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SJC-11762

                  RONALD RENAUD   vs.   COMMONWEALTH.



            Suffolk.    March 3, 2015. - April 17, 2015.

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



Erroneous Conviction. Practice, Civil, Motion to dismiss.
     Evidence, Identity.



     Civil action commenced in the Superior Court Department on
May 16, 2013.

    A motion to dismiss was heard by Thomas A. Connors, J.

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


     Jeffrey T. Collins, Assistant Attorney General, for the
Commonwealth.
     Timothy St. Lawrence for the defendant.
     Stephanie Roberts Hartung & Drew Glassroth, for New England
Innocence Project & another, amici curiae, submitted a brief.


    HINES, J.    After a jury-waived trial in the District Court,

a judge found the plaintiff, Ronald Renaud, guilty of malicious

destruction of property, breaking and entering in the daytime,
                                                                   2


and larceny over $250.   On appeal, the Appeals Court overturned

Renaud's convictions, concluding that the evidence was

insufficient to support them.1   See Commonwealth v. Renaud, 81

Mass. App. Ct. 261, 263, 265 (2012).   Renaud thereafter filed a

complaint in the Superior Court under G. L. c. 258D, the

erroneous convictions statute, seeking compensation for his

erroneous convictions.   The Commonwealth moved to dismiss the

complaint, which a judge denied,2 and the Commonwealth appealed.

See Irwin v. Commonwealth, 465 Mass. 834, 835 (2013) ("Because

the erroneous convictions statute provides only a limited waiver

on the Commonwealth's sovereign immunity, we conclude that the

doctrine of present execution applies to claims brought under

that statute, and thus that interlocutory appeal is

appropriate").   We transferred the case here on our own

initiative to determine whether, under G. L. c. 258D, § 1 (B),

the reversal of Renaud's convictions due to insufficient

evidence amounts to "grounds which tend to establish" his

innocence, thus rendering him eligible to obtain relief under




     1
       The plaintiff had served more than 490 days in a house of
correction for the sentence he received on these convictions.
     2
       In his denial of the Commonwealth's motion, the Superior
Court judge inadvertently labeled his decision as one in
response to the Commonwealth's motion for a judgment on the
pleadings.
                                                                          3


the statute.   We conclude that it does.      We therefore affirm the

denial of the motion to dismiss.

      Background and prior proceedings.3      The relevant facts, as

introduced by the Commonwealth before it closed its case, are

that a break-in occurred in a Falmouth home.        Renaud, 81 Mass.

App. Ct. at 262.     Four television sets, a digital video disc

player, and items of sports memorabilia were missing.         Id.   No

one was seen perpetrating the break-in or stealing the property

from the home.     Id.   While examining the living room after being

called to the scene, a police officer recovered from the floor

an electronic bank transfer (EBT) card bearing the name of the

plaintiff.   Id.   The EBT card had been cut into three separate

pieces and was taped together.       Id.   The owner of the home and

the residents thereof did not recognize the plaintiff's name.

Id.   The police officer, however, did recognize the name and was

aware that the plaintiff recently had resided in Falmouth.          Id.

at 263.

      The next day, a detective telephoned the plaintiff's

cellular telephone and recognized his voice.        Id.   The detective

informed the plaintiff that someone had found his EBT card on

the side of the road.      Id.   The plaintiff stated that he did not


      3
       The background is derived from the facts set forth in the
Appeals Court's decision. See Irwin v. Commonwealth, 465 Mass.
834, 835 (2013).
                                                                       4


know that his card was missing and that he would have to go home

and "check because he had not really looked for it."      Id.   The

detective informed the plaintiff that if he wanted to pick up

the card, he would have to come to the police station.      Id.   The

plaintiff did not do so.    Id.

