COMMONWEALTH vs. CARL B. LIEBENOW, JR. [Note 1]

BERRY, J. The defendant was convicted of larceny under $250 for the theft of steel pipes and metal plates from a construction site. G. L. c. 266, § 30. At a bench trial, the defendant claimed as an affirmative defense that he lacked the requisite specific intent to steal because he honestly believed that the metal property was abandoned. This defense was unsuccessful. The trial judge determined that the defendant's stated belief that the pieces of metal were abandoned property -- notwithstanding that these metal construction materials were being stored on private property posted with no trespassing signs -- even if considered as honest in the defendant's subjective mind, was not objectively reasonable based on the case evidence.

A majority of this court, as reflected by the expanded panel, affirms the conviction. We discern no error in the trial judge's determination of guilt. The record reflects that the judge understood the law of the affirmative defense of mistake of fact and abandonment in the context of a larceny charge, and correctly applied that law in finding the defendant guilty on the evidence presented.

The dissent discerns error in the judge's guilty finding only by postulating a new formulation of the affirmative defense of mistake and abandonment. That new formulation is that a defendant's subjectively held honest belief that property is abandoned need not be reasonable and may, indeed, be totally unreasonable. Neither that formulation, nor the dissent's criticism that the judge incorrectly rejected the abandonment defense in making his finding, supports a reversal of the larceny conviction in this case. [Note 2]

1. Background of the trial and guilty finding. The following is a brief summary of the trial evidence and entry of the guilty finding.

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The construction site from which the defendant took the pieces of metal was private property located in Pittsfield. The property was known as Amy Court. There was active, ongoing construction on a townhouse development, with large construction machines, a work trailer, the raising of a building, and the clearing of land. There were several "no trespassing . . . private property" signs posted throughout the site. The defendant drove his pickup truck onto Amy Court during midmorning. The defendant then took several lengths of steel pipe and metal plates and loaded them into the back of his pickup truck. An employee at the site inquired what the defendant was doing. The defendant replied that he was just picking up some junk steel. The defendant drove away from the Amy Court construction site. The police were notified. Shortly thereafter, a police officer stopped the defendant. The bed of the defendant's pickup truck still contained numerous pieces of pipe, plates, and other metal. When inquired of by the police officer where he had gotten the metal, the defendant first denied that any of the metal came from the Amy Court construction site.

The defendant later changed this story and admitted that the metal property was taken from the construction site. However, the defendant testified that he honestly believed the metal was abandoned. In finding the defendant guilty, the trial judge stated, "As far as I'm concerned, the presence of the no trespassing sign puts you on notice that the property was not for you to take. Your honest belief at that point would not be relevant. So I find you guilty, sir."

The dissent sees this statement as error of law. We think not. "When a case is tried without a jury, the legal framework in which facts are to be found is not generally stated with the precision and amplitude of instructions to a jury [and] it is presumed that the judge as trier of fact applies correct legal principles." Commonwealth v. Kerns, 449 Mass. 641 , 655 (2007), quoting from Commonwealth v. Milo M., 433 Mass. 149 , 152 (2001). The dissent far too finely parses and interprets the judge's remark in such a way that would compel a reversal that is entirely unwarranted by the trial evidence. As the trial transcript reveals, the judge referenced the no trespassing signs as "put [ting] [the defendant] on notice" that the scrap metal was not

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abandoned. Add to this that the defendant lied when first confronted by the police, denying that he had taken the metal pieces from within the Amy Court construction site. These two incriminating pieces of evidence, when added to the totality of the other evidence at trial, support the judge's rejection of the affirmative defense of mistake of fact with regard to property abandonment.

Contrary to what the dissent writes, the judge's few words in brief comment concerning the posted no trespassing signs -- which comment was tied to evidence that logically tended to demonstrate that the metal property behind the posted no trespassing signs was not abandoned and could not objectively be believed to be so -- does not give rise to reversible error. Indeed, because the evidence in the light most favorable to the Commonwealth supported the guilty finding on the existing law of larceny and the affirmative defense of mistake on property ownership or property abandonment, this case could be affirmed without further address. [Note 3] However, the dissent would go much further in address and seeks to revamp the existing black-letter law governing this affirmative defense. [Note 4] We turn now to this issue concerning the state of the existing law.

