Commonwealth v. Bankert

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20-P-1299 Appeals Court
COMMONWEALTH vs. STEVEN R. BANKERT.
No. 20-P-1299.
Worcester. April 6, 2023. – August 14, 2023.
Present: Vuono, Rubin, & Englander, JJ.
Unlawful Use of Gas. Gas. Practice, Criminal, Instructions to
jury, Presumptions and burden of proof, New trial.
Evidence, Presumptions and burden of proof, Expert opinion.
Witness, Expert. Constitutional Law, Burden of proof. Due
Process of Law, Burden of proof.
Indictments found and returned in the Superior Court
Department on July 25, 2013.
The cases were tried before Richard T. Tucker, J., and a
motion for a new trial, filed on August 16, 2019, was heard by
David Ricciardone, J.
Steven R. Bankert, pro se.
Gabriel T. Thornton, Assistant Attorney General, for the
Commonwealth.
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
2
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
3
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
1 Under the circumstances, the statutory presumption that
the "business" created the damage was equivalent to a
presumption that the defendant created the damage, as there was
no evidence or argument regarding other persons involved with
the laundromats.
4
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
2The parties stipulated at trial that "[t]he defendant
operat[ed] [the] six laundromats at issue here pursuant to
management agreement/leases."
5
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
3 As one of the Commonwealth's witnesses explained, gas
meters have both a "body" and a "head" or "index." The "body"
is what the gas flows through, and the "head" is a "measuring
device" screwed to the body that "indicates the consumption of
how much gas [one is] using." The "security wire" is attached
to both components and is meant to "prevent tampering."
6
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
4 There was also evidence that gas usage at some of the
laundromats increased briefly upon replacement of some of the
gas meters, before decreasing again, where examinations of the
replacement meters revealed similar signs of damage.
7
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.
5 The defendant objected to the bulk of this testimony, both
prior to trial and at trial, contending that the witnesses were
providing improper expert testimony, and lay opinion testimony
on the "ultimate issue." Although the trial judge granted the
defendant's pretrial motions in limine insofar as they related
to the Commonwealth's witnesses providing "expert opinion
testimony" and using "such language as tampering," the judge
mostly overruled the defendant's trial objections. The
defendant argues these same evidentiary objections on appeal, an
issue we discuss infra.
8
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
9
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 created the
damage with the requisite intent) was not sufficiently strong,
and (2) that the instruction (paragraphs 1-3) resulted in an
6 However, the judge added paragraph 4 of the charge, supra,
in response to the defendant's prior objection to the
instruction.
7 The motion argued, among other things, that the
defendant's trial counsel rendered ineffective assistance
because counsel had (unsuccessfully) sought to withdraw as the
defendant's trial counsel, and in that context (1) had revealed
privileged information to the trial judge, (2) had
misrepresented to the trial judge that the defendant had been
noncommunicative with them, and (3) had not sought the trial
judge's recusal based on the "negative opinion" that the judge
had allegedly developed toward the defendant.
10
impermissible, mandatory rebuttable presumption on an essential
element of the crime.
a. Prima facie evidence designation. Although both
arguments identified above have their source in the
constitutional right to due process, the issues are analytically
distinct. The first issue is whether the prima facie evidence
instruction given in paragraph 1 of the judge's charge, standing
alone, sets forth a lawful permissive inference under
Massachusetts and Federal case law. Paragraph 1 is taken
directly from the statute defining the crime of willful injury
or interference with a gas meter. See G. L. c. 164, § 126.8
Such an instruction must pass a constitutional test -- the jury
may not be instructed that certain facts constitute "prima facie
evidence" of other facts unless there is "a strong, logical
connection between the two [sets of] facts to ensure that the
defendant receives the full benefit of the reasonable doubt
standard." Commonwealth v. Littles, 477 Mass. 382, 386 (2017).
8 General Laws c. 164, § 126, provides, in relevant part:
"The existence of any of the conditions with reference to
meters or attachments described in this section shall be
prima facie evidence that a . . . business entity . . . to
whom such gas is, at the time, being furnished . . . has,
with intent to defraud, created or caused to be created
. . . the condition so existing; provided, however, . . .
that the prima facie evidence referred to in this paragraph
shall not apply to any . . . business entity . . .
furnished with gas for less than thirty-one days . . . ."
