(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.1
*399Background. 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.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 *400specific 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,3 and stated his belief that that material had *401been 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.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.5 The judge’s guilty finding is thus *402bound up in the view of the law urged by the Commonwealth.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).7
The case law has long recognized that a defendant cannot be guilty of larceny if she “took the [property] under an honest *403belief 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.8
Nevertheless, as the majority accurately observes, the Com*404monwealth’s 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.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).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 *405held.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.12 As noted, by definition, one cannot consciously intend to steal *406property 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 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.”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 *407done 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.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 *408issue of reasonableness.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.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, “[tjhere 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 *409found 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”).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 *410genuinely 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.18
At the same time, I disagree with the defendant’s contention that the judge specifically found that the defendant honestly held his professed belief. Instead, as discussed infra, the judge saw no need to resolve that question. Moreover, the evidence, when viewed in the light most favorable to the Commonwealth, *399was plainly sufficient to support a conviction of larceny. Therefore, the Commonwealth would be entitled to seek a retrial even if the conviction were vacated.
I concur in part 3 of the court’s opinion (concerning the adequacy of the defendant’s jury trial waiver).
The statements that follow present a neutral recounting of the trial evidence. I note, however, that in considering whether the defendant fairly raised his defense that he honestly believed he had a right to take the property, the defendant is entitled to have the evidence viewed in a light most favorable to him. Compare Commonwealth v. Kingston, 46 Mass. App. Ct. 444, 449-450 (1999). Cf. Commonwealth v. Pike, 428 Mass. 393, 395 (1998) (in determining whether defendant is entitled to instruction on self-defense, “all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true”). For its part, the majority improperly views the trial evidence in a light favorable to the Commonwealth. For example, the majority, ante at 389-390, rejects the defendant’s explanation for why his trial testimony was in fact fully consistent with earlier statements he had made to police (see note 3, infra), and concludes that the defendant “changed [his] story” after he “lied when first confronted by the police” (even though the trial judge made no findings on such issues). This amounts to appellate fact finding.
The police witness testified that the defendant initially “admitted to taking *401the property, but he was adamant that it was from another location.” The defendant did not dispute that he made such statements, but he claims that his denials were specific to certain steel plates found in his truck, and that the officer’s testimony is not to the contrary. The defendant has consistently maintained that the steel plates were taken from a different location. Lufkin testified that the plates were from the site.
The presumption that a judge sitting without a jury has correctly instructed himself on the law applies only “absent contrary indication.” Commonwealth v. Kerns, 449 Mass. 641, 650 n.13 (2007). In any event, I agree with the majority that the judge accepted the Commonwealth’s view of the law; the question is whether that view is correct.
The majority itself recognizes that the judge accepted the Commonwealth’s view of the law and that he “determined that the defendant’s stated belief[,] *402. . . even if considered as honest in the defendant’s subjective mind, was not objectively reasonable based on the case evidence.” Ante at 388.
The Commonwealth maintains that the judge was trying to say that he did not believe the defendant. Had the judge simply concluded that the defendant was lying, he could have expressed that conclusion in far more straightforward terms than the explanation he offered. Instead, he explicitly found that any “honest belief” on the defendant’s part that the property was abandoned “would not be relevant.” See Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992) (judge sitting without jury may “make an express ruling on a disputed point of law,” preserving issue for appeal).
In offering his comments at the end of the trial, the judge suggested that “a different intent” applied to larceny cases, such as the one before him, that did not involve “taking money from a person.” As the Commonwealth concedes, there is no merit to this distinction.
See Commonwealth v. Blow, 370 Mass. 401, 407 (1976) (specific intent is “purpose or objective of the defendant at the time the crime was committed”). Compare Commonwealth v. Judge, 420 Mass. 433, 441 (1995) (in prosecution for murder in first degree, under theory of deliberate premeditation, third prong of malice, which “permits an inference of intent under an objective [a reasonably prudent person] standard . . . , does not satisfy the requirement of specific intent”).
In Commonwealth v. White, 5 Mass. App. Ct. at 485, the defendant, who had been charged with stealing money from his employer, testified that he had merely been collecting unpaid wages to which he was rightfully entitled. The defendant urged error in the trial judge’s refusal to instruct the jury that he could not be guilty of larceny if he “believed that the money . . . was actually his money.” Ibid. We agreed that the defendant was entitled to an instruction similar to the one he requested and therefore reversed the conviction. Id. at 488. Although we specifically commented that the defendant was entitled to an instruction that he should be acquitted of larceny if the jury concluded that he “honestly and reasonably believed” he was entitled to the money, the question whether an honest but unreasonable belief would likewise merit acquittal was not presented or considered, and the court’s attention remained focused on the possibility of “an honest belief on the defendant’s part.” Ibid. Moreover, the “honest and reasonable” formulation was not accompanied by any analysis, explanation, or supporting citation to an appellate opinion. See id. at 486-488 (citing in this regard only Commonwealth v. Low, Thacher’s Crim. Cas. 477, 485 [Boston Mun. Ct. 1837]).
In incorporating the “honest and reasonable” formulation, the model jury instruction on larceny itself specifically cites to Commonwealth v. White, supra. See Criminal Model Jury Instructions for Use in the District Court, Instruction 8.520, Supplemental Instruction 7 (2009).
See Commonwealth v. Gelpi, 416 Mass, at 731 (defense counsel was ineffective in failing to request mistake of fact instruction); Commonwealth v. Vives, 447 Mass, at 540 (defendant claimed that judge’s instruction on “honest and reasonable belief” improperly shifted burden of proof); Commonwealth v. Anslono, 9 Mass. App. Ct. at 867-868 (judge failed to give any meaningful instruction on larcenous intent); Commonwealth v. Larmey, 14 Mass. App. Ct. at 283 (judge failed to give any instruction on mistake of fact defense); Commonwealth v. Newhook, 34 Mass. App. Ct. at 961 (judge “did not adequately apprise the jury that the defense invoked by the defendant could negate the element of intent, or that it was the Commonwealth’s burden to disprove the defense beyond a reasonable doubt”).