2. Mistake of fact with regard to abandonment. As recast under the dissent's construction, a defendant's mistaken belief regarding property ownership or abandonment would compel a trial judge to instruct that the jury must acquit (or a judge sitting as fact finder must acquit), even if a defendant's subjectively expressed honest belief that property is abandoned is, objectively,

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totally unreasonable. Such acquittals under the dissent's theory would be compelled so long as a defendant claims -- even without any reasonable basis to so believe -- that the property had no owner or was abandoned. No Massachusetts case supports this newly defined affirmative defense wrought by the dissent. Indeed, the dissent's recast is not only out of sync with existing case law but also contrary to the model jury instructions, discussed infra, which define the elements of, and affirmative defenses to, the crime of larceny.

Finally, and of import, the dissent's recast of the affirmative defense of mistake concerning abandonment of property will lead to instructing a jury (and defining the law to be applied by a judge as fact finder) that the jury (or judge) must enter a not guilty verdict (or finding) -- even if such an acquittal is contrary to the trial evidence, and even if the acquittal is virtually nonsensical because the defendant's belief that the subject property was abandoned is entirely irrational and unreasonable, if viewed objectively. We address each of the above-mentioned concerns in turn.

a. The case law on this affirmative defense to larceny. As previously observed, the dissent overlooks extant, well-established Massachusetts case law. Hence, we now turn to a number of Massachusetts cases stating that, where a defendant claims as an affirmative defense a mistake of fact concerning the ownership of property or abandonment, such mistaken belief must be both honestly held and reasonable under the circumstances.

In Commonwealth v. Anslono, 9 Mass. App. Ct. 867 (1980), the court made clear that, if an affirmative defense is raised premised on a defendant's mistaken belief concerning ownership interest in property subject to a motor vehicle larceny prosecution (which, of course, encompasses an affirmative defense structured on a lack of any ownership by abandonment), the defendant is entitled to an instruction directed to whether the defendant had both an honest and reasonable belief concerning the property ownership issue. In Anslono, we wrote as follows on the issue:

"On the evidence, the judge was required to instruct the jury clearly and correctly, in a fair and impartial manner,

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on the substantive elements of the crime charged, with particular attention to the crucial question of the existence of a larcenous intent. Commonwealth v. Porter, 10 Met. 263 , 283 (1846). Commonwealth v. Carson, 349 Mass. 430 , 435 (1965). Commonwealth v. Kelley, 359 Mass. 77 , 92 (1971). Commonwealth v. Corcione, 364 Mass. 611 , 618 (1974). . . .

"His instructions on the question of larcenous intent . . . omitted entirely an instruction that the defendant was entitled to an acquittal if he honestly and reasonably believed that he had title to, and the right to sell, the motor vehicle. Commonwealth v. Stebbins, 8 Gray 492 , 495 (1857). Commonwealth v. White, 5 Mass. App. Ct. 483 , 485-488 (1977)." (Emphasis added.)

Anslono, 9 Mass. App. Ct. at 867-868. Thus, the dual requirement of an honest and reasonable predicate for the affirmative defense of mistaken ownership or abandonment in a larceny prosecution is patent in Anslono. [Note 5] Cf. Commonwealth v. Titus, 116 Mass. 42 , 44-45 (1874) ("[I]f, at the time of first taking [lost goods] into his possession, [the defendant] has a felonious intent to appropriate them to his own use and to deprive the owner of them, and then knows or has the reasonable means of knowing or ascertaining . . . who the owner is, he may be found guilty of larceny").

