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SJC-11593
COMMONWEALTH vs. CARL B. LIEBENOW, JR.
Berkshire. September 2, 2014. - November 25, 2014.
Present: Gants, C.J., Cordy, Botsford, Duffly, & Lenk, JJ.
Larceny. Intent. Mistake. Practice, Criminal, Affirmative
defense.
Complaint received and sworn to in the Pittsfield Division
of the District Court Department on August 12, 2010.
The case was heard by Fredric D. Rutberg, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Elizabeth Caddick for the defendant.
John Bossé, Assistant District Attorney, for the
Commonwealth.
DUFFLY, J. The defendant, who was in the business of
collecting and selling scrap metal, was charged with larceny
under $250, G. L. c. 266, § 30 (1), in connection with his
removal of two lengths of steel pipe from a construction site
located on private property in Pittsfield. He was convicted of
2
that charge following a jury-waived trial in the District Court.
The conviction was affirmed by the Appeals Court in a divided
opinion, see Commonwealth v. Liebenow, 84 Mass. App. Ct. 387, 398
(2013), and we granted the defendant's petition for further
appellate review.
The defendant claimed as an affirmative defense at trial
that he lacked the requisite specific intent to steal because he
honestly, albeit mistakenly, believed that the property he
removed from the site was abandoned. The judge, however,
erroneously viewed the affirmative defense as requiring proof
that the defendant's belief was objectively reasonable. This
misperception appears to have arisen from the conflation of two
distinct concepts that have appeared over time in our
jurisprudence: the concept of good faith belief, which is
subjective, and the concept of reasonable belief, which is
objective.1 We take this opportunity to resolve the resulting
confusion. As the dissent in the Appeals Court correctly stated:
1
In Commonwealth v. Liebenow, 84 Mass. App. Ct. 387, 391-
394 (2013), the Appeals Court relied on language in Commonwealth
v. White, 5 Mass. App. Ct. 483, 488 (1977), and Commonwealth v.
Anslono, 9 Mass. App. Ct. 867, 867–868 (1980), in support of the
proposition that, as to the issue of belief, a defendant can be
acquitted of larceny only if he honestly and reasonably believed
that the money he took was his own. A number of other appellate
decisions have cited with approval the reasonable belief language
in Commonwealth v. White, supra, and Commonwealth v. Anslono,
supra, in discussing the defense of mistaken belief in connection
with the specific intent crimes of larceny and robbery. See,
3
"[W]ith respect to specific intent crimes such as
larceny, . . . [t]he question for the fact finder is not
whether the defendant has behaved reasonably but instead
whether he actually possessed the requisite mental state.
". . .
"[W]here a defendant puts at issue his belief that the
property he took had been abandoned, . . . the Commonwealth
must prove that the defendant 'knew that he had no right to
the property taken,' . . . not merely that a reasonable
person in the defendant's position would have known"
(citation omitted).
Commonwealth v. Liebenow, supra at 405, 409 (Milkey, J.,
dissenting).
Here, the defendant adequately raised the defense of honest
belief that the items he took were abandoned, and it was the
Commonwealth's burden to prove beyond a reasonable doubt that the
defendant's subjective belief was not honestly held but, instead,
was a pretense or sham. Therefore, the conviction must be
vacated and the matter remanded for a new trial.
1. Background. We summarize the evidence that the judge,
as fact finder, could have found to support the charge of
larceny. We then summarize the evidence introduced by the
defendant, in the light most favorable to him, that a fact finder
e.g., Commonwealth v. Vives, 447 Mass. 537, 540–541 (2006);
Commonwealth v. Gelpi, 416 Mass. 729, 731 (1994); Commonwealth v.
Larmey, 14 Mass. App. Ct. 281, 283–285 (1982). See also
Commonwealth v. Garrity, 43 Mass. App. Ct. 349, 358 n.7 (1997),
cert. denied, 524 U.S. 954 (1998) (fiduciary embezzlement).