The majority emphasizes that a claim that one was entitled to the property taken is an “affirmative defense.” To be sure, once the Commonwealth has presented a prima facie case, the burden is on the defendant to raise the issue. See Commonwealth v. Vives, 447 Mass, at 540-541. However, such a claim is not a “defense” in the sense that it provides a justification for the defendant’s *406actions notwithstanding the Commonwealth’s proof of the essential elements of the crime; instead it is an assertion that the Commonwealth has failed to prove all those elements. See Commonwealth v. Lopez, 433 Mass, at 725 n.3. The burden remains on the Commonwealth to prove beyond a reasonable doubt that the defendant in fact possessed the requisite intent. See Commonwealth v. Vives, supra at 541.
See also Commonwealth v. Lopez, 433 Mass, at 728, where the Supreme Judicial Court observed that, because our rape statute requires no mens rea as to lack of consent, “[a]ny perception (reasonable, honest, or otherwise) of the defendant as to the victim’s consent is . . . not relevant to a rape prosecution.”
The cases, both ancient and modem, come from all areas of the country. See, e.g., State v. Varszegi, 33 Conn. App. 368, 373 (1993), quoting from 50 Am. Jur. 2d Larceny § 41 (Supp. 1993) (“A defendant who acts under the subjective belief that he or she has a lawful claim on property lacks the required felonious intent to steal. Such a defendant need not show his mistaken claim of right was reasonable, since an unreasonable belief that he had a right to take another’s property will suffice so long as he can establish his claim was made in good faith”); Charles v. State, 36 Fla. 691, 701 (1895) (“[T]he good faith and honest belief of the defendant need not be such as would be entertained by a reasonable and pmdent man, provided it was really honest and in good faith, and not a sham or pretense”); Binnie v. State, 321 Md. 572, 581 (1991) (“In short, under the circumstances and the factual situation presented by Binnie, it was within the province of the jury, not of the court, to determine whether Binnie should benefit from the honest belief defense, regardless of how dubious, suspect, farfetched, and incredible Binnie’s account may have appeared to the trial judge”); People v. Karasek, 63 Mich. App. 706, 711 (1975) (“A felonious intent is an inseparable and essential ingredient of every larceny, and if a person takes property under a claim of right, however[] unfounded, he is not guilty of the offense” [citation omitted]). See also State v. Abbey, 13 Ariz. App. 55, 57 (1970); People v. Romo, 220 Cal. App. 3d 514, 518 (1990); State v. Cavness, 80 Haw. 460, 465-466 (Ct. App. 1996); Stuart v. People, 73 Ill. 20, 22 (1874); State v. Sexton, 160 N.J. 93, 101-102 (1999); People v. Zona, 14 N.Y.3d 488, 493 (2010); State v. Lawrence, 262 N.C. 162, 168 (1964); Tate v. State, 706 P.2d 169, 171 (Okla. Crim. App. 1985); Green v. State, 153 Tex. Crim. 442, 449 (1949); State v. Ward, 151 Vt. 448, 451-452 (1989).
See, e.g., Lee v. State, 102 Ga. 221, 223-224 (1897); State v. Snowden, 7 Ohio App. 3d 358, 362-363 (1982); Butts v. Commonwealth, 145 Va. 800, 812 (1926).
In some jurisdictions, reasonableness is required by statute, at least under some circumstances. See, e.g., Or. Rev. Stat. § 164.035(1) (2011) (providing defense if defendant “reasonably believed that [he] was entitled to the property involved” or if he “was unaware that the property was that of another”); 18 Pa. Cons. Stat. Ann. § 304 (West Supp. 2013) (mistake only a defense if it has “reasonable explanation or excuse”). However, even in one such jurisdiction, an appellate court has held that an unreasonable mistake would preclude a conviction for theft if it negated the specific intent to steal. See Green v. State, 153 Tex. Crim. 442, 445, 449 (1949). Similarly, in State v. Sexton, 160 N.J. 93 (1999), the New Jersey Supreme Court concluded that under New Jersey’s mistake of fact statute, which contains language requiring a mistaken conclusion to be “reasonably arrived at” in order to furnish a defense, id. at 103, a negligent or reckless mistake would be considered “reasonable” if the crime charged required proof of a greater culpability than negligence or recklessness, respectively. Id. at 105-107. Therefore, a defendant charged with a crime requiring proof of intent to steal would be entitled to an acquittal if he negligently or recklessly took someone else’s property, notwithstanding the fact that negligent or reckless conduct is ordinarily considered “unreasonable.” Ibid.
As in any other case where a defendant’s state of mind is at issue, a jury in a case such as this one must assess the defendant’s credibility in light of all the facts and circumstances and determine whether the Commonwealth has proved beyond a reasonable doubt that he possessed the requisite mens rea. See Commonwealth v. Keefner, 461 Mass. 507, 517 (2012). The majority’s concern, ante at 391, that a fact finder will be “compelled” to acquit a defendant merely because he claims to have held an honest belief in the right to take property is misplaced. A jury are no less equipped to evaluate a claim that a defendant honestly believed that property was abandoned than, for example, a claim that he did not know certain property was stolen, see Commonwealth v. Dellamano, 393 Mass, at 136-137, or that he did not know that a coventurer was armed, see Commonwealth v. Bolling, 462 Mass. 440, 453-454 (2012).
Of course, in any new trial, see note 1, supra, it would be up to the fact finder to evaluate the extent to which the defendant’s factual claims should be credited.