Also imposing this dual requirement of subjective honesty and objective reasonableness is Commonwealth v. Vives, 447 Mass. 537 (2006). In a section entitled "Honest and reasonable claim instruction," which concerns this affirmative defense, the Supreme Judicial Court repeatedly echoes the dual requirements:

"We recently had the opportunity to outline the definition of an affirmative defense in a criminal case and, more

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importantly, the effects of such a label on the parties' respective burdens. Commonwealth v. Cabral, 443 Mass. 171 , 178-182 (2005). . . . See Model Penal Code and Commentaries § 223.1(3)(b) (1980) ('It is an affirmative defense to prosecution for theft that the actor . . . acted under an honest claim of right to the property or service involved . . .'). . . . [Here], the defendant's argument that he honestly and reasonably believed that he was collecting a debt was an affirmative defense.

"The label of affirmative defense does not relieve the Commonwealth of its burden of proof, however. Because the honest and reasonable claim defense addresses an element of the crime charged, that of the defendant's intent to steal, . . . the burden of proof cannot be shifted to the defendant . . . . The Commonwealth's burden to disprove the affirmative defense of honest and reasonable claim arises once the defendant has met his own 'burden of production.' . . . Thus, if any view of the evidence would support a factual finding that the defendant was acting as creditor to the victim's debtor, the defendant has met his burden of production and it is incumbent on the Commonwealth to disprove the defense." (Emphases added.)

Vives, 447 Mass. at 540-541. [Note 6] So it is, as Vives pinpoints, that this affirmative defense requires a duality of (subjective) honest belief and (objective) reasonableness concerning the ownership or abandonment of property -- all as tied to specific intent and to proof of the crime of larceny.

Commonwealth v. Larmey, 14 Mass. App. Ct. 281 , 283-285 (1982), follows the same black-letter law pattern of requiring this legal duality for the larceny affirmative defense. In that case, the court held that the evidence supported a defense jury instruction

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concerning both an "honest and reasonable belief" (emphasis added). Id. at 283, 285. Indeed, in Larmey, Justice Smith noted that on the trial record in that case, the larceny instruction requested by the defense was not "directly on point" in that it failed to include both the honest and reasonable belief requirements.

"As framed by the defendant, the requested instruction was not directly on point as it did not assume an honest and reasonable belief on behalf of the defendant,[ [Note 7]] but it was 'close enough' (see Commonwealth v. White, 5 Mass. App. Ct. [483,] 488 [(1977)]) to require the judge to give the substance of an instruction that the defendant should be acquitted on so much of the indictments as charged him with robbery and stealing (larceny) if the jury should find that the defendant honestly and reasonably believed that the money he took from the victims had been stolen by them from the two women and that he intended to return it to them. There was sufficient evidence to warrant the submission of the defendant's theory to the jury, especially in view of the testimony of one of the victims in regard to the remarks of the defendant at the time of the incident." (Footnotes omitted.)

Id. at 285.

The case of Commonwealth v. White, 5 Mass. App. Ct. at 486-488, is in accord with Anslono, Vives, and Larmey. So, it is noted in Larmey that "[t]he requested instruction in [White] suffered from the same defect" as was present in Larmey, in that the instructions did not explicitly state the requirement of an honest and reasonable belief on the part of the defendant. Larmey, 14 Mass. App. Ct. at 285 n.6. Consistent with what the Larmey case states, in White the court held that "the defendant was entitled to an instruction to the effect that he should be acquitted on so much of the present indictment as charges him with robbery and stealing (larceny) if the jury should find that the defendant honestly and reasonably believed that the money he

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took from [the victim] represented a debt actually due from [the victim] to the defendant." White, 5 Mass. App. Ct. at 488.

b. The existing larceny model jury instructions. Contrary to the dissent's recast, Instruction 8.520 of the Criminal Model Jury Instructions for Use in the District Court (2009) (Model Jury Instruction 8.520) correctly indicates that a defendant's mistaken belief that property is abandoned is a valid affirmative defense to a charge of larceny, only if the defendant's mistaken belief was both honestly held, from a subjective view, and objectively reasonable. Model Jury Instruction 8.520 tracks the above-discussed, long-standing case law in this State, which requires both an honest belief and a reasonable basis for that belief as predicates for this affirmative defense to larceny.

