COMMONWEALTH vs. ELTRA D. DEBERRY.

MARSHALL, C.J. In this appeal from a conviction of malicious destruction of property valued at over $250, we consider the proper method for determining "the value of the property so

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destroyed or injured," G. L. c. 266, § 127, proof of which is an essential element of this felony offense. [Note 1] The language has been variously construed by lower courts in the Commonwealth, but not by this court. The question is important because its answer determines the criminal penalties to which the defendant may be subjected. If "the value of the property so destroyed or injured" is less than $250, the defendant may be convicted of a misdemeanor only, which carries substantially lower penalties than a felony conviction under the statute. [Note 2] In this case a jury in the District Court convicted the defendant of the felony of malicious destruction of property on evidence that the defendant had punched a hole the size of a light switch plate in a kitchen wall of a house.

The defendant's conviction was affirmed on appeal. Commonwealth v. Deberry, 57 Mass. App. Ct. 93 (2003). The Appeals Court concluded that, to determine the "value of the property" damaged, the jury should consider the value of the house, of which the wall was "inextricably integrated." Id. at 97. We granted the defendant's application for further appellate review.

Where only a portion of property has been damaged, it is possible to consider three definitions for the "value of property": the fair market value of the whole property (here the house) (as the Commonwealth urges); the fair market value of so much of the property as is destroyed or injured (here the wall) (as the defendant urges); or the pecuniary loss (here measured by the reasonable cost of repair) (as most other States

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do). We conclude, consistent with our duty to construe ambiguous terms in light of the Legislature's probable intent, that where damage is caused to a portion of the property as a whole and may be replaced or repaired, the value of the property is to be measured by the pecuniary loss, in this case the reasonable cost of repair necessitated by the malicious conduct. Because the Commonwealth presented no evidence on this point, the defendant's conviction of the felony offense of malicious destruction of property must be reversed.

1. Background. On June 20, 2000, the defendant was tried in Brockton District Court on one count of assault and battery in violation of G. L. c. 265, § 13A, one count of malicious destruction of property over $250 in violation of G. L. c. 266, § 127 (felony), and two counts of malicious destruction of property under $250 in violation of G. L. c. 266, § 127 (misdemeanor). After a one-day jury trial, at which the Commonwealth presented the testimony of one witness [Note 3] and documentary evidence, [Note 4] the defendant was acquitted of the assault and battery charge and convicted of the three remaining charges of malicious destruction of property. The defendant appealed from each of those convictions. [Note 5]

Reviewing the record in its light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we recite the facts that a reasonable jury could have found. On August 4, 1999, the witness was at her mother's house with the defendant and their one year old daughter. While the defendant and the witness were sitting outside, the telephone rang. The witness, with the defendant following, walked through the kitchen and into the living room to answer the telephone, which had a caller identification display. The witness spoke for

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some minutes to the caller, a man whom the witness had met previously. During and after the conversation, the defendant asked her to identify the caller. The witness testified that she initially lied to the defendant regarding the caller's identity, but eventually told him that it was another man.

An argument ensued. As the exchange became heated, the defendant ripped the kitchen telephone from the wall and broke it. He then punched a hole in the wall. [Note 6] He picked up a cordless telephone, which was in the living room, and broke it by throwing it on the floor. He ripped a pager from the witness's shirt, threw it to the ground, and broke it.

The witness testified that the kitchen telephone was worth approximately twenty dollars, the living room telephone was worth approximately sixty dollars, and the pager was a gift. The Commonwealth offered no evidence concerning the value of the damaged kitchen wall or of the house itself, or of the cost to repair the damaged wall. The defendant moved unsuccessfully for required findings of not guilty based on insufficient evidence at the close of the Commonwealth's case and at the close of the evidence.

Concerning the damage to the wall, the judge instructed the jury:

"[T]he value of the property, not the value of the damage, but the value of the property, was [it] in excess of $250[?] . . . You're looking at the value of the wall, not the alleged damage, the hole in it, was the item damaged worth over $250[?] If you find the first three elements [of malicious destruction of property] are proven, then you go on to determine whether or not it was over $250 for that particular charge. . . . [T]he allegation that there was damage to a phone, damage to a pager, the allegation [as to those] is under $250, so you don't have to make a determination with regard to amount."

Neither the defendant nor the Commonwealth objected to the judge's instructions.

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2. Malicious destruction of property. The element of the offense of malicious destruction of property that distinguishes a misdemeanor from a felony is the "value of the property so destroyed or injured." G. L. c. 266, § 127. [Note 7] To convict a defendant of a felony, a jury must find beyond a reasonable doubt that the value of the property damaged exceeds $250. See Commonwealth v. Beale, 434 Mass. 1024, 1025 (2001) ("value in excess of $250 must be found by a jury beyond a reasonable doubt"). The statute does not define the term "the value of the property," which raises particular problems where, as here, the property is but partially damaged.