4
could have found to conclude that the defendant honestly believed
that the property was abandoned.
a. Commonwealth's evidence. On the morning of July 27,
2010, the defendant was driving around Pittsfield in his sport
utility vehicle (SUV), in search of junk metal that he could
sell. He drove onto Amy Court, a privately owned cul-de-sac,
which was the site of a proposed twenty-six-unit condominium
complex then in the process of being constructed. Several signs
stating "no trespassing" and "private property" had been posted,
construction had been completed on only one unit, and the
construction site contained company trucks, construction
equipment, and a "job" trailer. Construction company workers had
stacked leftover lengths of steel pipe and steel plates, intended
for use on other projects, in an area at the bottom of the cul-
de-sac where there was no construction. The items had been
placed behind a pile of top soil to keep them from view, so that
the area would appear attractive to prospective purchasers of the
lots, and there were no trash receptacles or discarded materials
in sight.
Kenneth Lufkin, an employee of the developer, observed the
defendant drive down to the end of the cul-de-sac; because the
tailgate of the defendant's SUV had been removed, Lufkin was able
to see that the back of the SUV was empty. The defendant drove
5
behind the pile of top soil and out of Lufkin's view, but Lufkin
could hear what sounded like steel banging.2 Lufkin stopped the
defendant as he was driving from the cul-de-sac toward the public
street. When Lufkin asked the defendant what he was doing, the
defendant said that he was just picking up some junk steel, and
drove away. Lufkin turned around to see what was in the back of
the SUV and saw several steel plates and lengths of steel pipe.
He wrote down the defendant’s license plate number, then
contacted his employer and the police.
Officer James Parise of the Pittsfield police department was
dispatched to Amy Court, where he spoke with Lufkin and
determined that there had been a larceny of some property from
that location. The defendant's vehicle subsequently was located
at a junkyard that purchased scrap metal. Parise went to the
junkyard and spoke with the defendant, who admitted that he had
taken the items he had in his vehicle, but said that they had not
come from Amy Court. The defendant agreed to accompany Parise to
Amy Court; Lufkin and the project developer, Amy Kroboth, met
them at the construction site. Lufkin identified the material in
the back of the defendant's vehicle as items which had been taken
2
Kenneth Lufkin testified that, in the past, construction
workers on the site had encountered people dumping trash on the
vacant lots and, as a result, several signs stating "no
trespassing" had been placed on trees at the end of the cul-de-
sac in order to prevent people from coming onto the property and
discarding trash.
6
from the Amy Court property, and the defendant returned the
items. Kroboth thereafter requested that the defendant be
charged with larceny.
At the close of the Commonwealth's evidence, the defendant
moved for a directed verdict; his motion was denied.
b. Evidence viewed favorably to defendant. The defendant
testified that he believed the construction debris and other
items he had collected had been abandoned and did not belong to
anyone. The defendant knew that people dumped trash at the end
of Amy Court. During the mid-morning hours of July 27, the
defendant drove his vehicle to the end of the Amy Court cul-de-
sac in search of discarded metal items that had been left or
dumped on a dirt trail leading into the woods which began at the
end of the paved cul-de-sac. This was one of several places to
which he drove that morning in search of junk metal.3 The
defendant was unaware of the no trespassing signs, and did not
know that Amy Court was then a private road that, according to
Kroboth, had not yet "been accepted by the city" as a public
street. The defendant made no effort to conceal what he was
3
Officer James Parise of the Pittsfield police department
testified that, at the time he encountered the defendant at the
junk yard, "[t]here was all kinds of junk in the back of [the
defendant's] vehicle; not only stuff that was reported missing
from the property, but just scrap metal in general." It is
unclear from the record when these items were placed in the
defendant's sport utility vehicle (SUV), and whether they were
collected before or after the defendant left Amy Court.
7
doing. He had driven to that location previously to collect junk
metal; and he conducted his search for scrap metal during
daylight hours. The defendant drove from the paved road onto a
dirt trail leading into the woods, and saw two lengths of steel
pipe, which he picked up and placed in his SUV, along with other
items.