Model Jury Instruction 8.520, which defines the elements of "Larceny by Stealing" and which, as material to this case, defines in Supplemental Instruction 7 the affirmative defense of mistake concerning property ownership (see note 8, infra), follows the precedential path of Anslono, Vives, Larmey, and White to the end of requiring not only an honestly held, but also a reasonable, mistaken belief involving ownership (or abandonment) of the subject property. See Commonwealth v. Gelpi, 416 Mass. 729 , 731 (1994) ("The defendant argues that, based on the evidence tending to prove that he had no intent to steal because he had an honest and reasonable belief that the property was his, the jury should have been so instructed. . . . The defendant was entitled to have the jury consider this evidence").

What the dissent would do is split asunder the honestly held and reasonable belief elements in the case law and in the larceny model jury instruction. To do so would mean that a defendant's honest subjective belief no longer has any mooring to objective reasonableness. To measure how untenable the dissent's construction actually is, one might consider how a jury instruction would read in light of the new defense crafted by the dissent, as opposed to the present, and correct, instruction contained in Model Jury Instruction 8.520.

Under the current Model Jury Instruction 8.520, a proper instruction on mistake of fact regarding ownership and abandonment of property would read as follows:

"If the defendant took another person's property in an

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honest and reasonable belief that [the defendant] had a legal right to it [including by abandonment] then you must find the defendant not guilty, even if that belief was in fact mistaken, because [the defendant] lacked the intent to steal." [Note 8]

In contrast to this established approach, the dissent's recast would, in effect, yield an instruction (and require a judge to apply the law) in something like the following mode:

"If the defendant took another person's property in an honest but mistaken belief that the property was abandoned -- even if that belief was objectively unreasonable -- then you the jury (or, you the fact-finding judge) must find the defendant not guilty, because the defendant lacked the intent to steal." [Note 9]

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As is clear from the plain text of the latter theoretical jury instruction, the construction urged by the dissent has the prospect of yielding absurd verdicts of acquittal.

3. Jury trial waiver. The defendant elected a jury-waived trial, prior to which the trial judge conducted an oral colloquy in open court. The defendant now claims, for the first time on appeal, that this colloquy was inadequate to assess whether his jury waiver was knowing and voluntary. "Because he failed to make a timely objection, we review for a substantial risk of a miscarriage of justice." Commonwealth v. Pimentel, 73 Mass. App. Ct. 777 , 787 (2009). We see no such risk.

It has long been held that there is no " 'rigid pattern' of factual determinations which a judge must make before concluding a defendant's waiver of the right to trial by jury was voluntary and intelligent." Commonwealth v. Schofield, 391 Mass. 772 , 775 (1984), quoting from Ciummei v. Commonwealth, 378 Mass. 504 , 509-510 (1979). Although this court does not have before it a transcript of the contested colloquy, the defendant concedes in his brief that the judge explained the defendant's right to a jury trial; thoroughly addressed the difference between a jury trial and bench trial; acknowledged the defendant's signed jury waiver form; and confirmed that defense counsel discussed the significance of the jury waiver with the defendant.

We further note that the printed jury waiver form, which is present in the record appendix, clearly states that the defendant had been informed of the following: (1) a jury consists of members of the community; (2) the defendant may participate in the jury's selection; (3) the jury's verdict must be unanimous;

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(4) the respective roles of the judge and jury in a jury trial; and (5) how the role of the judge changes in a jury-waived trial. Again, this jury waiver form was signed by the defendant. It was likewise signed by the trial judge and defense counsel. Given all of the foregoing indications, we are satisfied that the defendant was adequately apprised of the significance of his jury waiver.

In any event, " '[t]he defendant, being competent, must simply have indicated a comprehension of the nature of the choice' between a bench and jury trial. [Ciummei, supra at 510.] Such comprehension of the choice may be based on information provided to the defendant by the judge, the defendant's counsel, the defendant's personal knowledge, or some other source." Schofield, 391 Mass. at 776. Here, the judge's colloquy, combined with the signed waiver form, provides ample assurance that the defendant's waiver was voluntary and intelligent.

Judgment affirmed.