       The Appeals Court reversed the plaintiff's convictions, set

aside the verdicts, and entered judgments in favor of the

plaintiff because it determined that the Commonwealth's evidence

was insufficient to prove that the plaintiff was the person who

had committed the charged crimes.     Id. at 263, 265.   The Appeals

Court noted that "[t]he convictions here were based almost

entirely on the fact that an EBT card bearing [the plaintiff's

name] was found on the floor of the living room of the

burglarized house."    Id. at 263.   Although the Appeals Court

determined that, because the EBT card bore the plaintiff's name,

that it could reasonably be inferred that he was at one point in

possession of it, the court concluded that "the Commonwealth has

presented no evidence that [the plaintiff] possessed, and

subsequently dropped, his EBT card during the crime[s]."        Id. at

264.    The Appeals Court went on to state that "the fact that the

card was found taped together in three pieces evidences that it

had been discarded by its owner on some prior occasion."        Id.

In sum, the Appeals Court reasoned, "ownership of an EBT card

cannot allow a fact finder to conclude beyond a reasonable doubt
                                                                     5


that the owner of the card was in possession of it during the

commission of a crime."   Id.    Concerning the Commonwealth's

arguments regarding the facts that the plaintiff lived in the

same town where the crimes were committed and was known to

police, the Appeals Court concluded that those facts only showed

that the plaintiff may have had the ability to commit the

crimes, but were not proof that he did in fact commit them.      Id.

The Appeals Court did not find significant the fact that the

plaintiff did not retrieve his EBT card from police where he had

not been ordered to do so.      Id., citing Commonwealth v.

Stuckich, 450 Mass. 449, 453 (2008) (where detective did not

order defendant to do anything, consciousness of guilt

instruction not warranted where detective told defendant about

criminal charges against him, asked him to call back later, and

he did not call back).

    Statutory overview.      The erroneous convictions statute was

enacted to ensure that "those erroneously convicted but

factually innocent be afforded equal opportunities to obtain

compensation."   Irwin, 465 Mass. at 847.    Notably, the statute

"waives sovereign immunity 'for an erroneous felony conviction,"

G. L. c. 258D, § 1 (A), then establishes the class of claimants

'eligible to obtain relief.'     [Id. at § 1 (B)]."   Irwin, supra

at 841-842.
                                                                       6


       In order to be entitled to compensation under the statute,

the "threshold matter of eligibility as a member of the class of

claimants eligible to pursue relief" must be decided.        Id. at

842.       Then, a claimant must establish at trial, by clear and

convincing evidence, that he or she did not commit the offense

charged.      Id. at 839.

       As relevant here, concerning eligibility, G. L. c. 258D,

§ 1 (B) (ii), provides:

            "The class of persons eligible to obtain relief under
       this chapter shall be limited to the following: . . .
       those who have been granted judicial relief by a state
       court of competent jurisdiction, on grounds which tend to
       establish the innocence of the individual as set forth in
       clause (vi) of subsection (C),[4] and if (a) the judicial
       relief vacates or reverses the judgment of a felony
       conviction, and the felony indictment or complaint used to
       charge the individual with such felony has been dismissed .
       . . and (b) at the time of the filing of an action under
       this chapter no criminal proceeding is pending or can be
       brought against the individual by a district attorney or
       the attorney general for any act associated with such
       felony conviction."

"We have interpreted the word 'grounds' in that statute as

meaning 'basis.'"       Irwin, 465 Mass. at 843.   We concluded that

"the requirement that judicial relief must have been granted on

'grounds which tend to establish the innocence' of a claimant


       4
       General Laws c. 258D, § 1 (C) (vi), provides that a
claimant must establish that he or she "did not commit the
crimes or crime charged in the indictment or complaint or any
other felony arising out of or reasonably connected to the facts
supporting the indictment or complaint, or any lesser included
felony."
                                                                    7


does not limit the threshold question of eligibility for relief

'to individuals whose convictions were vacated or reversed

strictly on the basis "of compelling or overwhelming exculpatory

evidence," that is, on the grounds that they were actually

innocent.'"    Id. at 844, quoting Guzman v. Commonwealth, 458

Mass. 354, 359 (2010).   "Rather, 'grounds which tend to

establish' a plaintiff's innocence require that a conviction be

overturned 'on grounds resting upon facts and circumstances

probative of the proposition that the claimant did not commit

the crime.'"   Irwin, supra, quoting Guzman, supra.   Last, "[w]e

have cautioned, however, that such grounds must 'tend[] to do

more than merely assist the defendant's chances of acquittal.'"