The defendant was leaving the area when he encountered
Lufkin, who had driven down the road to meet him. The defendant
stopped his vehicle, and Lufkin accused him of dumping.4 When
the defendant replied that he was "just picking up junk steel,"
Lufkin said he did not have a problem with that, and the
defendant drove off. Later, when he was met by Parise at the
junkyard, the defendant admitted taking the steel pipes, and said
he believed they had been abandoned. He also testified, as he
had told Parise, that there were steel plates in his vehicle that
did not come from Amy Court. At Parise's request, the defendant
voluntarily returned to Amy Court. There, he met with Parise,
Lufkin, and Kroboth. The defendant returned the two lengths of
4
Lufkin testified that on at least one prior occasion he
had seen the defendant drive down to the end of Amy Court, and
noticed that there were tires tied to the top of his SUV. This
caused Lufkin to be concerned that the defendant "was going to
try to dump the tires down below." The defendant also testified
that he believed Lufkin was concerned primarily with whether he
was dumping items.
8
steel pipe Lufkin identified as belonging to the developer of Amy
Court; he was not asked to return the steel plates.5
c. Closing arguments. In closing, defense counsel directed
the judge's attention to Commonwealth v. White, 5 Mass. App. Ct.
483 (1977), and argued that the case "stands for the proposition
that the defendant is not guilty of larceny if the defendant had
a mistaken but honest belief the defendant was entitled to the
property."6 Counsel maintained that, because the defendant
"honestly thought he was entitled to have" what he believed was
abandoned property, and returned it when it was claimed by the
owner, the Commonwealth failed "to prove[] beyond a reasonable
doubt that [the defendant] intended to permanently deprive [the
owner] of the property."
5
Lufkin testified that when the defendant and Parise
returned to Amy Court, the defendant claimed the flat pieces of
steel were from another site; Lufkin acknowledged that the
defendant returned the lengths of pipe. Lufkin's employer
testified that all of the materials identified by Lufkin as
having been taken were returned.
6
The defendant in Commonwealth v. White, 5 Mass. App. Ct.
483 (1977), was charged with stealing fifty dollars from his
employer at gunpoint in a bar. Based on the defendant's
testimony, "it was open to the jury to find" that the defendant's
employer owed him fifty dollars in wages; seeing the employer in
the bar, the defendant demanded his money, and the employer threw
it down on the bar counter, whereupon the defendant, believing
the money was his, took it and left; he did not point his gun at
the employer. Id. at 485. The Appeals Court reversed the
defendant's conviction after concluding that the jury had not
been not properly instructed. Id. at 488-489.
9
The prosecutor argued that, even if the defendant's belief
were an honest one, that belief also had to be objectively
reasonable. He pointed to evidence that the construction
materials had been hidden behind a pile of top soil, that signs
stating the area was private property had been posted on trees in
the vicinity of the dirt pile, and that the defendant had
admitted to taking the items from that area as support for the
prosecutor's claim that the defendant’s belief was not
reasonable.
d. Verdict. The judge rejected the defendant's argument.
In announcing his verdict, the judge stated that "the presence of
the no trespassing sign puts [the defendant] on notice that the
property was not for [him] to take. [The defendant's] honest
belief at that point would not be relevant."7
2. Discussion. The offense of larceny is defined in G. L.
c. 266, § 30 (1), as follows:
"Whoever steals, or with intent to defraud obtains by a
false pretence, or whoever unlawfully, and with intent to
steal or embezzle, converts, or secretes with intent to
convert, the property of another as defined in this section,
whether such property is or is not in his possession at the
time of such conversion or secreting, shall be guilty of
larceny . . . ."
7
Apparently believing that the holding of Commonwealth v.
White, supra, was limited to factual circumstances involving the
taking of money from a person, similar to the circumstances in
that case, the judge also suggested, incorrectly, that a
"different intent" applies to larceny offenses that do not
involve taking money.
10
To convict a defendant of larceny requires that the Commonwealth
prove that a defendant took the personal property of another
without the right to do so, and "with the specific intent to
deprive the other of the property permanently." Commonwealth v.
Murray, 401 Mass. 771, 772 (1988).
a. Honest but mistaken belief. A defendant has
sufficiently raised the defense of mistaken belief "if any view
of the evidence" would support a factual finding that the
defendant honestly believed that the items he took were
abandoned. Commonwealth v. Vives, 447 Mass. 537, 541 (2006).
