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12-P-787                                               Appeals Court

              COMMONWEALTH    vs.   ROBERT ALDRICH (NO. 1).


                               No. 12-P-787.

           Middlesex.       March 4, 2015. - August 26, 2015.

               Present:    Cohen, Hanlon, & Sullivan, JJ.


Larceny.     Attempt.     Practice, Criminal, Duplicative convictions.



     Indictments found and returned in the Superior Court
Department on February 7, 2008.

     The cases were tried before Christopher J. Muse, J., and a
motion for a new trial was considered by him.


     Robert Herrick for the defendant.
     Kevin J. Curtin, Assistant District Attorney (Nicole
Allain, Assistant District Attorney, with him) for the
Commonwealth.


    SULLIVAN, J.        The defendant, Robert Aldrich, appeals from

his convictions of unarmed burglary in the nighttime (count I),

two counts of larceny over $250 (counts II and III), attempted
                                                                    2


larceny (count IV),1 and from the order denying his motion for

new trial.   He contends that the two larceny convictions are

duplicative, and that his conviction of attempted larceny is

duplicative of one of the larceny convictions.   We conclude that

the two larceny convictions are not duplicative because the

facts support two convictions based on two separate takings.      We

further conclude that attempted larceny is a lesser included

offense of larceny, and that, on the facts presented, the

attempted larceny conviction is duplicative of one of the

larceny convictions.2

     Background.   On January 6, 2008, at approximately 5:30

A.M., a 911 dispatcher received a telephone call from the owner

of a single-family home in Cambridge.   The caller relayed that

she had been awakened by the sound of a door closing and, upon

investigation, had found an uninvited man in her home.    Two

police officers observed a man, later identified as the

defendant, at the front door of the caller's home, along with a

stack of items on the front porch that later were identified as

the homeowner's possessions.   As the officers approached, the


     1
       The Commonwealth also sought sentencing enhancement as an
habitual offender.
     2
       The defendant also presented other arguments, which we
address in a memorandum and order pursuant to our rule 1:28,
issued this same day. Commonwealth v. Aldrich (No. 2), 88 Mass.
App. Ct.     (2015).
                                                                  3


defendant slammed the front door and ran inside toward the back

of the house.   Other police officers at the rear of the house

then saw the defendant jump through an open window "Superman-

style" and land face down in the snow.   The police found an

eyeglass screwdriver underneath the defendant.   An officer on

the scene compared the screwdriver with marks found near the

latch of the window, and testified that the marks were

consistent with the screwdriver found underneath the defendant.

    After the defendant's arrest, the police learned that

foreign currency was missing from the homeowner's foyer.     At the

police station, officers took and inventoried the defendant's

wallet, which contained foreign currency from five different

countries.   When the booking officer's back was turned, the

defendant retrieved the money.   The money subsequently was

discovered in the ceiling of the cell in which the defendant had

been held.

    The defendant appeared pro se at trial.    His primary

defense was that various workers had keys to the house, and that

no break had occurred.

    Discussion.    Represented by counsel on appeal, the

defendant now contends that (1) the two convictions of larceny

of over $250 in foreign currency are duplicative; and (2) one of

the convictions of larceny of over $250 in foreign currency and

the attempted larceny conviction are duplicative.
                                                                   4


    1.   Larceny of foreign currency.   "[S]uccessive takings of

property actuated by a single, continuing criminal impulse or

intent or pursuant to a general larcenous scheme may, but need

not, be charged as one crime."   Commonwealth v. Murray, 401

Mass. 771, 774 (1988).   Where the convictions "are derived from

separate and discrete acts, those convictions cannot be

duplicative."   Commonwealth v. Mahoney, 68 Mass. App. Ct. 561,

566 (2007).

    Here, the jury properly could have found that the defendant

took foreign currency that did not belong to him at two

different times and in two different locations -- once from the

homeowner's foyer, and a second time from the booking area at

the police station.   The defendant's contention that the police

did not have an ownership or possessory interest in the currency

is of no moment.   To sustain a conviction of larceny over $250,

the Commonwealth must establish that the defendant stole the

property "of another."   G. L. c. 266, § 30, as amended by

St. 1945, c. 282, § 2.   "Direct proof of ownership, though

preferable, is not essential, since the statute only requires a

showing that the defendant was not the owner."   Commonwealth v.