Irwin, supra, quoting Guzman, supra at 360.

    Discussion.    The Commonwealth argues that it was entitled

to have the plaintiff's complaint dismissed because the

plaintiff did not meet his threshold burden of proving

eligibility, specifically, that his convictions were overturned

"on grounds which tend to establish [his] innocence" under G. L.

c. 258D, § 1 (B) (ii).   The Commonwealth advances separate

arguments in support of its position.

    The Commonwealth first argues that the only claimants

eligible under the statute are those who are "in fact,

innocent."    As previously indicated supra, we have expressly

rejected this interpretation.   See Irwin, 465 Mass. at 844.
                                                                   8


Although § 1 (B) (ii) references § 1 (C) (vi), the eligibility

requirement is "separate and distinct from the merits of the

claim of relief that a claimant must establish at trial," namely

that he or she did not commit the charged offense.     Irwin, supra

at 839, 842.   The Commonwealth improperly conflates the two

stages set forth in the statute.

     Next, the Commonwealth contends that, although the Appeals

Court's grounds for reversal concerned the Commonwealth's

ability to prove the plaintiff's guilt beyond a reasonable

doubt, the grounds did not tend to establish his actual

innocence.   The Commonwealth asserts that, "categorically,"

insufficient evidence of guilt does not necessarily equate to

actual innocence.5   We do not disagree with this broad statement.

However, contrary to the Commonwealth's contention, there is no

need for us to make any "categorical" pronouncement.    Rather,

the unique facts of this case inform our decision.   Here, the

     5
       Our cases addressing the erroneous convictions statute
have not addressed this issue. Our decision in Irwin, 465 Mass.
at 835, 855, involved the erroneous admission of evidence of the
plaintiff's prearrest silence as purportedly probative of his
innocence. In Guzman v. Commonwealth, 458 Mass. 354, 359-360,
363-365 (2010), the underlying convictions were overturned based
on new evidence of exculpatory testimony from two witnesses whom
defense counsel failed to call to testify at trial. In Drumgold
v. Commonwealth, 458 Mass. 367, 376-377 (2010), we were faced
with a new trial that had been granted based on newly discovered
evidence that would have challenged the credibility of a key
prosecution witness and the nondisclosure of exculpatory
evidence relating to the credibility of another prosecution
witness.
                                                                      9


Commonwealth's "insufficient evidence" pertained to the identity

of the defendant.    As such, we conclude that the Commonwealth's

inability to establish, viewed in a light most favorable to it,

that the plaintiff was the person who committed the crimes, is

entirely "probative of the proposition that [the plaintiff] did

not commit the crime[s]."    See Guzman, 458 Mass. at 362.     This

case is not one where there exists other evidence offered by the

Commonwealth implicating the plaintiff in the charged crimes.6

Cf. Irwin, 465 Mass. at 855 (noting that "exclusion of the

nonprobative and irrelevant evidence would have had no bearing

on the weight of the remaining evidence").    We add that the

grounds on which the plaintiff sought relief "do more than

merely assist [his] chances of acquittal," Guzman, supra at 360;

the grounds required his actual acquittal.   In the circumstances

of this case, a reversal of the plaintiff's convictions based on

the absence of evidence that he was the person who committed the

crimes is probative of innocence and the plaintiff has satisfied

his threshold burden of establishing eligibility under the

statute.    Our conclusion does not entitle the plaintiff to

relief.    He is entitled to relief only if he proves at trial by


     6
       We agree with the reasoning of the Appeals Court
concerning the significance, or lack thereof, of the facts at
trial pertaining to the defendant residing in the area where the
crimes were committed, being known to police, and not retrieving
his electronic bank transfer card from police. See Commonwealth
v. Renaud, 81 Mass. App. Ct. 261, 264-265 (2012).
                                                             10


clear and convincing evidence that he did not commit the

offenses charged.

                                   Order denying motion to
                                     dismiss affirmed.