Here, in addition to the defendant's testimony that he
believed that the property he took had been abandoned, there was
evidence at trial, viewed favorably to the defendant, from which
a fact finder could have inferred that, notwithstanding the
presence of the no trespassing signs, the paved cul-de-sac named
Amy Court, as well as the construction site surrounding it, were
open to the public to permit inspection of the lots on which
townhouses were to be constructed. The evidence also permitted
the inference that the defendant's denials to Parise of having
taken anything from "Amy Court" reflected a misunderstanding as
to the location the officer meant when he referred to "Amy
Court"; there was evidence that the defendant was unaware that
the paved cul-de-sac was private property, or that the dirt trail
11
at the end of that cul-de-sac was part of the Amy Court
development then under construction. The left-over lengths of
steel pipe taken by the defendant were behind a pile of soil, in
an area where no construction was then taking place.
b. Law on offense of larceny. It has been long established
that the specific intent to steal is negated by a finding that a
defendant held an honest, albeit mistaken, belief that he was
entitled to the property he took. See, e.g., Commonwealth v.
Brisbois, 281 Mass. 125, 128-129 (1932) (jury correctly
instructed that, if defendant "honestly thought" he had legal
right to remove wooden building, "then there was no criminal
intent to steal"); Commonwealth v. McDuffy, 126 Mass. 467, 469,
471 (1879) (where defendant charged with statutory forerunner of
G. L. c. 266, § 30 [1], trial judge erred in excluding evidence
"competent upon the issue of the defendant's belief" that money
he took was due him); Commonwealth v. Stebbins, 8 Gray 492, 495
(1857) (court noted as "clearly unexceptional" jury instruction
"that the defendant was not guilty of larceny, if she took the
money under an honest belief that she had a legal right to take
it"). See also Commonwealth v. Weld, Thacher's Crim. Cas. 157,
163 (Boston Mun. Ct. 1827) (judge instructed, "if [the defendant]
honestly thought he had a right to the paper, it excludes the
idea of a felonious taking").
12
Twenty-five years before Commonwealth v. White was decided,
the United States Supreme Court held in Morissette v. United
States, 342 U.S. 246, 271 (1952), that an honest, though
mistaken, belief that property was abandoned is a defense to
larceny.8 Noting that stealing government property was a crime
of specific intent, the Court held that evidence of a defendant's
honest belief should have been presented to the jury, and
reversed the defendant's conviction, stating:
"[I]t is not apparent how [the defendant] could have
knowingly or intentionally converted property that he did
not know could be converted, as would be the case if it was
in fact abandoned or if he truly believed it to be abandoned
and unwanted property.
". . .
"Whether that intent existed, the jury must determine,
not only from the act of taking, but from that together with
[the] defendant’s testimony [that he believed the spent
casings to be abandoned] and all of the surrounding
circumstances. . . . [On proper instructions, the jury]
might have concluded that the heaps of spent casings . . .
presented an appearance of unwanted and abandoned junk, and
that lack of any conscious deprivation of property . . . was
indicated by [the defendant's] good character, the openness
of the taking, crushing and transporting of the casings, and
the candor with which it was all admitted."
8
The facts in Morissette v. United States, 342 U.S. 246
(1952), are quite similar to those here: the defendant, who
collected and sold junk metal, found several spent bomb casings
on an Air Force bombing range that was known to be good hunting
grounds and was frequented by hunters. Id. at 247. Several
signs stating "Danger -- Keep Out -- Bombing Range" were placed
on the range. The defendant loaded the casings into his truck in
broad daylight, and testified that he believed the property was
abandoned. Id. at 247-248.
13
Id. at 271, 276.
c. Source of reasonable belief language. The decision in
Commonwealth v. White, supra, appears to have departed from this
settled principle when, in summarizing the law, the Appeals Court
stated that the jury must acquit a defendant of larceny if they
find "that the defendant honestly and reasonably believed that
the money he took from [the victim] represented a debt actually
due from [the victim] to the defendant" (emphasis supplied).9
Id. at 488.
9
Commonwealth v. Low, Thatcher's Crim. Cas. 477 (Boston
Mun. Ct. 1837), which is quoted in Commonwealth v. White, supra
at 486-487, makes use of the "reasonably believed" language, and
may have been one source of confusion. In Commonwealth v. Low,
supra at 480, 485, the jury were instructed,
"The question of [the defendant's] intention is for the
jury in all cases, and it is to be inferred from all the
circumstances of the case . . . . If the defendant has
satisfied you, or you believe from all the evidence in the
case, that [the defendant] acted with good faith on his
part, that he reasonably believed that he had a good cause
of action . . . , and that he might lawfully use this
trustee process in this manner, to obtain security for his
demand, that will negative the felonious intent, and will
authorize you to give a verdict of acquittal."