MILKEY, J. (dissenting in part, with whom Sikora, J., joins) . The defendant testified that he honestly believed that the items of scrap metal he took had been abandoned. On the law, he maintained that such a belief was sufficient to negate the specific intent necessary to prove larceny, regardless of whether his belief was objectively reasonable. The Commonwealth countered that even if the defendant honestly believed the property had been abandoned, that belief also had to be reasonable. The principal question raised by this appeal is which view of the law is correct. I agree with the defendant that an honestly held belief that property had been abandoned would be sufficient to negate the specific intent that is an essential element of the crime of larceny. Because the explanation that the judge offered for his guilty finding appears to rest on a contrary view of the law, the conviction should be vacated. I therefore respectfully dissent. [Note Dissent-1]

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Background. Although this appeal ultimately turns on a pure question of law, the trial evidence lends useful context to the parties' respective legal positions. I therefore begin by briefly recounting the evidence. [Note Dissent-2]

The defendant makes his living by collecting and selling scrap metal. Thus, he regularly looks for abandoned metal items, e.g., by combing through what people leave by the curb on trash day. The defendant acknowledged that when he searches for "stuff being dumped" -- which he claimed is "so common in Pittsfield" -- he does not look for signs indicating private property.

The property at issue in this appeal consists of various metal items that the defendant took from land off of Amy Court in Pittsfield. Amy Court is a cul-de-sac that recently had been built to provide access to a thirteen-building, twenty-six-unit townhouse development. At the time of the incident, only one of the buildings had been constructed. The evidence at trial paints a picture of a typical residential construction site: a mixture of cleared land and woods, a "job trailer," dirt piles, heavy equipment, and the like. Amy Court had not yet been accepted by the city, and therefore was a private way. Several no trespassing signs had been placed on trees at the site, including one near the

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specific area in question. At the same time, the developer had also placed a sign at the site that advertised the development, and "the public was allowed to come in and see these sites and make a bid on them or check them out or anything else like that." It is uncontested that the developer had "had a lot of trouble with people dumping garbage and so forth" at the site.

As the defendant admits, on the morning of July 27, 2010, he drove his truck down Amy Court seeking scrap metal. He does not contest that there were no trespassing signs posted in the area, but he testified that he did not see them. Using a path off of Amy Court, the defendant accessed an area lying between the woods and one of the dirt piles at the site. According to his testimony, he thought that this area was owned by the city. There he found various metal items, including what the developer's employee described as "miscellaneous leftover pipes from doing the sewer lines and water lines." The defendant testified that he was aware that others had been using the site as a dumping ground and that he believed that the items he took had been abandoned. He placed the items into his truck so that he could sell them as scrap metal.

Kevin Lufkin, an employee of the developer, spotted the defendant's truck when it entered the site. His initial concern was that the defendant might have come to dump refuse there. Lufkin confronted the defendant as he was leaving. According to Lufkin, the defendant told him that he was "just picking up some junk steel" and drove away. The defendant testified to a somewhat more extended version of the conversation. According to him, after he informed Lufkin what he was doing there, Lufkin told him, "Okay, I don't have no problem with that. Just don't dump . . . ."

After Lufkin checked with his boss to make sure she had not given the defendant permission, he reported the incident (along with the defendant's license plate number) to police. The police located the defendant as he was in the process of selling a truckload of scrap metal. The testifying officer described the load as "all kinds of junk." The defendant denied that any of the material was stolen, admitted to taking some of the material from the development site, [Note Dissent-3] and stated his belief that that material had

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been abandoned. The defendant then drove the truck back to the site with the police, and had further discussions with Lufkin there. Although the defendant continued to protest that he had not done anything wrong, he returned the material. The developer nevertheless pressed charges and a criminal complaint issued. Sitting jury-waived, the trial judge found the defendant guilty, and, as discussed infra, he explained his reasoning in brief detail.