Souza, 397 Mass. 236, 238 (1986).   As we stated in Commonwealth

v. Kiernan, 348 Mass. 29, 50 (1964), cert. denied, 380 U.S. 913

(1965), "[a]n averment and a showing that a possessory or other

property interest in the thing stolen is in someone other than
                                                                    5


the thief and proof that the thief knew that he had no right to

the property taken are sufficient."   Compare Commonwealth v.

Pimental, 54 Mass. App. Ct. 325, 328 (2002) (defendant received

custody of weapons through official capacity as police officer,

but did not become owner with continued custody; retention and

later disposition amounted to theft of property of another).

     2.   Larceny and attempted larceny.   The defendant also

contends that the convictions of larceny of the foreign currency

from the home and attempted larceny of the items removed from

inside the house and placed on the porch were part of a single

larcenous act "at a single time and at a single place" and are

therefore duplicative.   Commonwealth v. LeBeau, 451 Mass. 244,

262-263 (2008).3   Because this issue was not raised below, we

review for error, and if there is error, whether the error

created a substantial risk of miscarriage of justice.

Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).

     There is little doubt that the taking of the foreign

currency from the home and the attempt to take the personal

belongings on the porch arose out of a single course of conduct,

and were part of a single larcenous scheme.   See LeBeau, supra.4


     3
       No argument has been made on appeal that the larceny was
complete once the goods were placed on the porch. See
Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27-28 (2003).
     4
       In LeBeau, the "relevant evidence demonstrate[d] that the
defendant . . . searched the victim's one-room apartment;
                                                                     6


Where one crime is a lesser included offense of the other, or

where there are multiple counts of the same offense, multiple

convictions must rest on separate and distinct acts.    See

Commonwealth v. Vick, 454 Mass. 418, 435-436 (2009), and cases

cited; Commonwealth v. Kelly, 470 Mass. 682, 700-701 (2015).

However, if the Legislature has explicitly authorized

convictions of separate and distinct statutory offenses arising

out of the same course of conduct, the convictions are not

duplicative.   Vick, supra.   We therefore must determine whether

attempted larceny is a lesser included offense of larceny, or

whether the Legislature intended attempted larceny to be a

separate and distinct offense.

    In determining whether one offense is a lesser included

offense of another, the "traditional rule in Massachusetts . . .

is that a defendant may properly be punished for two crimes

arising out the same course of conduct provided that each crime

requires proof of an element that the other does not. . . .     As

long as each offense requires proof of an additional element

that the other does not, neither crime is a lesser-included

offense of the other, and convictions on both are deemed to have



discovered, and took, cash, two rings, and the Keno tickets; and
fled. Because . . . there was 'but one incident' of taking from
the victim, at a single time and at a single place, the
defendant properly should have been indicted on only one charge
of larceny." Id. at 262-263 (citation omitted).
                                                                     7


been authorized by the Legislature and hence not [duplicative]."

Id. at 431 (citations omitted).    See Morey v. Commonwealth, 108

Mass. 433, 434 (1871).    Vick, supra, requires an elements-based,

not a conduct-based, analysis.

     Applying the Vick framework, the elements of larceny are:

(1) the unlawful taking and (2) carrying away (3) of the

property of another, (4) with the specific intent to deprive the

person of the property permanently.    See G. L. c. 266, § 30;

Commonwealth v. Donovan, 395 Mass. 20, 26 (1985); Commonwealth

v. Liebenow, 470 Mass. 151, 156 (2014).    The elements of attempt

also are defined by statute.5    Our case law has not been wholly

consistent with respect to whether noncompletion is an element

of the offense of attempt.   Most recently, the elements have

been stated as follows:   (1) the intent to commit the underlying

offense, (2) an overt act toward its commission, and (3)

"nonachievement of the substantive crime."    Commonwealth v.

