Commonwealth v. Liebenbow (Lawyers Weekly No. 11-126-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑2163 Appeals Court COMMONWEALTH vs. CARL B. LIEBENOW, JR.[1] No. 11‑P‑2163. Berkshire. March 27, 2013. ‑ October 17, 2013. Present: Rapoza, C.J., Cypher, Berry, Sikora, & Milkey, JJ. Larceny. Intent. Practice, Criminal, Affirmative defense, Waiver of trial by jury. Constitutional Law, Waiver of constitutional rights. Mistake. 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. Elizabeth Caddick for the defendant. James F. Petersen, Assistant District Attorney, for the Commonwealth. 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. 1. Background of the trial and guilty finding. The following is a brief summary of the trial evidence and entry of the guilty finding. The construction site from which the defendant took the […]