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08-P-986                                                Appeals Court

                  COMMONWEALTH     vs.   DAVID COUTU.


                            No. 08-P-986.

    Middlesex.      September 17, 2015. - September 15, 2016.

             Present:    Katzmann, Meade, & Rubin, JJ.


Burning of Property.    Attempt.   Practice, Criminal, Required
     finding.



     Indictment found and returned in the Superior Court
Department on August 15, 2006.

     The case was tried before S. Jane Haggerty, J.

     After review by the Appeals Court, the Supreme Judicial
Court denied leave to obtain further appellate review, but
remanded the case to the Appeals Court for reconsideration.


     Amy M. Belger for the defendant.
     Randall F. Maas & Bethany Stevens, Assistant District
Attorneys, for the Commonwealth.


     MEADE, J.   In Commonwealth v. Coutu, 88 Mass. App. Ct. 686

(2015) (Coutu No. 1), this court affirmed the defendant's

convictions of aggravated rape, home invasion, mayhem, armed

robbery, and kidnapping, and reversed his convictions of assault
                                                                      2


and battery by means of a dangerous weapon causing serious

bodily injury and attempt to burn personal property.

Thereafter, the Commonwealth sought further appellate review and

challenged the reversal of the defendant's conviction of attempt

to burn personal property.    The Supreme Judicial Court denied

the application without prejudice and remanded the matter to

this court. 1   Commonwealth v. Coutu, 474 Mass. 1103 (2016).    On

remand, we have been instructed to reconsider our reversal of

that conviction (based on insufficient evidence) in light

of Commonwealth v. LaBrie, 473 Mass. 757 (2016).    Having done

so, we now affirm the defendant's conviction of attempt to burn

personal property.

     The facts of this case are set out in detail in Coutu (No.

1), supra at 687-692.    In broad outline, the defendant, a

stranger to the victim, broke into her apartment by tunneling

through the wall of an adjacent apartment with a crowbar, and

then beat and raped the victim with the crowbar before setting

fire to a box of items.    Relative to the attempted arson, we

recited the following facts, which occurred after the defendant

repeatedly struck the victim's head with the crowbar until she

"was completely out":

     1
       The defendant's application for further appellate review,
and the Commonwealth's separate application for further
appellate review in connection with another portion of the case,
were denied. Commonwealth v. Coutu, 474 Mass. 1103 (2016).
                                                                     3


     "When the victim regained consciousness, she saw a pool of
     blood next to her and she smelled smoke. The smoke was
     coming from a box the defendant had stuck in a hole in the
     wall. She dragged the flaming box into the bathtub and
     retrieved a fire extinguisher from the kitchen. After
     reading the instructions, she was able to use it to
     extinguish the fire."

Id. at 689.

     At the time of the release of Coutu (No. 1), the Supreme

Judicial Court's most recent cases discussing attempt under the

general attempt statute, G. L. c. 274, § 6, required proof of

three elements:    (1) the intent to commit the substantive crime,

(2) an overt act in furtherance of commission of the substantive

crime, and (3) nonachievement of the substantive offense.

See Commonwealth v. Bell, 455 Mass. 408, 412

(2009); Commonwealth v. Marzilli, 457 Mass. 64, 66 (2010).

     In Commonwealth v. LaBrie, 473 Mass. at 764, the court held

that even though there was support in its prior cases for the

proposition that the crime of attempt had three elements, the

court was no longer going to follow that analysis.   As a result,

"nonachievement of the substantive crime" has been demoted from

its erstwhile status as an element of the crime of

attempt.   Ibid.   Instead, that language has been relegated as "a

further refinement of the definition of the overt act."     Ibid.,

quoting from Commonwealth v. Aldrich (No.1), 88 Mass. App. Ct.

113, 118 (2015).   As the court explained, the nonachievement

language reinforces the fact "that attempt is a crime separate
                                                                    4


and distinct from the substantive offense to which it is

connected, one that focuses on, and punishes, acts that threaten

the accomplishment of the substantive offense, not the

substantive offense itself."   Commonwealth v. LaBrie, supra.

