# Commonwealth v. Rousseau > Massachusetts Appeals Court · May 6, 2004 · 61 Mass. App. Ct. 144 URL: https://www.frixlaw.com/law-library/cases/6462125 ## Case - **Full name:** Commonwealth v. John D. Rousseau - **Court:** Massachusetts Appeals Court - **Decided:** May 6, 2004 - **Citations:** 61 Mass. App. Ct. 144; 807 N.E.2d 832; 2004 Mass. App. LEXIS 485 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Berry, Brown - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6462125 ## Opinion text Brown, J. (dissenting in part, with whom Mason, J., joins). Although I agree that the evidence at trial was sufficient to show that the camcorder found in the defendant’s possession was the camcorder taken from the Metropolitan District Commission building in Oakham State Park, and although possession of recently stolen property can be relied on as evidence that the possessor stole the property, see Commonwealth v. Grace, 265 Mass. 119, 124 (1928); Commonwealth v. Latney, 44 Mass. App. Ct. 423, 425 (1998), here the lack of any other evidence linking the defendant to the Oakham site renders that inference insufficient under the Latimore standard to establish beyond a reasonable doubt that the defendant was guilty of the breaking and entering of that building. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). For the same reason, the evidence is insufficient to establish guilt on the two indictments charging malicious destruction of property at that site. 1 In Commonwealth v. Latney, 44 Mass. App. Ct. at 425 , other evidence in addition to the possession of stolen property (the defendant was captured near the burgled house, the stolen beer *156 was still cold, and the defendant was in possession of every one of the stolen items) linked the defendant directly to the burglary and rendered unlikely contrary inferences (e.g., if he had stumbled on the beer on the street, it would have been warm from the sun). In contrast, here no evidence other than the defendant’s possession of the stolen camcorder linked him to the Oakham site. The other evidence pointed to by the majority is that, one week after the break-in in Oakham, he and Dreslinski were found after hours in another State park in a truck with two screwdrivers on the front seat, in suspicious circumstances. I agree that the evidence was sufficient to support the inference that the defendant (and Dreslinski) intended to use the screwdrivers to commit a burglary and therefore was sufficient to support the defendant’s conviction of possession of burglaripus implements. However, to infer from this that the defendant committed the breaking and entering at Oakham involves an untoward “piling [of] inference upon inference.” Commonwealth v. Ferguson, 384 Mass. 13, 18 (1981). See Commonwealth v. Mandile, 403 Mass. 93, 94 (1988). This evidence is far more attenuated than that in Latney , nor, in contrast to Latney , do the inferences render contrary inferences as to who might have committed the Oakham breaking and entering significantly less likely — for example, either the defendant or Dreslinski (either alone or with another) might have committed the Oakham breaking and entering, and if it was Dreslinski, he could have sold (or otherwise passed along) the camcorder to the defendant; also possible is that another person or persons committed the breaking and entering at Oakham and sold the camcorder to the defendant (perhaps even giving him the idea of attempting to break into State park buildings). As for similarity of method or means, the only similarity is the venue — State parks. There is nothing distinctive about the means of the breaking and entering that is shown to link the defendant, as opposed to someone else, to it. 2 “Convictions may rest entirely or mainly on circumstantial evidence, . . . but ‘no essential ele *157 ment of the crime may rest in surmise, conjecture, or guesswork.’ Commonwealth v. Kelley, 359 Mass. 77, 88 (1971).” Commonwealth v. Walter, 10 Mass. App. Ct. 255, 257 (1980). In sum, there is not sufficient evidence to prove beyond a reasonable doubt the defendant’s guilt of the Oakham breaking and entering. Although the two indictments for malicious destruction of property were placed on file and ordinarily would not be considered on appeal, the error complained of here affects these charges. I would, therefore, set aside the guilty findings and enter judgment for the defendant on both indictments for malicious destruction of property as well as on the indictment for breaking and entering. I agree with the majority that on the indictment charging maliclous destruction of radios at the Oakham facility the guilty finding should be set aside and judgment entered for the defendant because no evidence of damaged radios was presented at trial, i.e., no evidence at all was presented at trial on that charge. The supervisor at the Oakham facility testified that the “door [to that building], the area around the doorknob and where the locking device was damaged. It looked like — I couldn’t tell if it was an axe or a hammer, some object like that. . . was used to smash at it until the door eventually opened.” When stopped in the State park in Douglas, the defendant and Dreslinski were *157 found with screwdrivers, and a prybar was later (after the police questioned Dreslinski) found under a rock on the beach. There was no testimony that the marks on the door to the Oakham building matched the prybar or screwdrivers. Contrast Commonwealth v. Grace, 265 Mass. 119, 120 (1928). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6462125. Public record. Not legal advice.