Commonwealth v. SmithCommonwealth v. Smith
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1. In relevant part, the complaint allegеd that on May 20, 1982, Smith did “wilfully dig up turf from the land owned or controlled by ADAMS FAIRWAY REALTY CO., in violation of Chapter 266,
Smith’s first point focuses on the words “or controlled” in the comрlaint. These words, he maintains, allowed conviction on proof that the land in question was merely controlled rather than owned by another. The plain language of
The defendant further contends that the complaint, in order to state an offense, had to allege that he аcted “without the license of the owner” of the property. The Commonwealth argues, based on an analysis of the history of
We need not decide whether either argument pressed by the Commonwealth is correct because even assuming that a lack of license is a necessary element of the offense the complaint is sufficient.
2. The defendant seasonably moved for a required finding of not guilty on the sole ground that the Commonwealth’s evidence was insufficient to establish that he had a specific intent to dig up the turf. He аrgues that the evidence equally suggests that he harbored only a general intent to commit a trespass and that the damage was the product of accidental or rеckless conduct incidental to that intent.
We agree with Smith that conviction of this crime under
A defendant’s intent, like other mens rea requirements, may be established circumstantially. See Commonwealth v. Lussier, 364 Mass. 414, 420-422 (1973); Commonwealth v. Welch, 16 Mass. App. Ct. 271, 275 (1983). There was еvidence that Smith drove his van on the golf course for over 300 yards, digging up ninety-six feet of turf in the process. An Adams police officer testified that clumps of turf were found which were created by the spinning of the van’s tires. Another witness expressed the opinion that certain doughnut shaped marks were caused by the driving of the van twice around in a circulаr fashion. In addition, the jury could infer that Smith, after being expressly told by the police to leave the van *920on the golf course, purposely disobeyed this instruction and drove his van back over the golf course while en route to his home, causing further damage to the land. We conclude, under the guidance of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), that the jury “might properly draw inferences, nоt too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences” that the mental element of the crime had been proved beyond a reasonable doubt. Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933).
3. In connection with the element of wilfulness, the judge, relying on Commonwealth v. Welansky, 316 Mass. 383, 401 (1944), instructed the jury as follows: “If you are convinced beyond a reasonable doubt that the defendant intentionally drove the van on the golf course and thereby dug up turf; and that this was done with a wanton or reckless disregard for the consequences of the act; then the defendant should be found guilty regardless of whether he actually had the intent to cause turf to be dug up.” This instruction wаs the subject of a proper objection and is the only instruction challenged on appeal.
It is true that both wilful conduct and wanton and reckless conduct stem from conduct which is intended. See Commonwealth v. Welansky, supra at 397-399. However, wilful conduct clearly involves “something different from wanton or reckless conduct, even though the legal result is the same.” Id. at 398. As we said in disсussing a malicious damage statute, “[t]he word ‘wilful’ means intentional and by design in contrast to that which is thoughtless or accidental.” Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983). The essence of the distinction appears tо lie in the fact that a wilful actor intends both his conduct and the resulting harm whereas a wanton or reckless actor intends his conduct but not necessarily the resulting harm. As previously noted, to convict of wilfully digging up turf under
4. There is an additiоnal issue which is likely to arise if Smith is retried. The question concerns the admissibility of lay opinion testimony concerning the cause of the damage to the turf. At trial, the investigating poliсe officer and the superintendent of the golf course were allowed to express opinions, over objection, as to the cause of the marks and “clumps” оn one fairway, and the cause of the circular “doughnut” marks on another fairway. Smith argues that it was error to allow these opinions.
The general rule is that “opinion evidеnce from one having no special qualifications by experience or study is not admissible.” Noyes v. Noyes, *921224 Mass. 125, 129 (1916). One well-established exception to this rule exists for shorthand expressions of fаcts perceived by common observation which cannot be reproduced or described to the jury precisely as they originally appeared to the witness. Ibid. See also Commonwealth v. Sturtivant, 117 Mass. 122, 133 (1875). This еxception, based upon the practical necessity that such evidence would otherwise be difficult or impossible to obtain, requires (a) that the subject matter of thе observations cannot be conveyed to the jury precisely as it appeared to the witness at the time of the event; (b) that the opinion convey a definite сonception of facts; (c) that the witness has personal knowledge of the foundation facts; and (d) that the opinion is one which lay persons in general are cаpable of forming. See id. at 137-138; Liacos, Handbook of Massachusetts Evidence 100 (5th ed. 1981). Examples of the exception can be found in Commonwealth v. Cataldo, 326 Mass. 373, 376 (1950), and in Commonwealth v. LePage, 352 Mass. 403, 418 (1967).
The testimony of both witnesses as to the cause of the damage to the fairways met all the foundation requirements. It was within the judge’s discretion to admit the testimony.
Judgment reversed.
Verdict set aside.