With that said, the court nonetheless noted that

     "[t]he substantive crime is clearly both relevant and
     important, because what the crime of attempt aims to punish
     are acts that bear a proximate relation to that crime; put
     another way, the substantive crime helps to define and
     delimit what acts may have the requisite proximity. But
     the acts stand on their own, and whether a particular act
     qualifies as an overt act that, combined with proof of the
     requisite intent, constitutes a criminal attempt does not
     depend on whether the substantive crime has or has not been
     accomplished."

Commonwealth v. LaBrie, supra at 763. 2

     To be sure, the defendant here was not convicted under the

general attempt statute.   Rather, his attempted arson conviction

arose from his violation of G. L. c. 266, § 5A.    Under § 5A, an

attempt is separately defined as:

     "The placing or distributing of any flammable, explosive or
     combustible material or substance or any device in or
     against any building, structure or property mentioned in
     the foregoing sections in an arrangement or preparation
     with intent eventually to wilfully and maliciously set fire
     to or burn such building, structure or property, or to
     procure the setting fire to or burning of the same shall,
     for the purposes of this section, constitute an attempt to
     burn such building, structure or property."


     2
       The court reached this conclusion even though it approved
the judge's instruction that, in part, told the jury that
"[a]ttempted murder only exists if there's not an actual murder,
of course." Commonwealth v. LaBrie, supra at 765.
                                                                     5


     As we noted in Coutu (No. 1), supra at 701, this codified

definition of attempt for purposes of arson relaxed the stricter

common-law requirements set forth in Commonwealth v. Peaslee,

177 Mass. 267, 271-272 (1901), and Commonwealth v. Ali, 7 Mass.

App. Ct. 120, 123 (1979).   In consideration of that, and the

Supreme Judicial Court's removal of nonachievement of the

substance crime as an element of a general attempt, whether an

attempt is necessarily inchoate is no longer determinative of

the issue before us.   See Commonwealth v. LaBrie, supra.    Thus,

we must reevaluate our earlier conclusion that the evidence was

insufficient to support the conviction.   Here, even though, in

the light most favorable to the Commonwealth, the evidence

showed that the box of items was actually ablaze before the

victim extinguished it, and the jury could have concluded that

the defendant achieved the substantive crime of arson, 3 his


     3
       In Commonwealth v. LaBrie, supra at 764, the court
illustrated the consequence of a contrary rule by citing United
States v. York, 578 F.2d 1036, 1039 (5th Cir.), cert. denied,
439 U.S. 1005 (1978), where the United States Court of Appeals
for the Fifth Circuit held that "requiring the government to
prove failure as an element of attempt would lead to the
anomalous result that, if there were a reasonable doubt
concerning whether or not a crime had been completed, a jury
could find the defendant guilty neither of a completed offense
nor of an attempt." See Commonwealth v. Gosselin, 365 Mass.
116, 120 (1974) (stating, in dictum, that requiring proof beyond
reasonable doubt that attempt failed would mean that "if there
were a reasonable doubt whether the attempt succeeded, the
defendant could not be convicted either of the completed crime
or of the attempt. We have rejected such requirements").
                                                                   6


conviction of attempted arson must stand. 4   On the indictment

charging attempt to burn personal property, the judgment is

affirmed.

                                    Judgment affirmed.




     4
       The defendant also claims that the Commonwealth failed to
identify the property at issue that the defendant attempted to
burn. We disagree. The statute punishes, among other specified
property, the burning of "any personal property." G. L. c. 266,
§ 5. The indictment, which was provided to the jury during
deliberations, specified that the property at issue was a
"cardboard box and contents." The victim testified that the box
likely belonged to her, as she was planning to move at the time
of the attack and had cardboard boxes in her apartment. The box
was so weighed down with its contents that the victim had to
drag it to the bathroom. In the light most favorable to the
Commonwealth, this was sufficient to identify the items as
personal property. Finally, in a single sentence without
supporting authority, the defendant claims the judge failed to
instruct the jury that they had to find an item of property
enumerated in § 5 was the property that the defendant attempted
to burn. This does not suffice for purposes of appellate
argument pursuant to Mass.R.A.P. 16(a)(4), as amended, 367 Mass.
921 (1975), and we treat it as waived. See Commonwealth v.
Lawton, 82 Mass. App. Ct. 528, 541 n.13 (2012).