11
We pause to consider what is meant by an instruction that
certain facts, if proved, constitute "prima facie evidence" of
another fact -- usually, an element of the crime. Such an
instruction was addressed most recently in Littles. "In
criminal cases in the Commonwealth, when the Legislature
designates 'evidence "A" [to be] prima facie evidence of fact
"B," then, in the absence of competing evidence, the fact finder
is permitted but not required to find "B" beyond a reasonable
doubt'" (emphasis added; citation omitted). Littles, 477 Mass.
at 386. "The designation of prima facie evidence in this
context is 'structurally the same as' a 'permissive inference,'"
which, when used properly, does not "alter the Commonwealth's
substantive burden of proof" (citations omitted). Id. Here,
paragraph 1 of the judge's prima facie evidence instruction told
the jury that if (1) there was "any injury . . . with regard to
a gas meter," then (2) this constituted "prima facie evidence"
that the business to which gas was being supplied (a) created
the damage with (b) the intent to defraud. Standing alone, this
presented the jury with a permissive inference, thereby raising
the question whether there existed a sufficiently "strong,
logical connection between the two [sets of] facts." Id.The Supreme Judicial Court and the United States Supreme
Court have addressed this question on a number of occasions,
with some cases holding that the inferential connection was
12
sufficiently strong, and others holding that it was not. See,
e.g., County Court v. Allen, 442 U.S. 140, 142, 163 (1979)
(statutory instruction that "presence of a firearm in an
automobile [wa]s presumptive evidence of its illegal possession
by all persons [in] the vehicle" was "rational" "as applied to
the facts of th[e] case"); Barnes v. United States, 412 U.S.
837, 838, 845-846 (1973) (not improper to "infer[] from
unexplained possession of recently stolen mail that the
defendant [knew] that it was stolen," where inference was
supported by "evidence," by "common sense," and by
"experience"); Tot v. United States, 319 U.S. 463, 466-468
(1943) ("no reasonable ground for a[n] [inference] that [the]
purchase or procurement [of a gun] was in interstate rather than
in intrastate commerce"). See also Commonwealth v. Pauley, 368
Mass. 286, 291 (1975) (sufficient connection between proof of
registered owner of motor vehicle and inference that such owner
was operating that vehicle at time it avoided toll).
Most recently, in Littles, the Supreme Judicial Court
addressed a statutorily prescribed inference, providing that (1)
"the act of 'making, drawing, uttering or deliver[ing] . . . a
check'" that went unpaid due to insufficient funds constituted
(2) "prima facie evidence of intent to defraud and of knowledge
of insufficient funds," unless (3) "the maker or drawer . . .
paid the holder . . . within two days after receiving notice
13
that such check . . . has not been paid." Littles, 477 Mass. at
385, quoting G. L. c. 266, § 37. The Littles court concluded
that there was not a sufficiently "strong[], rational connection
between a defendant's failure to correct a bad check within two
days of notice and the defendant's knowledge and intent,"
because "'the combination of natural chance and absence from the
evidence of an explanation consistent with innocence' d[id] not
prove the two inferred facts beyond a reasonable doubt"
(citation omitted). Id. at 388. The court went on to conclude,
however, that the error was harmless beyond a reasonable doubt
because "[t]he overwhelming evidence demonstrated that the
defendant knowingly with the intent to defraud . . . wrote
checks that drew funds from a long-closed account." Id. at 391.
Focusing only on paragraph 1 of the judge's instruction, in
this case the statutory "prima facie evidence" instruction the
judge gave satisfied the connection required by the case law.
Admittedly, the standard for evaluating the necessary connection
is elusive in the cases. It has been variously described "as a
'rational connection,' a connection that is 'more likely than
not,' and as a connection that leaves no 'reasonable doubt.'"
Littles, 477 Mass. at 387, quoting Barnes, 412 U.S. at 841-843.
But here the defendant does not make a facial challenge to the
statute's designation of prima facie evidence; rather, his
objection to the instruction comes in the context of the facts
14
of this case. See County Court, 442 U.S. at 162-163 (cases
deciding "validity of permissive statutory presumptions . . .
have rested on an evaluation of the presumption as applied to
the [factual] record" and "[n]one suggests that a court should
pass on the [facial] constitutionality of this kind of
statute"). And under any of the above standards, here there is
a sound connection between fact "A" -- that meters connected to
the defendant's businesses suffered damage -- and facts "B" --
that the defendant created that damage with the intent to
defraud. The inference itself is rational; the meters were on
the property of the business and thus the business had the
access (as well as the motivation to reduce costs).9 And here
the evidence established that multiple meters attached to each
of the defendant's six laundromats were damaged over the course
of his operation, and that at least some of that damage was
relatively rare absent some sort of intentional tampering.
