Commonwealth v. Biesiot (Lawyers Weekly No. 11-092-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-314 Appeals Court COMMONWEALTH vs. JOHN H. BIESIOT. No. 16-P-314. Suffolk. January 10, 2017. – July 19, 2017. Present: Grainger, Wolohojian, & Neyman, JJ.[1] Practice, Criminal, Required finding. Evidence, Consciousness of guilt, Identity, Inference. Massachusetts Bay Transportation Authority. Complaints received and sworn to in the Brighton Division of the Boston Municipal Court Department on February 18, 2010, February 15, 2012, and September 25, 2012. The cases were tried before David T. Donnelly, J. Dana Alan Curhan for the defendant. Nicholas Brandt, Assistant District Attorney, for the Commonwealth. NEYMAN, J. After a jury trial in the Brighton Division of the Boston Municipal Court Department, the defendant, John H. Biesiot, was convicted of fifteen counts of vandalizing property. On appeal, he contends that the evidence was insufficient to establish that he committed the offenses.[2] We affirm in part and reverse in part. Background. We summarize the facts as the jury could have found them, reserving certain details for our analysis of the issues raised on appeal. Lieutenant Detective Nancy O’Loughlin (Lieutenant O’Loughlin) of the Massachusetts Bay Transportation Authority (MBTA) police has spent nearly three decades investigating and prosecuting graffiti vandalism, also referred to as “tagging.” See Commonwealth v. Iago I., 77 Mass. App. Ct. 327, 331 (2010) (referencing practice of spray painting name or sign on particular location as “tagging”). She had extensive training on and experience with investigating tagging incidents and the tagging “subculture.”[3] Lieutenant O’Loughlin described how individuals engaged in the tagging subculture tend to adopt a “specific tag name,” which is akin to a signature that represents the tagger’s identity, and provides the tagger “credit or fame.” She testified that taggers often congregate and form a “crew,” adopt a crew name, typically with a three-letter acronym, and “go out on missions” to place their crew and individual tags on a targeted location, often at or near rival crews’ tags. The crew tag is often placed “alongside the [individual’s] tag, or somewhere in the tag.” In October, 2005, Lieutenant O’Loughlin, later assisted by members of a joint task force that included Boston police Detective William Kelley, began to investigate a series of related tagging incidents in the Boston area involving MBTA property.[4] Specifically, on October 12, 2005, the tag “Wyse” was found on trains at the […]