As we discuss more fully below, amendments to the statute in 1978 expanded personal property covered by the statute to encompass real property, i.e., "dwelling house" or "building." See St. 1978, c. 544 (1978 act). The question we must therefore resolve is whether, when the Legislature amended G. L. c. 266, § 127, it intended that every "injury" to a dwelling house or building, no matter how minimal (breaking a small pane of glass, scratching a wall) would support a felony conviction resulting in up to ten years' imprisonment or a fine of up to three times the value of the building, when the cost of repair or replacement might be substantially less than $250.

We interpret a statute "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language . . . to the end that the purpose of its framers may be effectuated." Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Accord Boston Police Patrolmen's Ass'n v. Boston, 435 Mass. 718, 719-720 (2002). Where the statutory language is not conclusive, we may "turn to extrinsic sources, including the legislative history and other statutes, for assistance in our interpretation." Chandler v. County Comm'rs of Nantucket County, 437 Mass. 430, 435 (2002), citing EMC Corp. v. Commissioner of Revenue, 433 Mass. 568,

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570-571 & nn.6-8 (2001) (other statutes), and Barclay v. DeVeau, 384 Mass. 676, 680 (1981) (legislative history). If it is a criminal statute we interpret, the rule of lenity requires that the defendant be given the benefit of the ambiguity. Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992).

Before turning to the 1978 act, we examine the legislative history of crimes against property in Massachusetts, paying particular attention to the evolution of the statutory offenses pertaining to buildings. Chapter 266 of the General Laws, "crimes against property," contains more than one hundred separate offenses. [Note 8] General Laws c. 266, § 127, is a catchall section concerning the malicious or wanton injury to property not otherwise specified in the statute. The offense codified in § 127 is one of long standing, appearing first in the Revised Statutes of 1836. [Note 9] R.S. (1836), c. 126, § 39. As initially enacted, the provision covered only personal property and made no distinction between felony and misdemeanor offenses based on the value of that property. Id. The latter distinction first appeared ten years later: a misdemeanor conviction obtained where the "value" of personal property destroyed did not "exceed the sum of fifteen dollars." [Note 10] St. 1846, c. 52, § 1.

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In 1862, the Legislature enacted a separate statute prohibiting the "injury" of a "dwelling-house or other building." [Note 11] St. 1862, c. 160. From 1836 until 1978, the felony and misdemeanor crimes of injury to personal property were codified at G. L. c. 266, § 127, while the misdemeanor crime of injury to buildings was codified at G. L. c. 266, § 104. There was no provision for the felony crime of injury to a building: a felony conviction was warranted only if a defendant violated one of the many separate offenses enumerated in G. L. c. 266. That changed in 1978, when the Legislature amended G. L. c. 266, § 127, to encompass real property, i.e., "dwelling house" and "buildings." [Note 12] St. 1978, c. 544.

The 1978 act was enacted in the wake of a lengthy report by the Legislative Research Council on the prevention and punishment of vandalism in the Commonwealth. See 1976 House Doc. No. 4951 (report). [Note 13] The report noted the escalating cost of

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vandalism in Massachusetts and nationwide. [Note 14] Id. at 8. The report also noted "dissatisfaction with the judicial disposition of cases involving vandalism" in Massachusetts. Id. at 11. It described various efforts to combat vandalism, id. at 9, and canvassed the Massachusetts statutory provisions relating to vandalism and other property damage, noting that G. L. c. 266, § 104, the broadest of the statutory provisions concerning "malicious mischief" to buildings, imposed only a relatively minimal penalty. Id. at 48. The report examined in detail the gradation in real property offenses between felonies and misdemeanors found in the Model Penal Code and in numerous State statutes of "criminal mischief." [Note 15] Id. at 34-47.

The 1978 act simply extended the scope of the existing statute to encompass real property. Nothing in the legislative history suggests that the Legislature intended that any damage (vandalism) to a building, however minuscule, be prosecuted as a felony. To the contrary, the fact that the Legislature folded "dwelling house[s]" and "building[s]" into the catchall provision of § 127 suggests the Legislature's intention that a grading approach be utilized for considering whether to charge a misdemeanor or a felony for damage to real property. This was, after all, the practice across the United States as described in the report of the Legislative Research Council. Id. at 34-47. Thus we are unable to conclude that the 1978 act intended to

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exclude damage to real property from such grading. [Note 16] Cf. State v. Breznick, 134 Vt. 261, 266 (1976) ("From the literal wording of the statute ['damage to property of any value not exceeding $250.00'] it is ambiguous whether the word 'value' refers to the property damaged or to the damage itself").