There was no constitutional infirmity in the instruction of
paragraph 1, standing alone.
b. Permissive inference versus mandatory presumption.
That is not the end of the matter, however, because the four
paragraphs of the instruction, in toto, presented the jury with
9 Nor should we lose sight of the fact that the inference
has been directed by the Legislature. See Commonwealth v.
Maloney, 447 Mass. 577, 590 (2006) ("Subject to constitutional
limits . . . the Legislature is free to make such judgments").
15
a mandatory rebuttable presumption, not merely the permissive
inference contemplated by G. L. c. 164, § 126.
The problem of the mandatory (although rebuttable)
presumption has been addressed by the United States Supreme
Court several times, perhaps most notably in Francis v.
Franklin, 471 U.S. 307 (1985). The Court there explained that
"[a] mandatory rebuttable presumption . . . relieves the State
of the affirmative burden of persuasion on [a] presumed
element," and thus violates due process, "by instructing the
jury that it must find the presumed element unless the defendant
persuades the jury not to make such a finding" (emphasis added).
Id. at 317. In Francis, the challenged instruction stated:
"The acts of a person of sound mind and discretion are
presumed to be the product of the person's will, but the
presumption may be rebutted. A person of sound mind and
discretion is presumed to intend the natural and probable
consequences of his acts but the presumption may be
rebutted."
Id. at 315. The Court concluded that the instruction violated
the defendant's due process rights, because it "created an
unconstitutional burden-shifting presumption with respect to the
element of intent." Id. at 318. This because "a reasonable
juror could . . . have viewed" the instruction as "requir[ing]
[them] to infer intent to kill as the natural and probable
consequence of the [defendant's] act of firing [a] gun unless
the defendant persuaded the jury that such an inference was
unwarranted" (citation omitted). Id. at 316-318.
16
The Supreme Judicial Court applied Francis in Commonwealth
v. Medina, 430 Mass. 800 (2000). There, the court held that
"[a] reasonable juror could have understood" the malice
instruction at issue as requiring the jury to presume malice and
improperly "shift[ing] to the defendant the burden of
disproving" same. Id. at 804. The Medina court applied a
"three-step framework" for analyzing errors of this kind.
Commonwealth v. Harris, 101 Mass. App. Ct. 308, 314 (2022).
First, we consider whether the "specific portion of the jury
charge, considered in isolation, could reasonably have been
understood as creating a presumption that relieves the State of
its burden of persuasion on an element of an offense" (citation
omitted). Harris, supra at 314.10 If so, then second, we view
the instruction "'in the context of the charge as a whole' to
determine whether '[o]ther instructions might explain the
particular infirm language' and thereby prevent a reasonable
10 In Medina, the court confirmed that the Massachusetts
standard is "whether a 'reasonable juror could have used the
instruction incorrectly," derived from Francis, and explained
that the standard is more favorable to a defendant than the
current Federal standard of "whether there is a 'reasonable
likelihood' that jurors applied the challenged instruction in a
way that violates the Federal constitution" (emphasis added).
Medina, 430 Mass. at 804 n.4. See Boyde v. California, 494 U.S.
370, 378-380 (1990) (recognizing departure from Francis
standard). See also Estelle v. McGuire, 502 U.S. 62, 72 n.4
(1991) (describing Boyde as "considering and rejecting standards
that required examination of either what a reasonable juror
'could' have done or 'would' have done").
17
juror from applying an unconstitutional presumption" (citation
omitted). Id. Third, if the instruction fails this inquiry, we
may nonetheless affirm if the "error was harmless beyond a
reasonable doubt." Id.As to the first step, here we have little doubt that a
reasonable jury could have understood the prima facie evidence
instruction to constitute a mandatory rebuttable presumption
concerning the source of the meter damage and the defendant's
intent. See Medina, 430 Mass. at 804 & n.4. The error occurs
in paragraphs 2 and 3 of the judge's prima facie evidence
instruction. After the judge gave the instruction from G. L.
c. 164, § 126, in paragraph 1, the judge stated:
(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" (emphasis added).
(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"
(emphasis added).11
These second and third paragraphs were "cast in the
language of command," Francis, 471 U.S. at 316, telling the jury
that they "must consider th[e] conclusion that the business
11 The record does not reveal the source of the instructions
in paragraphs 2 and 3. Neither party requested the
instructions. Although the judge provided the charge to counsel
in written form before he gave it, and the defendant objected,
there was little substantive discussion of paragraphs 2 and 3
during the charge conference.
