Commonwealth v. Bankert

103 Mass.App.Ct. 107

217 N.E.3d 611

COMMONWEALTH

v.Steven R. BANKERT.

No. 20-P-1299

Appeals Court of Massachusetts, Worcester.

Argued April 6, 2023

Decided August 14, 2023

Steven R. Bankert, pro se.

Gabriel T. Thornton, Assistant Attorney General, for the Commonwealth.

Present: Vuono, Rubin, & Englander, JJ.

ENGLANDER, J.

After a jury trial in the Superior Court, the defendant was convicted on ten indictments charging him with willful injury to or interference with a gas meter, G. L. c. 164, § 126, and six indictments charging him with larceny of property valued at over $250, G. L. c. 266, § 30. Both sets of convictions arose from the discovery of damaged gas meters at laundromats operated by the defendant; the Commonwealth's theory at trial was that the defendant had caused the damage to avoid paying for the full amount of gas that the laundromats used.

On appeal, the defendant primarily challenges a jury instruction that stated that if the Commonwealth proved that there was a damaged gas meter at the defendant's business (and the business had been receiving gas for thirty-one days or more), this constituted "prima facie evidence" that the business had created the damage, with the intent to defraud. The defendant argues that the instruction violated his due process rights by altering the Commonwealth's burden of proving each element of the crime. Although a portion of the judge's prima facie evidence instruction was taken directly from G. L. c. 164, § 126, the judge went on to instruct the jury that they "must consider th[e] conclusion that the business created the existing condition," but that they were "not bound by that conclusion" "if believable evidence to the contrary ha[d] been introduced."

We agree that the instruction given here, in toto, impermissibly shifted the burden of proof as to essential and contested elements of the crime. A reasonable jury could have understood the instruction as requiring them to conclude, upon proof that the gas meters had been damaged, that the defendant's business (under the circumstances, the defendant)¹ (1) caused the damage (2) with the requisite intent, unless the defendant presented "believable" contrary evidence. Although other portions of the charge correctly instructed the jury on the Commonwealth's burden of proof and also emphasized that the defendant was presumed innocent, under the governing case law those additional instructions cannot be found to have sufficiently neutralized the error. Furthermore, although the Commonwealth's evidence was strong, we cannot conclude that the error was harmless beyond a reasonable doubt; the pivotal issue at trial was whether the damage was caused by the defendant, or some other natural or unnatural cause, and the instruction told the jury to "conclude" that the defendant had caused it. Although this mandatory presumption was rebuttable by "believable evidence to the contrary," we cannot say that the shifting of the burden of proof did not play a role in the jury's verdicts.

The defendant also contends that the Commonwealth's lay witnesses offered improper expert opinion testimony. Because these evidentiary issues could well arise in any retrial, we address them briefly at the end of this opinion.

Background. We summarize the facts the jury could have found, reserving some details for later discussion. The defendant operated six laundromats in four different locations: one in Lawrence, two in Attleboro, one in Brockton, and two in Worcester.² The defendant was responsible for the utilities at each location. Columbia Gas (Columbia) furnished gas to the Lawrence location, the two Attleboro locations, and the Brockton location. Another company, NStar, serviced the two Worcester locations. Gas usage was measured by gas meters located at each of the six sites.

In July 2013, a grand jury returned twenty-two indictments against the defendant. As relevant here, ten of the indictments charged the defendant with willful injury to or interference with a gas meter, and six charged him with larceny over $250. As indicated, the Commonwealth's theory was that the defendant damaged meters at each of the six laundromats, in order to decrease his gas costs. In doing so, the defendant also allegedly committed larceny, by obtaining gas without paying for it. The Commonwealth's evidence was circumstantial; it sought to prove its case by pointing to (1) the similar and uncommon nature of the damage to the meters, (2) decreases in measured gas usage that corresponded to the time periods when the defendant was managing the locations, and (3) the defendant's motive to decrease his gas costs.

