Mass. high court hears argument over whether prosecutors can raise new intent theories on appeal in breaking-and-entering case

At oral argument in SJC13813, appellate counsel Brad Baranowski told the court the key question is whether the Commonwealth may "raise new theories of intent on appeal" to uphold a conviction for breaking and entering. "The Commonwealth cannot do so," Baranowski said, urging the court to apply Commonwealth v. Lee and related precedent that appellate arguments must be rooted in theories presented at trial.

The Commonwealth, represented by Ellen Lazar (who opened the argument after counsel for the appellant), asked the court to affirm the conviction for breaking and entering with intent to commit a misdemeanor, arguing the record supported either larceny or criminal trespass as the intended crime. "In Rogan the court explicitly said that the case can go to the jury on an unspecified misdemeanor or felony," Lazar told the justices and cited Hobbs, Randolph and Costello as longstanding authority allowing variance so long as the defendant is not prejudiced.

Much of the argument turned on the interplay between two lines of cases. Baranowski said Rogan should be distinguished or limited because it arose in the context of a denial of a bill of particulars and, in his view, contains dicta that cannot be read to allow prosecutors to expand factual theories on appeal without notice. He warned that permitting new theories on appeal would "widen" issues instead of narrowing them and could undermine defendants' fairness and notice.

The Commonwealth countered that the identity of the intended underlying crime is "surplusage" under the cited cases and the controlling statutes governing variance; courts may, when supported by the evidence, instruct a jury (or a judge in a bench trial) on other crimes so long as the essential elements of the charged offense have been proven and the defendant's ability to present a defense is not prejudiced. Lazar pointed to pretrial materials and police reports as sources that put a defendant on notice of the allegations, and she said the appeals court already found evidence supporting a trespass theory.

Justices questioned both sides on practical consequences: whether a bench-trial posture (where the judge instructs himself and there is no charge conference), the absence of a bill of particulars, or a sparse trial transcript could meaningfully deprive a defendant of notice that an entirely different underlying misdemeanor was at issue. Baranowski emphasized the appellate-harm point: the prejudice often manifests on appeal when an appellate tribunal affirms on a theory that was not squarely litigated below.

Both sides agreed there are limits—courts have refused variance where the change in theory would alter the elements of the crime or otherwise prejudice the defendant's defense. The argument closed without a decision; the court will later issue an opinion resolving whether and how Rogan and the line of variance cases apply to this record.

Next steps: the court has heard oral argument and will take the matter under advisement before issuing a written opinion.