Here’s the legal lesson for today, folks. In Massachusetts prosecutors can
- charge a defendant with breaking and entering a dwelling with intent to commit a misdemeanor;
- never specify what misdemeanor the defendant intend to commit; and
- still get a lawful conviction at trial.
That’s the takeaway from Commonwealth v. Jill McGrath 24-P-530.
According to court documents, McGrath allegedly entered a house after being evicted. She took a coat that belonged to her and left.
As she got into her car the houseowner’s dog jumped into the passenger’s seat. McGrath allegedly drove away with the dog and then set the pooch free somewhere down the road.
Police charged McGrath with breaking and entering with intent to commit a misdemeanor. See G.L. c. 266, Sec. 16A.
She contested the charge at a jury-waived, bench trial.
During the trial, prosecutors did not specify exactly what misdemeanor McGrath intended to commit when she entered the dwelling.
The alleged dognapping took place after McGrath left the residence. So that offense wouldn’t likely qualify.
Nevertheless, the trial judge convicted McGrath.
Her lawyer appealed arguing that there was insufficient evidence for the conviction.
The Appeals Court disagreed with McGrath’s lawyer and affirmed the conviction.
According to the justices,
Although we agree there was not sufficient evidence to show the defendant’s intent to commit larceny at the time she broke into and entered the victim’s home, there was sufficient evidence to show that she intended to commit criminal trespass.
But, you may protest, the prosecutor didn’t explicitly argue that McGrath intended to commit a trespass when she entered another person’s home without permission.
That doesn’t matter, according to the justices, because the intent to trespass can be inferred from the facts.
The intent to commit a felony at the time of entry may be inferred from the commission of a felony once inside. We see no reason why the same cannot be said of the intent to commit a misdemeanor. It can reasonably be inferred from the fact that the defendant had been removed from the home, returned without permission to find a locked door, and entered anyway that she intended to trespass at the time of the breaking and entering. (Citations and quotations omitted.)
(Do you buy that line of reasoning? Because I’m not sure that I do.)
In light of this opinion, defense attorneys would be wise to file a motion for a bill of particulars anytime they have a client facing the charge of B&E with intent to commit a crime and the intended crime is unclear. The motion should force the prosecutor to specify what crime the defendant intended to commit. This way you’re not trying to hit a moving or invisible target at trial.
The full text of the slip opinion is attached.