In that case, the defendant, who was indebted to the victim,
gave the victim notes as collateral security for the amount due
plus interest. The Commonwealth alleged that, as part of a
fraudulent scheme, the defendant obtained a writ of trustee
process that was to be served on his codefendant as soon as the
codefendant was able to obtain the notes from the victim, who was
bringing them in anticipation of payment. The judge further
instructed, "A felonious taking supposes not only a trespass, but
a fraudulent and wicked mind in the trespasser, acting against
his own conviction of right, and the plain dictates of common
14
The addition of a requirement of a reasonable belief is
inconsistent with the White court's reliance on cases such as
Commonwealth v. McDuffy, supra, and Commonwealth v. Weld, supra.
Indeed, the White court observed that the jury should have been
instructed as the defendant had requested,10 "because it was open
to the jury to find on [the defendant's] testimony that he
honestly believed that he was taking his own money from [another]
and that if the jury had so found, they could not have found the
requisite intent to steal and would have been obliged to acquit
the defendant of larceny." Commonwealth v. White, supra at 486.
Moreover, in framing the question of honest belief, the court
noted that the implications of the cases on which it relied "are
confirmed by the authoritative writers in the field of criminal
law." Id. at 487.
Among those authorities, the White court quoted R.M.
Perkins, Criminal Law 271 (2d ed. 1969), for the proposition
honesty," id. at 479, and that the jury could consider whether
the defendant had a reasonable belief that he could take out the
writ and obtain the notes in the way that he did. If the jury
believed that the defendant had a "fraudulent plan" to transfer
the notes from the victim's possession to his own, and that the
defendant was "aware at the time that he committed a wrongful
act, [the jury would] have the right to infer . . . that the
defendant had a preconcerted design to get the notes into his
possession, with the intent to steal them." Id. at 484.
10
The defendant had requested an instruction that, "[i]f the
defendant believed that the money he had acquired from [the
victim] was actually his money, [the] defendant is not guilty of
a charge of larceny." Commonwealth v. White, supra at 485.
15
that, under the then-prevailing view of the law, "no larceny is
committed if the taking is open . . . and with a bona-fide belief
in the right to collect the debt in that manner." Commonwealth
v. White, supra. That treatise also states, "[S]o long as the
claim [of mistaken belief] is genuine and sincere there is no
larceny, even if it is quite ill-grounded." R.M. Perkins,
Criminal Law, supra at 265-266. The court in White also cited
R.A. Anderson, Wharton's Criminal Law and Procedure § 456, at 90-
91 (1957),11 and W.R. LaFave & A.W. Scott, Criminal Law § 88, at
638, and § 94, at 693-695 (1972),12 for the same principle. As
they continue to do to date, these authorities explicitly
rejected a requirement that such an honest belief also must be
objectively reasonable. See W.R. LaFave & A.W. Scott, Criminal
Law, supra at § 88, at 638 (where person takes property under
mistaken belief he owns it, it was abandoned, or he was given
11
"A defendant does not commit larceny if he takes property
of another under the honest belief that it is his property. . . .
The defendant is not guilty of larceny if he has acted under a
bona fide belief that a person giving him the permission to take
the property had authority to do so, or that one whom he assists
in the taking has a right thereto" (footnotes omitted). R.A.
Anderson, Wharton's Criminal Law & Procedure § 456, at 90-91
(1957).
12
"One may take the property of another honestly but
mistakenly believing (1) that it is his own property, or (2) that
it is no one's property, or (3) (though he knows it is another's
property) that the owner has given him permission to take it as
he did." W.R. LaFave & A.W. Scott, Criminal Law § 88, at 638
(1972). See id. at § 94, at 693-695 (1972).
