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Commonwealth v. Biesiot

Appeals Court of Massachusetts, Suffolk

July 19, 2017

COMMONWEALTH
v.
JOHN H. BIESIOT.

          Heard: January 10, 2017.

         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.

          Present: Grainger, Wolohojian, & Neyman, JJ. [1]

          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 Orient Heights Station in the East Boston section of Boston. On February 8, 2007, trains at either the Forest Hills or the Wellington train yard were vandalized with the tags "Wyse" and "D-30." On January 12, 2008, fourteen trolleys at the Reservoir train yard in the Brighton section of Boston were vandalized with the tags "Wyse" and "D-30." On March 16, 2008, a train at the Codman Square train yard was defaced with the tags "Wyse" and "D-30." Finally, on March 15, 2010, a train at the underground Alewife train yard was vandalized with the tag "D-30."

         Through their investigation, Lieutenant O'Loughlin and Detective Kelley learned that the "D-30" and "Wyse" tags were associated with the "Dirty Thirty" crew. Lieutenant O'Loughlin also received a video and still photographs that depicted the defendant spray painting "D-30" on the side of a newspaper box.[5]In June, 2008, O'Loughlin and Kelley executed a search warrant at an apartment in the Allston section of Boston where the defendant purportedly was staying. They found, inter alia, mail in the defendant's name, his name listed on the mailbox for apartment 3, a pair of paint-stained sneakers, a canister with a design containing the word "Wyse, " street maps of Boston, and "assorted graffiti photos, graffiti posters, some books, and the like."

         Criminal complaints issued, charging the defendant with two counts of defacing the Alewife Station property, twelve counts of defacing the Reservoir Station property, one count of defacing the Codman Square property, five counts of defacing the Orient Heights Station property, and two counts of defacing the Forest Hills Station property. The defendant was ultimately convicted of vandalizing trains at the Reservoir, Codman Square, and Alewife Stations, and acquitted of tagging trains at the Orient Heights and Forest Hills Stations.[6] This appeal ensued.

         D ...


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