18
created the existing condition" (emphasis added). The
instruction then indicated to the jury that they were "bound" by
that "conclusion" -- "that the business created the existing
condition" -- and were not "free" to decide otherwise "unless
some evidence which you find believable is introduced to the
contrary." In toto, paragraphs 1 through 3 "indicated to a
reasonable juror that the defendant bore an affirmative burden
of persuasion once the State proved the underlying act giving
rise to the presumption." Francis, supra at 318. The effect,
then, was to "relieve[] the [Commonwealth] of the affirmative
burden of persuasion" with respect to the defendant's causation
of the damage with the requisite intent. Id. at 317.
We next must consider whether the remainder of the charge
explained this language in a way that could have "prevent[ed] a
reasonable juror from applying [the] unconstitutional
presumption." Harris, 101 Mass. App. Ct. at 314. Here there
were other portions of the charge that bore on the question; for
example, the judge instructed the jury on the Commonwealth's
burden of proof and the presumption of innocence, and that
"[p]rima facie evidence does not relieve the [C]ommonwealth of
the burden to prove the charges beyond a reasonable doubt." The
judge also instructed that "[i]t is not up to the defendant to
prove that he is innocent."
19
The case law, however, has not found such general
instructions concerning the prosecution's burden sufficient to
cure the error introduced by a mandatory rebuttable presumption.
In Francis, for example, the jury also had been instructed on
the State's burden of proof, see 471 U.S. at 319-320, and had
specifically been instructed that there was "no burden on the
defendant to prove anything," id. at 329-330 (Powell, J.,
dissenting). The Court nevertheless ruled that such "general
instructions . . . d[id] not dissipate the error," because
"[the] jury could have interpreted the two sets of instructions
[together] as indicating that the presumption was a means by
which proof beyond a reasonable doubt as to intent could be
satisfied" (citation omitted). Id. at 319-320. And in
Commonwealth v. Repoza, 400 Mass. 516, 520, cert. denied, 484
U.S. 935 (1987), the Supreme Judicial Court said that, in light
of Francis, a reviewing court should be looking for "some other
portion of the charge [that] not only contradicts the incorrect
language but, through explanation, harmonizes it with the entire
charge as well." See Harris, 101 Mass. App. Ct. at 321-322.
There was no such harmonization in the charge here.
Because a reasonable juror could have understood the
instruction in a constitutionally infirm manner, our final
inquiry is "whether that error was harmless beyond a reasonable
doubt." Medina, 430 Mass. at 802. There is a two-step
20
framework for addressing this question, set forth in Yates v.
Evatt, 500 U.S. 391 (1991), and applied by our Supreme Judicial
Court in Medina, supra. The first step is to "determine what
evidence the jury actually considered" when it applied the
presumption, because some "presumption[s] so narrow the jury's
focus as to leave it questionable that [the jury] would look to
anything but the evidence establishing the predicate fact . . .
to infer the fact presumed" (citation omitted). Medina, supra
at 803. Here, however, the jury's focus was not so limited;
they were instructed to "consider" any evidence contradicting
that the defendant caused the damage with the requisite intent.
We therefore review all the evidence in evaluating whether the
instruction was harmless. See Yates, supra at 404, 409.
At the second step of the harmless error analysis, we ask
"whether the force of th[at] evidence . . . is so overwhelming
as to leave it beyond a reasonable doubt that the verdict . . .
would have been the same in the absence of the presumption."
Yates, 500 U.S. at 405. We cannot so conclude under the
circumstances here. First, the source of the damage was the
principal contested trial issue. See, e.g., Commonwealth v.
Zezima, 387 Mass. 748, 754-755 (1982) (presumption of malice not
harmless because "malice was . . . the pivotal [trial] issue");
Commonwealth v. Palmer, 386 Mass. 35, 37 (1982) (similar).
Second, the Commonwealth did not offer direct evidence that the
21
defendant caused the damage but rather asked the jury to infer
same. Although the Commonwealth's evidence was certainly very
powerful, nothing directly tied the defendant to the damage,
leaving the defendant with a time-tested jury argument. And the
defendant introduced evidence that the damage could have
occurred in other ways, suggesting that the Commonwealth's
witnesses had not ruled out such alternative causes. See
Commonwealth v. Rembiszewski, 391 Mass. 123, 135 (1984)
(constitutional error in jury charge not harmless where
"Commonwealth presented a case based on circumstantial evidence
which did not compel a conclusion of guilt" and "[t]he defendant
presented evidence that reasonably would have permitted the
[opposite] conclusion"). In light of this competing evidence,
and considering that the jury could have viewed the instruction
to place an affirmative burden on the defendant to disprove his
involvement, we cannot conclude "that the presumption did not
contribute to the verdict rendered." Yates, supra.