16
permission, "he lacks the intent to steal required for larceny,
even though his mistaken but honest belief was unreasonable"
[footnotes omitted]).13
Based on the foregoing, we do not think that the Appeals
Court in Commonwealth v. White, supra at 488, intended to depart
from the long-established principle that an honest belief need
not be objectively reasonable to negate the specific intent
required for larceny, despite its use of the phrase "honestly and
reasonably believed." The discussion of the cases and
authorities in Commonwealth v. White, reflects that court's
understanding of "[t]he rather simple rule that an honest mistake
of fact or law is a defense when it negates a required mental
element of the crime." W.R. LaFave & A.W. Scott, Criminal Law
§ 47, at 357 (1972). It is of some significance that the White
court was not asked to focus specifically on the question whether
reasonableness of belief was a concept separate from good faith
belief, and reasonableness of the defendant’s belief was neither
raised nor discussed. As W.R. LaFave & A.W. Scott, Criminal Law,
13
Since 1977, commentators have continued to state that the
specific intent required to be found guilty of larceny may be
negated where a defendant holds a mistaken but honest belief that
the property he is charged with stealing was his to take. See 3
W.R. LaFave, Substantive Criminal Law § 19.5(a), at 88 (2d ed.
2003); R.M. Perkins & R.N. Boyce, Criminal Law 326 (3d ed. 1982).
See also Model Penal Code § 223.1(3)(a)-(b) (1980) ("It is an
affirmative defense to prosecution for theft that the actor:
[a] was unaware that the property or service was that of another;
or [b] acted under an honest claim of right . . . .").
17
supra, also notes, that "simple rule" may be misapplied "because
of uncritical acceptance of the general statement that the
mistake must be reasonable."
Evidence of reasonableness may, however, be considered by
the jury to assist in their determination whether to credit a
defendant's honest belief.14 "Neither juries nor judges are
required to divorce themselves of common sense, but rather should
apply to facts which they find proven such reasonable inferences
as are justified in the light of their experience as to the
natural inclinations of human beings." United States v. Tejeda,
974 F.2d 210, 213 (1st Cir. 1992), quoting United States v.
Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991). See W.R.
LaFave & A.W. Scott, Criminal Law, supra at § 88, at 638 ("the
openness of the taking, as well as the reasonableness of the
belief, though not conclusive, will buttress [a defendant's]
claim of good faith"); R.M. Perkins & R.N. Boyce, Criminal Law
326 (3d ed. 1982) ("A mere pretense advanced in bad faith will
14
We note that the current version of Instruction 8.520,
Supplemental Instruction 7, of the Criminal Model Jury
Instructions for Use in the District Court (2009) includes the
same incorrect language on "reasonable belief":
"Claim of right. If the defendant took another
person's property in an honest and reasonable belief that
(he) (she) (another person on whose behalf he [she] was
acting) had a legal right to it, then you must find the
defendant not guilty, even if that belief was in fact
mistaken, because he [she] lacked the intent to steal."
18
not prevent conviction of larceny . . ."). See also Morissette
v. United States, 342 U.S. at 276 (considering evidence of
defendant's awareness that "casings were on government property,
his failure to seek any permission for their removal and his
self-interest as a witness," jury could disbelieve his profession
of innocent intent).
d. Affirmative defense of honest belief. A defendant may
raise an honest, yet mistaken, belief as an affirmative defense.15
See Commonwealth v. Vives, 447 Mass. at 540-541. A defendant's
honest belief that the property he took was abandoned constitutes
an affirmative defense to larceny. Abandoned property is
property "to which the owner 'has relinquished all right, title,
claim, and possession, but without vesting it in any other
person.'" Griffith v. New England Tel. & Tel. Co., 414 Mass.
824, 828 (1993), S.C., 420 Mass. 365 (1995), quoting Black's Law
Dictionary 3 (6th ed. 1990). See Black's Law Dictionary, 1411
(10th ed. 2014) (defining "abandoned property" as "[p]roperty
that the owner voluntarily surrenders, relinquishes, or
disclaims").
15
Although we use the term affirmative defense, in this
context the Commonwealth nonetheless bears the burden of proof
because the defense addresses an element of the offense of
larceny, the defendant's specific intent to steal. Once a
defendant meets the burden of production, the burden of proof
shifts to the Commonwealth to disprove the defense. Commonwealth
v. Vives, 447 Mass. 537, 541 (2006).
19
3. Conclusion. The judgment of conviction is vacated and
set aside, and the matter is remanded to the District Court for
further proceedings consistent with this opinion.
So ordered.