COMMONWEALTH vs. JEROME CROMWELL.

BERRY, J. The defendant was convicted by a jury of receiving stolen property under G. L. c. 266, § 60. [Note 1] The facts presented in the jury trial were these. At 4:20 A.M. on November 8, 1998, while walking on a street in the Dorchester section of Boston, the defendant was stopped by two passing police officers who thought he had something hidden under his arm. The officers noticed that the defendant was sweating profusely, and that

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there were cuts with fresh blood on his right hand. When asked where he was going, the defendant said he was coming from home and going up the street. The officers conducted a patfrisk, which yielded a screwdriver tucked in one pocket of his jeans, a radar detector tucked in another pocket, a car radio stuffed inside the jeans, and a leather case containing twenty compact discs clutched in his hand. The radio had gouge marks, which appeared to the officers to be marks left when it was pried out of its holder. The defendant was arrested. As he was placed into the cruiser, without any inquiry by the police, he commented, "You got me, just take me in," followed by a second remark that he was "mad at myself." A check of cars parked on the street in the vicinity of the arrest did not show any sign of a break-in. Later, during booking, a nail was discovered in the defendant's pocket.

The appellate challenge is that no rational fact finder could find the defendant guilty beyond a reasonable doubt of receiving stolen goods because there was no evidence that the allegedly stolen articles belonged to a particular identified rightful owner, and the articles did not bear identifying marks through which ownership could be traced. [Note 2] Viewed from one perspective, this appellate claim appears to present a pure evidence-based challenge, contesting the sufficiency of the evidence underlying the conviction. However, the evidentiary challenge is presented with a twist and poses a law-based issue, not previously addressed. The issue of law is whether conviction under G. L. c. 266, § 60, requires proof that the allegedly stolen goods belong to some particular identified person or entity with ownership rights. On this issue, we hold that G. L. c. 266, § 60, does not require as an element that the Commonwealth establish an ownership connection to the allegedly stolen property by a particular person or by specific identifying characteristics. [Note 3] We

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further determine that, in this case, there was sufficient evidence to establish the crime of receiving stolen property, and accordingly, we affirm.

1. The elements of receiving of stolen property. We begin with the established elements. "In order to be guilty of the crime of receiving stolen goods, '(1) one must buy, receive or aid in the concealment of property which has been stolen or embezzled, (2) knowing it to have been stolen.' " Commonwealth v. Yourawski, 384 Mass. 386, 387 (1981), quoting from Commonwealth v. Donahue, 369 Mass. 943, 949, cert. denied, 429 U.S. 833 (1976). The property must be that which could be the subject of larceny at common law, or is of a type specified in G. L. c. 266, § 30(2). Commonwealth v. Yourawski, 384 Mass. at 387. The defendant seeks to add another to the afore defined elements, contending that, in order to prove that the property is stolen and the defendant's possession thereof unlawful, the Commonwealth perforce must prove some particular and identifiable ownership interest associated with the property, either by the owner identifying the property or by particular identifying markings on the property itself. In support of this proposition, the defendant compiles cases in which evidence was adduced linking the allegedly stolen goods to an owner, [Note 4] and argues that these cases demonstrate ownership linkage

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as an element. While the cases reflect evidence adduced concerning owners reporting loss of, and identification of, discrete items of stolen goods, none of the cited cases stands for the proposition that ownership by a particular identified person is an element of proof for the crime of receiving stolen property. The defendant does not point to, and research has not disclosed, any case holding as matter of law that a conviction for receiving stolen property requires the Commonwealth to prove that the received property belongs to an identified owner or has unique ownership identifying markings. [Note 5] We also note that ownership is not an element of proof in the Model Penal Code

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definition of the crime of receiving stolen property. See Model Penal Code and Commentaries § 223.6 (1980). [Note 6]