Based on the foregoing, the defendant's convictions of
willful injury to or interference with a gas meter cannot stand.
Moreover, given the nature of the erroneous instruction here, we
are constrained to conclude that the larceny convictions also
must be vacated. Cf. Palmer, 386 Mass. at 38 (concluding
similarly). One of the elements of larceny is intent -- that
is, "inten[t] to deprive the owner of the property permanently."
22
Here, the jury were charged that they must conclude that the
defendant damaged the meters "with intent to defraud," "unless
some evidence which you find believable is introduced to the
contrary." Inasmuch as the larceny charges arose out of the
same alleged conduct -- that is, damaging the meters so as to
obtain gas without paying for it -- we cannot say that the
improper presumption did not impact the larceny verdicts.
Accordingly, we vacate the defendant's convictions on both sets
of charges, and remand the matter to the trial court.12
2. New trial issues. Resolving the case as we do, we
touch briefly on issues that may arise in the event of a new
trial; specifically, (1) whether the Commonwealth's lay
witnesses were improperly allowed to testify about "the
operation of, and damage to, the gas meters," and (2) whether
those witnesses offered lay opinion testimony on the "ultimate
issue" that the meters had been "tampered" with.13 On these
points, we note the following principles.
12We decline the defendant's request to reverse his
convictions, rather than to vacate the convictions and remand
the matter for a new trial. The defendant has not challenged
the sufficiency of the evidence, and we have not reversed on
that basis. See Commonwealth v. Sanchez, 485 Mass. 491, 507 &
n.9 (2020). Where the error was that the jury was improperly
instructed on the law, a remand is appropriate. See id. at 506-
507.
13Because we do not anticipate that the ineffective
assistance of counsel issues that the defendant raises will
arise on remand, we do not address them. See note 7, supra.
23
First, the bulk of the testimony from the gas company
employees consisted of their own observations, and witnesses can
of course testify about observed facts. See Commonwealth v.
Huang, 489 Mass. 162, 176 (2022). Second, provided a proper
foundation is established, a witness can testify based on their
experience with a machine or with technology, including what
they have observed about how a machine is used or operates. The
technical nature of an item is not the touchstone for whether
expert testimony is necessary. See, e.g., Commonwealth v.
Bundy, 465 Mass. 538, 546-547 (2013) (expert testimony
concerning video-game system unnecessary). Instead, expert
testimony is ordinarily required when a witness offers an
opinion based on "scientific, technical, or other specialized
knowledge" (citation omitted), Commonwealth v. Gerhardt, 477
Mass. 775, 785 (2017), or when the "subject of the testimony 'is
beyond the common knowledge or understanding of the lay juror'"
(citation omitted), Bundy, supra at 546. See Onofrio v.
Department of Mental Health, 408 Mass. 605, 613 (1990) ("expert
testimony is not a prerequisite to a finding about matters that
are within ordinary human experience"). Third, "[a]n opinion is
not objectionable just because it embraces an ultimate issue,"
Mass. G. Evid. § 704 (2023), as long as the testimony does not
"provid[e] an opinion as to guilt or innocence," Commonwealth v.
Waller, 486 Mass. 72, 74 n.2 (2020).
24
With these principles in mind, it is nonetheless true that
some questions that the Commonwealth posed appeared to call for
opinions based upon technical or specialized knowledge. The
following two are examples:
Q.: "Going back to your visits to the defendant's
laundromats in May 2011, based on what you saw during those
visits, did you see anything on either meter that would
indicate possible tampering with those meters?"
". . ."
Q.: "What if anything happens to a[] [meter] index when
[its] magnet shaft drops down and disengages?"
". . ."
A.: "It can cause the gears to become disengaged,
resulting in less [gas] usage shown on the index."
These questions appear to have crossed the line into calling for
expert opinion. To the extent the Commonwealth attempts to
elicit similar testimony at any new trial, it might avoid these
issues by seeking to qualify its witnesses as experts.
Conclusion. The judgments are vacated, and the verdicts
are set aside. The matter is remanded to the Superior Court for
such further proceedings as may be appropriate.
So ordered.