Heard: January 10, 2017.
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.
cases were tried before David T. Donnelly, J.
Alan Curhan for the defendant.
Nicholas Brandt, Assistant District Attorney, for the
Present: Grainger, Wolohojian, & Neyman, JJ.
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. We affirm in part
and reverse in part.
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." 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
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. 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
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.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."
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. This appeal ensued.