In reaching back for precedent to support this legal construct, the defendant cites Commonwealth v. Billings, 167 Mass. 283 (1897), as establishing an ownership linkage element for the crime of receiving stolen property. Billings was convicted of three counts of receiving stolen property. [Note 7] On appeal, the court found that there "was evidence that the defendant was receiving from Learned stolen property, believing it to have been stolen, which is all that the law requires to constitute the crime of which he was convicted." Id. at 285. This formulation in Billings of the elements of the crime of receiving stolen property does not include an element of ownership, and, indeed, is remarkably similar to the elements that presently define the basis for conviction under G. L. c. 266, § 60. See Donahue, supra at 949; Yourawski, supra at 387. Notwithstanding that similarity, the defendant reads Billings to incorporate an element of proof of ownership because, in that case, the court reversed on two counts where the Commonwealth had not proved ownership of the stolen articles. Analysis reveals, however, that the reversals were not based on an ownership element, but rather were attributable to the way in which the indictment had particularized named shop owners for identified stolen pieces. Hence, according to the court, "[i]t was necessary to

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prove the ownership of the property received as charged in the indictment" (emphasis added). [Note 8] Billings, supra at 286. So analyzed, Billings is not precedent for including ownership as a necessary element of proof of the crime of receiving stolen property.

Although not cited by the parties, we note that G. L. c. 277, § 25, provides that indictments for property crimes need not allege the name of the property owner if the property is described with sufficient certainty. This statute has been construed as applicable to indictments for larceny under G. L. c. 266, § 30. See Commonwealth v. Souza, 397 Mass. 236, 238 (1986). We see no reason why it would not be equally applicable to receiving stolen property crimes under G. L. c. 266, § 60. Moreover, that an owner need not be alleged in the indictment is in accord with ownership not being an element of proof necessary for conviction of the offense of receiving stolen property. [Note 9] For the foregoing reasons, we reject the defendant's appellate claim that his conviction should be reversed because the Commonwealth failed to prove ownership of the car radio, radar detector, and compact discs by a particular person or by particular identifying characteristics.

2. Sufficiency of the evidence. The defendant did not move for a required finding of not guilty under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). "However, findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice." Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). We therefore review the sufficiency of the evidence under the established standard of "whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury 'might

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properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.' " Commonwealth v. Clary, 388 Mass. 583, 588-589 (1983), quoting from Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), S.C., 423 Mass. 129 (1996).

The crime of receiving stolen goods may be proved by circumstantial evidence. Commonwealth v. Obshatkin, 2 Mass. App. Ct. 1, 2 (1974) ("the evidence [relating to two stolen bicycles], although circumstantial, was sufficient to permit the case to go to the jury"). In assessing such circumstantial evidence, if the defendant's possession of property exhibits "peculiarities" and "occur [s] in a context fraught with suspicion," a jury may draw inferences that the possession was not lawful, and that the defendant had received and was holding, and knew he was holding, stolen goods. Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 596, 602 (1988). Here, the jury could reasonably so conclude from the peculiarities and suspicious context of the circumstances surrounding the defendant's possession of the items, which included walking the streets in the predawn hours, having a car radio concealed within his trousers, stashing a radar detector in one pocket and a screwdriver in the other, and, when stopped and questioned by the police, sweating profusely. Added to these peculiarities were the gouge marks on the car radio consistent with the radio having been pried from its holder, a screwdriver that could etch such gouge marks, and fresh cuts on the defendant's hand that could be inferred to have been caused by the screwdriver. Finally, the defendant's spontaneous statement that "[y]ou got me, just take me in" was not nuanced and could have been considered by the jury as an incriminating admission. [Note 10] See Commonwealth v. Bushway, 7 Mass. App. Ct. 715, 719 (1979) ("statement [by defendant] that 'he would have made more

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[money] but you got me' furnished strong support for . . . a conclusion" that defendant was engaged in criminal activity).

Painted in detail, the picture presented to the jury was fraught with incriminating facets that reflected the defendant's receiving stolen car electronics. Given the totality of the evidence, [Note 11] and the reasonable inferences drawn therefrom, we are of the opinion that there was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant received stolen property in violation of G. L. c. 266, § 60.

Judgment affirmed.