Discussion. I begin by examining the explanation that the trial judge himself offered for his guilty finding. [Note Dissent-4] That explanation followed closely on the heels of the closing arguments in which the parties debated whether the defendant's professed belief had to be objectively reasonable (in addition to being honestly held). In finding the defendant guilty, the trial judge indicated that he was relying on the presence of a no trespassing sign as having put the defendant "on notice" that the property was not his for the taking. He further stated that the defendant's "honest belief at that point would not be relevant." By these statements, the judge expressly acknowledged the possibility that the defendant honestly believed that the property had been abandoned, while finding no need to decide that factual question (it being, in the judge's view, irrelevant in light of the no trespassing sign). Accordingly, when his explanation is viewed in context, it is plain that the judge accepted the Commonwealth's view that an honest belief in the right to take property has to be objectively reasonable in order to justify an acquittal, and that he concluded that a reasonable person would have known that the property had not been abandoned based on the posting of a no trespassing sign in the area. [Note Dissent-5] The judge's guilty finding is thus

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bound up in the view of the law urged by the Commonwealth. [Note Dissent-6] For the reasons that follow, I believe that view is incorrect.

"A fundamental tenet of criminal law is that culpability requires a showing that the prohibited conduct (actus reus) was committed with the concomitant mental state (mens rea) prescribed for the offense." Commonwealth v. Lopez, 433 Mass. 722 , 725 (2001), citing Morissette v. United States, 342 U.S. 246, 250 (1952). "The mistake of fact 'defense' is available where the mistake negates the existence of a mental state essential to a material element of the offense." Commonwealth v. Lopez, supra. Application of this principle, in theory, is straightforward: "One merely identifies the mental state or states required for the crime, and then inquires whether that mental state can exist in light of the defendant's ignorance or mistake of fact . . . ." LaFave, Substantive Criminal Law § 5.6(b), at 397 (2d ed. 2003).

"Larceny is the taking without right of the personal property of another with the specific intent to deprive the other of the property permanently" (emphasis added). Commonwealth v. Murray, 401 Mass. 771 , 772 (1988). The "mental state . . . required for the crime" of larceny is thus a specific intent to steal; and to sustain a conviction, the Commonwealth must prove that the defendant "consciously intended certain consequences, in this case [permanent deprivation of the property from its rightful owner], to result from his actions." Commonwealth v. Gunter, 427 Mass. 259 , 269 (1998). [Note Dissent-7]

The case law has long recognized that a defendant cannot be guilty of larceny if she "took the [property] under an honest

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belief that she had a legal right to it." Commonwealth v. Stebbins, 8 Gray 492 , 495 (1857). See Commonwealth v. Hurd, 123 Mass. 438 , 439 (1877) (defendant would not be guilty if he "honestly believed he had the right to take and sell the property"). In short, it is axiomatic that one cannot "consciously intend" to steal property that one honestly believes he or she has the legal right to take.

An individual who appropriates abandoned property has not committed larceny, because abandoned property by definition has no owner. See Griffith v. New England Tel. & Tel. Co., 414 Mass. 824 , 828 (1993). A belief that property is abandoned is thus a belief in a legal right to take that property. See Torcia, Wharton's Criminal Law § 78, at 560-561 (15th ed. 1993) ("[A] defendant is not guilty of larceny for taking the property of another if he mistakenly believed that the property was his own or was abandoned" [footnote omitted]). See also Morissette v. United States, supra at 276. Although the Commonwealth need not prove the precise identity of the rightful owner, a larceny conviction thus requires "a showing that a possessory or other property interest in the thing stolen is in someone other than the thief and proof that the thief knew that he had no right to the property taken." Commonwealth v. Souza, 397 Mass. 236 , 238 (1986), quoting from Commonwealth v. Kiernan, 348 Mass. 29 , 50 (1964), cert. denied sub nom. Gordon v. Massachusetts, 380 U.S. 913 (1965). It follows from these long-established principles that were a fact finder to conclude that a defendant honestly believed that the property he took had been abandoned, that fact finder could not simultaneously conclude that the defendant specifically intended to steal the property. The test is one of subjective intention, not objective reasonableness. [Note Dissent-8]