Bell, 455 Mass. 408, 412 (2009), citing G. L. c. 274, § 6.6


     5
       General Laws c. 274, § 6, provides in pertinent part:
"Whoever attempts to commit a crime by doing any act toward its
commission, but fails in its perpetration, or is intercepted or
prevented in its perpetration, shall, except as otherwise
provided, be punished as follows."
     6
       Bell, supra, states that nonachievement of the substantive
offense is an element of the offense. Several earlier cases had
stated that there are two elements to a criminal attempt, intent
and an overt act. See, e.g., Commonwealth v. Peaslee, 177 Mass.
267, 271 (1901); Commonwealth v. Ortiz, 408 Mass. 463, 470
(1990); Commonwealth v. Rivera, 460 Mass. 139, 142 (2011);
                                                                   8


Nonachievement is defined as an overt act that "fail[ed] in its

perpetration, or [wa]s intercepted or prevented in its

perpetration."   G. L. c. 274, § 6.   See, e.g., Commonwealth v.

Marzilli, 457 Mass. 64, 66 (2010); Commonwealth v. Dixon, 34

Mass. App. Ct. 653, 655 (1993); Nolan & Sartorio, Criminal Law

§ 652 (3d ed. 2001).

     At first blush, under a strict Vick analysis, the

recitation of the elements of the offenses of attempt and

larceny, as set forth in Bell and Liebenow, suggest that each

crime contains an element the other does not, because larceny

requires the completed acts of taking and carrying away, while

attempted larceny requires an overt act coupled with a failure

of completion.   However, our case law historically has treated

attempt as a lesser included offense of the substantive crime.7

See Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974) (in


Commonwealth v. Sullivan, 84 Mass. App. Ct. 26, 27-30 (2013),
S.C., 469 Mass. 621 (2014). But see Commonwealth v. Gosselin,
365 Mass. 116, 120-121 (1974) (stating, in dicta, that failure
is not an element of the offense of attempt, without discussion
of G. L. c. 274, § 6). Our attempt statute is one of several
that reference not only an overt act, but failure, interception,
or interruption. See, e.g., Cal. Penal Code § 664 (West 2010);
Fla. Stat. Ann. § 777.04 (West 2010); Idaho Code Ann. § 18-306
(West 2014); Kan. Stat. Ann. § 21-5301 (West 2014); Mich. Comp.
Laws Ann. § 750.92 (West 2004); R.I. Gen. Laws Ann. § 11-41-6
(West 2006); Vt. Stat. Ann. 13, § 9 (2009).
     7
       In some jurisdictions the Legislature has defined attempt
crimes as lesser included offenses by statute. See, e.g., 720
Ill. Comp. Stat. Ann. 5/2-9 (West 2002); Minn. Stat. Ann.
§ 609.04 (West 2009); N.Y. Penal Law § 110.00 (McKinney 2009).
                                                                    9


dictum, "[A] charge of a completed crime logically includes a

charge of an attempt to commit it"); Commonwealth v. Porro, 458

Mass. 526, 533 (2010) (attempted battery is lesser included

offense of battery).    See also Commonwealth v. Banner, 13 Mass.

App. Ct. 1065, 1066 (1982) (attempt is lesser included offense,

relying on Gosselin); Commonwealth v. Capone, 39 Mass. App. Ct.

606, 609 (1996) (same, in dicta); Nolan & Sartorio, Criminal Law

§ 652, at 652 n.18 (3d ed. 2001) (same, citing Gosselin and

Banner).   In Porro, supra, the court concluded that the

"attempted battery theory of assault is clearly a lesser

included offense of intentional assault and battery; the

elements are the same except that intentional assault and

battery contains the additional element that the battery be

completed by an actual touching of the victim."

     We construe Porro to mean that completion of a substantive

offense and the noncompletion of the objective of the overt act

are not separate and distinct elements for purposes of double

jeopardy analysis, and conclude that the present case is

controlled by Porro.8   Completion and noncompletion are two sides

of the same coin -- the presence or absence of a single element.


     8
       Our holding relies on the reasoning in Porro, not
Gosselin, as later developments have called into question the
outcome in Gosselin. See Brown v. Ohio, 432 U.S. 161, 166-169
(1977); Commonwealth v. D'Amour, 428 Mass. 725, 748 (1999). See
also Commonwealth v. Lourenco, 438 Mass. 1018, 1019 (2003).
                                                                  10


Put another way, "a 'lesser included offense is one which is

necessarily accomplished on commission of the greater crime.'"

