Commonwealth v. Pearson

By the Court (Green, Hanlon & Maldonado, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

After a jury trial, the defendant, Amy Ann Pearson, was convicted of unarmed robbery. She appeals, arguing that there was insufficient evidence to support her conviction, and that the judge erred in refusing, over her objection, to instruct the jury on a lesser included offense of shoplifting. We affirm.

Background. On June 20, 2012, Susan Reno, the director of loss prevention for Honey Farms, Inc., in Worcester, was at the Millbury Street store, overseeing the installation of additional security cameras. While she was in the manager's office, she observed on a monitor screen a male and female, later identified as Alexis Otero and the defendant, putting grocery items in a backpack Otero was wearing. Specifically, "he had a backpack on, and she was filling it up." Reno went out into the store and, as was her practice, she stood at the end of the aisle where the couple was taking the items in an attempt to get their attention; she hoped that they would "just get up and leave." As she did not appear to get the couple's attention, she then positioned herself to the right of the front exit of the store to avoid "caus[ing] a big scene" because there were a number of people in the store at the time.

The couple approached Reno as they were leaving the store, with Otero in front, and the defendant "walking slightly behind him." Reno said to Otero, "Would you please put that stuff back? It doesn't belong to you." Otero replied, "What stuff?" and Reno "reached over and pointed to his backpack." At that point, Otero pushed Reno's shoulder with his shoulder, and put his hands on her face. He forcefully pushed Reno backwards through the glass and steel front door causing her to hit her back and the back of her head against the door; she then fell out of the door, into a truck parked outside, landing on her knees on the sidewalk in front of the store. While she was still on the ground, Reno saw the defendant grab a newspaper on her way out of the store. As the two walked together past Reno on the sidewalk, Otero said to her, "Stupid bitch -- you didn't get any of your stuff back." The couple then walked together toward Kelley Square. Reno went back into the store and asked the manager to call the police.

Discussion. Sufficiency of the evidence. The defendant argues, as she did in her unsuccessful motion for a required finding of not guilty, that, although there was ample evidence to show that she participated in the crime of shoplifting, the evidence was insufficient to support her conviction of unarmed robbery. We disagree.

To prove unarmed robbery, the Commonwealth was required to show that the defendant "robbed 'by force and violence, or by assault and putting in fear.' G. L. c. 265, § 19(b). To prove that a robbery was committed 'by assault and putting in fear,' the Commonwealth must establish actual fear or apprehension on the part of the victim." Commonwealth v. Garrett, 473 Mass. 257, 267 (2015), quoting from Commonwealth v. Joyner, 467 Mass. 176, 187 (2014). In addition, this case was tried on the theory that this defendant was a joint venturer with Otero: joint venture was the essence of the prosecutor's argument and of the judge's thorough instructions to the jury, at least as they related to this defendant. "To prove the defendant's participation as a joint venturer in [a] . . . robbery, the Commonwealth was required to prove beyond a reasonable doubt that the defendant knowingly participated with [Otero] in the commission of the . . . robbery and shared the necessary intent for the crime. See Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009)." Commonwealth v. Benitez, 464 Mass. 686, 689 (2013).

Reviewing the facts in the light most favorable to the Commonwealth, the jury reasonably could have found that Otero used force and violence, assaulting Reno and also putting her in fear; that the defendant knowingly participated in the robbery, sharing Otero's intent, and participating as the two forced their way out the front exit with the stolen items. Reno testified that after she was forcefully shoved through the front door, she landed on her knees on the sidewalk outside, that she was "pretty shaken up," and that her "knees were all banged up." We are satisfied that the evidence was sufficient under the standard set forth in Latimore to establish beyond a reasonable doubt that the defendant had committed an unarmed robbery. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

Jury instruction. The defendant also argues that the judge erred in refusing, over her objection, to instruct the jury on shoplifting as a lesser included offense of unarmed robbery. There was no error, as shoplifting is not, in fact, a lesser included offense of armed robbery. It is well settled that a lesser included offense is "one whose elements are a subset of the elements of the [greater] charged offense." Commonwealth v. Porro, 458 Mass. 526, 531 (2010). "An offense is a lesser included offense only if one cannot be found guilty of the greater offense without also being guilty of the lesser offense." Commonwealth v. Torres, 468 Mass. 286, 289 (2014).

As we said, supra, unarmed robbery requires that a defendant be "robbed 'by force and violence, or by assault and putting in fear.' G. L. c. 265, § 19(b)." Garrett, supra. By contrast, the elements of shoplifting require a showing that the defendant "intentionally take[] possession of . . . any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of [its] possession . . . without paying to the merchant the value thereof." Commonwealth v. Rogers, 459 Mass. 249, 263 (2011), quoting from G. L. c. 266, § 30A. "Shoplifting includes the additional element that the property taken be that of a 'merchant.' These distinctions preclude treatment of shoplifting as a lesser included offense of armed robbery." Ibid. See Commonwealth v. Kegler, 65 Mass. App. Ct. 907, 909 (2006) ("Assault and battery is not a lesser included offense of unarmed robbery, as each requires an element that the other does not"). Because there was no rational basis in the evidence to give an instruction on shoplifting as a lesser included offense, the judge did not err in refusing to do so. Cf. Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 690 (1998).

Judgment affirmed.

By the Court (Green, Hanlon & Maldonado, JJ.),

/s/

Clerk Entered: October 3, 2016.