Nevertheless, as the majority accurately observes, the Commonwealth's

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position that a defendant's belief must be objectively reasonable (in addition to being honestly held) finds some support in the case law. Specifically, there are cases that speak in terms of a defendant's "honest and reasonable belief." See, e.g., Commonwealth v. White, 5 Mass. App. Ct. 483 , 486-488 (1977). Commonwealth v. White appears to be the first Massachusetts appellate decision that referenced the "honest and reasonable" formulation in the context of a defense to larceny. That case, however, did not present the question whether an honest but objectively unreasonable belief that one is entitled to take property is a defense to larceny. [Note Dissent-9] Several cases subsequent to Commonwealth v. White borrow its use of the "honest and reasonable" phrasing. See Commonwealth v. Gelpi, 416 Mass. 729 , 730-731 (1994); Commonwealth v. Vives, 447 Mass. 537 , 540-542 (2006); Commonwealth v. Anslono, 9 Mass. App. Ct. 867 , 867-868 (1980); Commonwealth v. Larmey, 14 Mass. App. Ct. 281 , 283-285 (1982); Commonwealth v. Newhook, 34 Mass. App. Ct. 960 (1993). [Note Dissent-10] However, in none of these cases did the defendant appear to have argued that reversal was warranted because the fact finder could have found that his belief, while perhaps objectively unreasonable, was nonetheless honestly

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held. [Note Dissent-11] Thus, neither we nor the Supreme Judicial Court have had occasion previously to consider the specific question currently before us. The majority has not identified any Massachusetts case that squarely holds that a belief in the right to take property must be reasonable to negate the intent to steal.

The "honest and reasonable" formulation adopted in Commonwealth v. White appears to derive from cases that involve defenses to general intent crimes. A defendant charged with such a crime may under some circumstances argue that, although the Commonwealth has proved all essential elements of the crime, he should not be convicted because he believed, albeit mistakenly, that facts existed which would have excused or justified his conduct. See, e.g., Commonwealth v. Power, 7 Met. 596 , 602 (1844); Commonwealth v. Presby, 14 Gray 65 , 68-69 (1859). In this context, a defense of this nature "requires that the accused act in good faith and with reasonableness." Commonwealth v. Sherry, 386 Mass. 682 , 697 (1982). For example, the law does not excuse or justify criminal conduct based on an unreasonable belief in the need for force in defense of oneself or another. See, e.g., Commonwealth v. Haddock, 46 Mass. App. Ct. 246 , 248-249 (1999).

However, with respect to specific intent crimes such as larceny, the context is markedly different. The question for the fact finder is not whether the defendant has behaved reasonably but instead whether he actually possessed the requisite mental state. [Note Dissent-12] As noted, by definition, one cannot consciously intend to steal

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property that he honestly believed he had a legal right to take. Allowing a larceny conviction even where a defendant honestly believed that the property had been abandoned would be tantamount to substituting mere negligence for specific intent. With regard to the crime of receiving stolen property, the Supreme Judicial Court has recognized the inappropriateness of allowing negligence to stand in for a higher mens rea. Commonwealth v. Dellamano, 393 Mass. 132 , 138 (1984), quoting from Commonwealth v. Boris, 317 Mass. 309 , 315 (1944) (holding that because guilty knowledge is an element of crime of receiving stolen property, that crime "is not proved by negligence nor by failure to exercise as much intelligence as the ordinarily prudent man"). There is no reason why this same principle should not be applied to the specific intent crime of larceny.

We have previously explored this difference between specific and general intent crimes in the context of a mistake of fact defense that a defendant sought to raise in a rape case. As we explained in Commonwealth v. Simcock, 31 Mass. App. Ct. 184 , 189 (1991), because rape is a general intent crime in Massachusetts, "[a] requirement for an instruction based upon one's actual mistake as to consent without regard to its reasonableness would be difficult to justify." [Note Dissent-13] At the same time, however, we noted that were Massachusetts a jurisdiction where a rape conviction required proof of specific intent, an "honest belief (whether reasonable or not)" would suffice to negate that intent and mandate an acquittal. Ibid., citing Regina v. Morgan, 1976 App. Cas. 182, 214 (English law). The same should follow in a prosecution for larceny, which does require proof of specific intent.

