Heard: January 29, 2016.
received and sworn to in the Dorchester Division of the
Boston Municipal Court Department on January 2, 2014.
case was tried before Jonathan R. Tynes, J.
Bauer for the defendant.
Kathryn Leary, Assistant District Attorney, for the
Present: Grainger, Hanlon, & Agnes, JJ.
defendant, Nakia Chambers, appeals from her conviction of the
misdemeanor offense of wilful and malicious destruction of
property with a value equal to or less than $250, in
violation of G. L. c. 266, § 127. We agree with the
defendant that it was error to deny her motion for a required
finding at the close of the Commonwealth's case but, in
the unusual circumstances of this case, we conclude that
because the jury did not convict her of the offense as
charged, instead returning a verdict on a lesser included
offense that was supported by the evidence, the error was
rendered harmless beyond a reasonable doubt. See
Commonwealth v. Lang, 24
Mass.App.Ct. 253, 259 (1987). In view of the confusion that
is evident in the record about the differentiation between
the felony and the misdemeanor offenses set forth in G. L. c.
266, § 127, and the malice element required under two of
the four offenses set forth in § 127, we take this
opportunity to review the statute and the developments in the
the evidence in the light most favorable to the Commonwealth,
the jury were warranted in finding the following facts. At
the time of the events, the defendant resided in the
third-floor apartment of 111 Fuller Street in the Dorchester
section of Boston. Mary Louise Brown and her daughter lived
in the first-floor apartment, which they rented from the
property owner, a bank. Brown and the defendant had a hostile
relationship due to disagreements regarding responsibility
for trash collection in the building. On the morning of
December 17, 2013, Brown's vehicle was parked temporarily
at the base of the driveway to 111 Fuller Street, blocking
the exit to the street. The defendant's vehicle was in
the driveway, so she asked for Brown to move her vehicle out
of the way to allow the defendant to access the street.
Brown, who was in her vehicle, said that she would move as
soon as her daughter (who was inside the apartment) finished
getting ready for work. The defendant, who had by then exited
her vehicle, began cursing at Brown and kicking the door to
the first-floor apartment. A few minutes later, the police
arrived and asked Brown to move her vehicle. The defendant
spat on Brown's car as she moved it. After the defendant
had kicked the door, "the wood [of the doorframe] was
completely shattered" and the door could not be locked.
It took several days before the door could be repaired. While
the Browns did not personally pay to repair the door, there
was no evidence offered by the Commonwealth as to the cost of
defendant was charged with the felony offense of malicious
destruction of property with a value more than $250.
for required finding of not guilty and charge
close of the Commonwealth's case, the defendant moved for
a required finding of not guilty, contending that the
Commonwealth failed to present evidence that the damage to
the property was more than $250, and failed to meet its
burden to prove that she had acted with malice toward the
owner of the property. The motion was denied. The defendant
did not present any evidence. During the ensuing discussion
about the jury instructions, the judge acknowledged that
"there's no evidence of the value of the property,
so ... I think it can be considered on the lesser [included
offense], . . . it'll just have to be the misdemeanor
consideration. ... I don't think it's an essential
element in terms of the proof of the
offense." He further stated to counsel that he would
include in the instruction that "[the Commonwealth has]
to prove that it was either over $250 or under
$250." The defendant objected, arguing that the
Commonwealth failed to sustain its burden on the crime
charged, the felony count.
judge instructed, in part, as follows:
"In order to prove the defendant guilty of this offense,
the Commonwealth must prove four things beyond a reasonable
doubt. First, that the defendant injured or destroyed the
personal property of another. Second, that the defendant did
so willfully. And third, that the defendant did so with
malice. And fourth, that the amount of damage inflicted to
the property was more than $250 or less than $250. . . .
"An act is done with malice if it is done out of
cruelty, hostility, or revenge. To act with malice, one must
. . . act not only deliberately, but out of hostility toward
the owner of the property. This does not require that the
person committing this offense knew the identity of the
owner, but it does require that she was hostile toward the
owner, whoever, that was.
"If you determine that the Commonwealth has proved
beyond a reasonable doubt that the defendant is guilty of
willful and malicious destruction of property, you must go on
to determine whether the Commonwealth has also proved beyond
a reasonable doubt that the reasonable cost of repair of the
damaged property, or the ...