Id. at 531, quoting from Commonwealth v. D'Amour, 428 Mass. 725,

748 (1999).   Therefore, whether noncompletion is a separate

element of attempt, or a further refinement of the definition of

the overt act, is immaterial, because under either formulation,

attempted larceny is a lesser included offense of larceny.

    Treating completion and noncompletion as the presence or

absence of a single element, rather than distinct elements of

separate offenses, serves the purpose of our common law of

double jeopardy.   This approach addresses the concern that

defining attempt and the substantive offense as separate crimes

opens the door to strained and inconsistent verdicts, including

acquittal of both attempt and the substantive offense in

successive prosecutions.   See Perkins & Boyce, Criminal Law, at

615 (3d ed. 1982).   See also Gosselin, 365 Mass. at 121.

"Lesser included offenses serve an important purpose by allowing

the jury to convict of the offense established by the evidence,

rather than forcing them to choose between convicting the

defendant of an offense not fully established by the evidence or

acquitting, even though the defendant is guilty of some

offense."   Porro, supra at 532 (citation omitted).

    We also acknowledge our dicta in Commonwealth v. Foley, 24

Mass. App. Ct. 114, 117 n.5 (1987), which cautioned against
                                                                 11


reflexively treating attempt as a lesser included offense,

because attempt crimes have as an element a specific intent to

commit all of the elements of the offense, while most crimes

(including larceny) do not require specific intent as to all of

the elements of the substantive offense.   In some circumstances,

where one crime carries a requirement of specific intent and

another is a general intent crime, the crimes are not

duplicative because each has an element that the other does not.9

Although the question of general versus specific intent was not

expressly discussed in Porro, we understand the reasoning in

Porro to mean that there are offenses in which the attempt and

the substantive offense are so closely related that the purposes

of the lesser included offense jurisprudence are not served by a

strict application of the doctrine with respect to the element

of intent.   This is one such case.10


     9
       For example, in Vick, the court held that armed assault
with intent to murder is not duplicative of assault and battery
by means of a dangerous weapon causing serious bodily injury,
not only because of the use of a weapon and proof of a battery,
but because armed assault with intent to murder requires proof
of specific intent to kill, while assault and battery by means
of a dangerous weapon causing serious bodily injury requires
only a showing of general intent. 454 Mass. at 432.
     10
       We also recognize that there is, as a practical matter,
residual tension between Porro, supra at 532, which states the
general rule that a single indictment for the greater offense
allows the jury to be instructed as to the lesser included
offense, and Gosselin, 365 Mass. at 121-122, which held that the
trial court had no jurisdiction over the crime of attempt where
the criminal complaint, which alleged a completed escape, failed
                                                                  12


    We hold that attempted larceny is a lesser included offense

of larceny, and that the two offenses are, for purposes of

double jeopardy, a single offense.   Because the verdict here was

based on a single act of larceny, the conviction of the lesser

offense must be vacated.   See LeBeau, 451 Mass. at 262-263.     See

also Commonwealth v. Kelly, 470 Mass. at 700-701 (substantial

risk of miscarriage of justice standard applied to duplicative

convictions).

    Accordingly, on the indictment charging attempted larceny

(count IV), the judgment is vacated, the verdict and the

habitual offender finding are set aside, and the indictment is

to be dismissed.   The remaining judgments are affirmed.   The

order denying the defendant's motion for new trial is affirmed.

                                     So ordered.




to allege an overt act short of a completed escape. See Foley,
supra at 117 (judge improperly submitted case to jury on the
charge of inducement and attempted inducement, where indictment
failed to allege overt act). See also G. L. c. 277, § 79;
Criminal Model Jury Instructions for Use in the District Court
4.120 n.6 (2014) (citing Gosselin and Foley). The Supreme
Judicial Court has observed the apparent conflict between
Gosselin and other decisions holding that an indictment that
does not allege all of the elements of the crime may be
sufficient, stating "there is a question whether the overt act
requirement remains valid to describe fully and plainly the
charge of attempt to the defendant, or if it reflects an
anachronistic view of sufficient indictments and complaints."
Commonwealth v. Lourenco, 438 Mass. 1018, 1019 (2003) (referring
question to advisory committee on Massachusetts Rules of
Criminal Procedure).