Although Massachusetts courts have not squarely addressed the question before us, courts in many other jurisdictions have

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done so. There are at least fourteen jurisdictions whose courts have concluded that an honest belief in the right to take property, even if unreasonable, is inconsistent with an intent to steal. [Note Dissent-14] For example, in a case very similar to the one at bar, a California appellate court reversed a defendant's conviction of stealing materials from a construction site because the trial judge erroneously instructed the jury that even if they concluded that the defendant honestly believed the materials were abandoned, they should still convict unless such a belief was reasonable. See People v. Navarro, 99 Cal. App. 3d Supp. 1, 11 (App. Dept. Super. Ct. 1979) (if the jury "concluded that defendant in good faith believed that he had the right to take the beams, even though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established"). In many other jurisdictions, courts have simply noted that an "honest" or "good faith" belief in the right to take property is incompatible with an intent to steal, without discussing the

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issue of reasonableness. [Note Dissent-15] Neither the Commonwealth nor the majority has identified any case holding that a defendant may be found to possess the specific intent to steal property that he honestly believed he had the legal right to take. [Note Dissent-16] We are now the first appellate court anywhere to reach that conclusion.

The case law is consistent with the major commentators on the criminal law. As one leading treatise states, "[t]here is no such thing in the common law as larceny by negligence. One does not commit this crime by carrying away the chattel of another in the mistaken belief that it is his own, no matter how great may have been the fault leading to this belief, if the belief itself is genuine." Dripps, Boyce, & Perkins, Criminal Law & Procedure 868 (12th ed. 2013). Accord American Law Institute, Model Penal Code and Commentaries § 2.04 (1985); id. at § 223.1(3) (1980); LaFave, Substantive Criminal Law § 5.6(b) (2d ed. 2003); Robinson, Criminal Law Defenses § 62(b) (1984); Torcia, Wharton's Criminal Law § 78 (15th ed. 1993). See also Nolan & Sartorio, Criminal Law § 686, at 722 (3d ed. 2001) ("If a person honestly but mistakenly believes that the property which he is taking from the victim by force or fear is his own, this element [intent to steal] is not present, and he cannot be

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found guilty of robbery"). See generally 50 Am. Jur. 2d Larceny § 42 (2006).

In sum, in my view, the nature of larceny as a specific intent crime and the overwhelming weight of authority support the defendant's view of the law. I therefore believe that where a defendant puts at issue his belief that the property he took had been abandoned, see note 12, supra, the Commonwealth must prove that the defendant "knew that he had no right to the property taken," Commonwealth v. Souza, 397 Mass. at 238, quoting from Commonwealth v. Kiernan, 348 Mass. at 50, not merely that a reasonable person in the defendant's position would have known. To the extent there is contrary dicta in Commonwealth v. White, 5 Mass. App. Ct. at 486-488, and subsequent cases, I believe such statements are erroneous and should be corrected.

None of this discussion is to suggest that the objective unreasonableness of a defendant's professed belief therefore would be beside the point. Under a proper view of the law, a fact finder would remain free to consider the reasonableness of a defendant's claims, and indicia of unreasonableness might well provide convincing evidence that a defendant's professed belief was not in fact honestly held. See People v. Navarro, 99 Cal. App. 3d Supp. at 11 ("[I]f the jury thought the defendant's belief to be unreasonable, [they] might infer that he did not in good faith hold such belief"). [Note Dissent-17] Objective reasonableness and unreasonableness therefore would continue to play an important evidentiary role, and in a jury trial, the Commonwealth would be entitled to an instruction that the jury may weigh the objective reasonableness of a defendant's professed belief in considering whether it was

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genuinely held. However, if a fact finder did conclude that the defendant's belief, though objectively unreasonable, was honestly held, then -- in my view -- he would be entitled to an acquittal.

As noted, the judge in this case indicated that he was resting the guilty finding on his view that any belief by the defendant that the property had been abandoned would not have been reasonable in the circumstances. As a result, the defendant was convicted without any determination by the fact finder that he possessed the specific intent to steal. I therefore would vacate the judgment and set aside the guilty finding. [Note Dissent-18]