the alleged error had no bearing on the Alewife Station
charges or convictions, we need not resolve this issue.
                                                                       9


particular tags at the Codman Square and Reservoir Stations to

the defendant.   To the contrary, the testimony at trial

reflected differences in the various tags containing the word

"Wyse," ranging in size, style, and elaborateness.

    More problematic for the Commonwealth is the dearth of

evidence linking or even comparing the design on the canister to

any other tag bearing the name "Wyse."   Indeed, the canister was

neither shown to the jury nor admitted as an exhibit.      Thus, the

jury could not compare the alleged "signatures" and could not

examine whether the "Wyse" on the canister matched or resembled

the "Wyse" on the trains.   Contrast Commonwealth v. O'Connell,

438 Mass. 658, 662 (2003) ("Where signatures of the defendant

have been admitted in evidence as genuine and submitted to the

jury, they may be used as a standard against which the jury may

compare the disputed signatures and decide the question of

authorship without the need for expert testimony").

    In short, the conclusory claim that the defendant "was

Wyse," combined with the defendant's connection to graffiti

materials found several miles from the crime scenes, several

months after the graffiti was found, was insufficient to prove

beyond a reasonable doubt that the defendant is the "Wyse" who

tagged the particular property at issue on the dates in

question.   Absent some evidence connecting the defendant to the

design on the trains, a rational jury could not conclude beyond
                                                                    10


a reasonable doubt that the defendant vandalized these trains.

The Commonwealth cites no precedent that compels a different

result.

     We do not foreclose the possibility that a tag's unique

features may, in combination with other direct or circumstantial

evidence, provide sufficient indicia to prove a tagger's

identity beyond a reasonable doubt.    Such evidence might include

expert testimony if the required foundation and reliability

requirements are satisfied.10   See Commonwealth v. Lanigan, 419

Mass. 15, 25-26 (1994); Mass. G. Evid. § 702 (2017).    That

notwithstanding, the Commonwealth did not present such evidence

in this case.    Hence, a rational jury would have needed to

speculate that the "Wyse" tags on the train were so distinctive

that they established beyond a reasonable doubt that only one

person, the defendant, painted them.11   A conviction may not rest

upon such conjecture.    See Commonwealth v. Mandile, 403 Mass.

93, 94 (1988).    See also Commonwealth v. Cardenuto, 406 Mass.

450, 456-457 (1990) (circumstantial evidence insufficient to

sustain arson conviction).    Accordingly, the convictions on the

Reservoir and Codman Square incidents cannot stand.

     10
       We do not hold that expert testimony is required to prove
a tagging case grounded in circumstantial evidence. See, e.g.,
Commonwealth v. O'Connell, 438 Mass. at 662-663.
     11
       The Commonwealth did not proceed on a joint venture
theory and the jury were not instructed on the elements of joint
venture.
                                                                   11


    Conclusion.   On complaint numbers 1008-CR-196 and 1208-CR-

153 (the Reservoir and Codman Square incidents), the judgments

are reversed, the verdicts are set aside, and judgments shall

enter for the defendant.   On complaint number 1208-CR-1050 (the

Alewife incident), the verdicts shall stand; the sentences on

those counts are vacated, and the case is remanded for

resentencing.

                                    So ordered.
