Appeals court hears challenges to malice and larceny instructions in Hancock case

The Massachusetts Appeals Court heard argument in the appeal of Theodore Hancock’s convictions, focusing on whether evidence supported the malicious-destruction-of-property instruction and whether the trial court erred by not giving an "honest but mistaken belief" larceny instruction.

Defense counsel David Osborne told the panel that the single act of kicking a door to retrieve property (a television set) did not show the statutorily required malice — a state of mind of cruelty, hostility or revenge. "Even accepting all the inferences in the light most favorable to the Commonwealth, the evidence is not sufficient that act of kicking the door was malicious," Osborne argued, pointing to testimony that the jury was instructed to ignore certain statements about who ended the relationship between the parties.

Assistant District Attorney Melissa Johnson countered that the record showed hostility and that the victim had warned the court she feared an ugly confrontation and had her children present. Johnson also addressed the larceny claim: she maintained the defendant failed to provide the Commonwealth with pretrial notice under Rule 14 when the defense theory included a claim akin to ownership or a good-faith mistake about the phone’s identity. "The idea that this defendant actually thought this was his phone that the victim was using to record him is just preposterous," Johnson told the panel.

Argument also reviewed the trial record’s sequence of events: the defendant’s entry into a multi-door building, a second (interior) door that was substantially damaged, testimony that the defendant had previously forced entry for unrelated reasons (locking keys in the unit), and an audiovisual recording used at trial. Counsel debated whether the evidence allowed a jury to infer malice given contextual facts (recent breakup, presence of children, the defendant’s conduct in the building) and whether the larceny instruction should have been given sua sponte.

The court also discussed statutory definitions referenced by counsel in argument — including factors used in abuse/domestic statutes (209A and related provisions) that bear on how courts evaluate relationship context — and several appellate cases the parties cited as guiding precedent. The case was submitted following argument; the panel’s ruling will determine whether the convictions and jury instructions must be revisited.