We must therefore construe statutory terms to effectuate the legislative purpose as we determine it. See Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The report, which appears to have triggered the 1978 act, strongly suggested that Massachusetts was out of step with the majority of other States, which had enacted some type of grading of penalties depending on the seriousness of the "vandalism" to real property that did not amount to total destruction of the property. See report at 34-47. However, nothing in the report suggests that minor property damage should be met with Draconian punishment. Nor is there any indication that the Legislature intended that the most minimal damage to real property, perhaps costing a few dollars to repair, would subject a defendant to a felony conviction with attendant severe punishment of up to ten years or a substantial fine. Cf. Commonwealth v. Walden, 3 Cush. 558, 559-560 (1849) (malicious destruction statute requires heightened level of malice lest "a person . . . be punished criminally, and with great severity," "however trifling the injury might be"). In addition, the Legislature clearly was aware, in 1978, that the total value of almost any "building" or "dwelling house" then exceeded $250. Had the Legislature meant "value" under the 1978 act to include the total value of any real property that suffered even minor damage, it would have said so explicitly, rather than adopting an amendment containing a misdemeanor

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provision that, as pertains to real property, would be virtually meaningless. [Note 17]

We thus reject the Commonwealth's contention that the value at issue is the value of the whole property. In this regard we find persuasive the reasoning of the District of Columbia Court of Appeals. That court also rejected an interpretation of its malicious destruction statute, a statute similar to ours, that would have interpreted the "value" of the property to mean the value of the entire property, damaged and undamaged parts alike. [Note 18] See Nichols v. United States, 343 A.2d 336, 341 (D.C. 1975), quoting D.C. Code § 22-403 (1973). There, the defendant was charged with a felony offense of destruction of property for creating a hole in the roof of a liquor store. The court noted that "the larger whole in this case is the liquor store" and "[w]e readily could take notice of the fact that the 'store' referred to . . . has a value exceeding $200," the threshold amount for a felony offense. Id. at 341-342. The court rejected that the statute mandated a felony conviction in any instance where the damaged property as a whole is valued at over $200. Id. at 342. The court reasoned, and we agree, that it could not be the legislative intent to "create the rule that, for example, causing even fifty cents' damage to part of an object having an overall value greater than [$250] would constitute a felony." Id. at 342.

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Here, the defendant argues that the property to be valued is the wall, and not the entire house. [Note 19] This argument, reducing the property injured to some smaller segment thereof, was also considered and rejected by the District of Columbia court. Id. at 342. "Neither, in our view, would it be logical to interpret the statute as requiring the cataloging in an indictment of each component part which is damaged or destroyed. In this case, for example, such an approach would necessitate placing a value on multiple items such as roofing paper, pieces of wood, etc." Id. Such a segmented approach would undermine the salutary goal of consistency in prosecutions and convictions, especially because in the case of a building, the part of the property to be valued could be described either expansively or narrowly. For example, one might argue that the partially damaged property in this case is the kitchen, and not just a wall of the kitchen. Cf. Commonwealth v. Cox, 7 Allen 577, 578 (1863) (rejecting that injury to panel of omnibus should be considered separately because "the omnibus is alleged to be injured by the breaking of the panel").

As the District of Columbia court noted, "[a] more sensible approach is wholly consistent with the statute." Nichols v. United States, supra at 342. We agree, and conclude that the correct standard in a case such as this is the pecuniary loss: "Where repairable damage or destruction is caused to a portion or portions of a greater whole, the value of the property damaged or destroyed is to be measured by the reasonable cost of

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the repairs necessitated by the malicious conduct." [Note 20], [Note 21] Id.

Our survey of other jurisdictions confirms our conclusion. Although other States employ a variety of statutory terms to distinguish felony and misdemeanor destruction of property offenses, no jurisdiction determines whether a criminal mischief or destruction of property offense is a misdemeanor or a felony on the basis of the value of the property determined as a whole. Most jurisdictions differentiate the offense level by a discernable monetary amount, such as "pecuniary loss" used in the Model Penal Code, [Note 22] Del. Code Ann. tit. 11, § 811 (Michie 2001); Ind. Code § 35-43-1-2 (Burns Supp. 2003); Ky. Rev.