For example, witnesses testified that Columbia replaced gas meters at the defendant's Lawrence laundromat three times over the course of the defendant's operation, which lasted from February of 2009 to May of 2011. Each of the three replacements occurred because the meters were registering lower than expected gas usage. An inspection of the meter replaced in May of 2011 revealed damage to what is known as the "security wire," as well as missing and misplaced screws, and damaged or missing components within the so-called meter "head."³ There was similar testimony concerning gas usage histories and meter replacements at the defendant's other laundromats. Specifically, there was testimony establishing that the meters at each laundromat were replaced multiple times during the defendant's operation, and that the replacements generally occurred because the meters were registering low gas usage, or no gas usage at all. The evidence also tended to show that several of the meters removed from the defendant's other laundromats were damaged in ways similar, but not identical, to the meter from the Lawrence location. For instance, multiple meters were missing their security wires, had damaged or misplaced screws, or contained damaged components within the meter head (or were missing components altogether).⁴

To establish the above, the Commonwealth called several Columbia and NStar employees who had either inspected the laundromats and gas meters at issue or were familiar with the gas usage and billing histories of the laundromats. The witnesses included, for example, two employees who installed, inspected, and serviced gas meters. These witnesses testified principally about their own observations, including their observations concerning damage to the meters. Although the witnesses were not proffered as experts, they also testified (1) about gas meters generally, including the components of the meters and their operation, (2) that, in the witnesses’ experience, the types of damage at issue were not particularly common, and (3) that some of the damage could have resulted in erroneously low usage readings.⁵

The defendant's trial defense focused on the lack of direct proof that he had caused the damage. On cross-examination, for example, defense counsel elicited concessions that the meters were not all damaged in the same way; that some of the damage was not uncommon; and that the gas companies did not explore whether they had installed the meters correctly. The defendant's sole witness, a forensic engineer and accident reconstruction expert, also testified about potential alternative causes of the damage, including (1) debris in the meter system, (2) the meters being improperly sized for the locations, or (3) what the witness explained as "impulse loading." The defendant's expert also testified that Columbia and NStar did not investigate the possible causes that he identified, and that neither company maintained the meters according to manufacturer recommendations.

At the close of evidence, the judge instructed the jury on the elements of willful injury to or interference with a gas meter, as well as the elements of larceny. As to the gas meter injury charges, the judge gave the prima facie evidence charge that is at issue here. We have numbered the paragraphs for ease of reference:

(1) "The existence of any injury, disconnection, removal, interference with regard to a gas meter or attachment shall be prima facie evidence that a commercial or industrial business to which such gas is at the time being furnished by such meter or attachment for thirty-one days or more has, with intent to defraud, created the conditions so existing."

(2) "By ‘prima facie evidence’, we mean, first, that you must consider this conclusion that the business created the existing condition unless some evidence which you find believable is introduced to the contrary."

(3) "Secondly, if believable evidence to the contrary has been introduced, then you are not bound by that conclusion and you are free to make your own decision. However, you may consider such evidence, give it whatever weight you feel is appropriate in your deliberations; and in reaching a verdict, you may take it into account as you see fit, along with all the other evidence in this case, and any reasonable inferences that you draw from the evidence."

(4) "Prima facie evidence does not relieve the [C]ommonwealth of the burden to prove the charges beyond a reasonable doubt."

Defense counsel objected, arguing that the instruction "improperly shift[ed] the burden toward the defendant." The judge did not rule on the objection, and the jury were sent to deliberate.⁶

The jury returned guilty verdicts on all counts, and the defendant timely appealed. While that appeal was pending, the defendant filed a motion for a new trial, claiming ineffective assistance of his trial counsel, and appellate proceedings were stayed pending disposition of that motion.⁷ The defendant's motion was denied, the defendant appealed, and his two appeals were consolidated for our consideration.

Discussion. 1. Jury instruction. The defendant attacks the prima facie evidence instruction as violative of due process, claiming (1) that the connection between proof of the initial fact (damage to meters) and the facts that the jury were allowed to infer therefrom (that the defendant...