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Stat. Ann. § 512.020 (Lexis 1999); Mont. Code Ann. § 45-6-101 (2003); Neb. Rev. Stat. Ann. § 28-519 (LexisNexis 2003); N.H. Rev. Stat. Ann. § 634:2 (West Supp. 2003); N.J. Stat. Ann. § 2C:17-3 (West Supp. 2003); N.D. Cent. Code § 12.1-21-05 (Michie 1997); 18 Pa. Cons. Stat. Ann. § 3304 (West 2000); Tex. Penal Code Ann. § 28.03 (West Supp. 2004); Utah Code Ann. § 76-6-106 (LexisNexis Supp. 2003), or other statutory phrases with essentially the same meaning, see, e.g., Ark. Code Ann. § 5-38-204 (Michie 1997) ("amount of actual damage"); Iowa Code Ann. § 716.4 (West 2003) ("cost of replacing, repairing, or restoring the property so damaged"); Md. Code Ann., Crim. Law § 6-301 (LexisNexis 2002) ("causes damage of at least $500"); Minn. Stat. Ann. § 609.595 (West Supp. 2004) (reduction in "the value of the property [as] measured by the cost of repair and replacement"); Mo. Ann. Stat. § 569.100 (West 1999) ("damages property to an extent exceeding seven hundred and fifty dollars"); Ohio Rev. Code Ann. § 2909.11 (West 1997) ("property value or an amount of physical harm"). Those few jurisdictions that, like Massachusetts, have statutory language referring to the "value" of the property in determining whether the offense is a misdemeanor or felony (Mississippi, Vermont, and the District of Columbia) also differentiate between felony and misdemeanor offenses on the basis of repair or replacement costs. Mississippi's statute, the most similar to ours, [Note 23] further defines value as "the cost of repair or replacement of the property damaged or destroyed." Miss. Code Ann. § 97-17-67 (5) (Supp. 2003). See Me. Rev. Stat. Ann. tit. 17A, § 805 (West Supp. 2003) (definition in aggravated criminal mischief statute that defendant is guilty if he "[d]amages or destroys property of another in an amount exceeding $2,000 in value" refers to "the cost of repair" of damaged property). Vermont and the District of Columbia, as discussed, supra, have reached the same conclusion,

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but through judicial interpretation of the statutory language. See Nichols v. United States, 343 A.2d 336 (D.C. 1975); State v. Breznick, 134 Vt. 261 (1976).

Applying the above statutory interpretation of "value" in this case, we reverse the felony conviction of malicious destruction of property, G. L. c. 266, § 127. [Note 24] The Commonwealth did not introduce any evidence as to the reasonable cost to repair the hole in the wall, and, without such evidence, the Commonwealth has failed to prove an essential element of the felony offense of malicious destruction of property. See Commonwealth v. Beale, 434 Mass. 1024, 1025 (2001). Because the element that distinguishes the felony offense of malicious destruction of property from its misdemeanor counterpart is "the value of the property," G. L. c. 266, § 127, and the Commonwealth has proved all other elements of the offense beyond a reasonable doubt, see note 7, supra, a finding of guilty of the lesser included offense of malicious destruction of property under $250 shall enter.

3. The defendant's prior convictions. Prior to trial, the judge denied the defendant's motion in limine to exclude the introduction at trial, for impeachment purposes, of the defendant's prior convictions of assault by means of a dangerous weapon and of unlawful possession of a firearm. [Note 25] On appeal the defendant argues that the judge abused her discretion by improperly denying

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his motion because the prior offenses were substantially similar to the assault and battery offense for which he was charged, but not convicted.

"Generally, in order for the prejudicial effect to outweigh the probative value of the prior conviction evidence, the 'prior conviction must be substantially similar to the charged offense.' " Commonwealth v. Paulding, 438 Mass. 1, 12 (2002), quoting Commonwealth v. Leftwich, 430 Mass. 865, 869 (2000). Whether to admit such evidence is appropriately an exercise of discretion by the trial judge. For the reasons stated by the Appeals Court, Commonwealth v. Deberry, 57 Mass. App. Ct. 93, 99 (2003), we conclude that, in this case, the trial judge did not abuse her discretion in denying the defendant's motion.

The defendant also argues that, by denying his motion to exclude his prior convictions, the judge denied him his constitutional right to testify in his own defense because those prior convictions could be used to impeach his testimony. As the Appeals Court correctly stated, "[t]he argument is unpersuasive and wrong. The defendant has a right to testify. He does not have a right to testify free of the effects of impeachment by prior conviction." Commonwealth v. Deberry, supra, citing G. L. c. 233, § 21.

4. Conclusion. The convictions of the two misdemeanor offenses of malicious destruction of property are affirmed. For the foregoing reasons, the judgment on the defendant's conviction of malicious destruction of property over $250 is reversed, the verdict set aside, and the case is remanded to the District Court, where a finding of guilty of the lesser included offense of malicious destruction of property under $250 is to enter. The defendant is to be sentenced pursuant to those provisions of G. L. c. 266, § 127, that pertain to the misdemeanor offense.

So ordered.