Opinion
14-P-1195
06-03-2015
COMMONWEALTH v. MELQUIADES P. CABRERA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions of larceny over $250 and forgery, the defendant challenges the sufficiency of the evidence supporting the charges. We agree that the evidence was insufficient, and reverse the convictions.
Larceny over $250. As a threshold matter, the Commonwealth concedes that the evidence was insufficient to establish the value of property stolen from the victim. In particular, the Commonwealth presented no evidence, by testimony or otherwise, concerning the amount of the check drawn against the victim's account and presented by the defendant to a bank teller for cash. The Commonwealth contends that the evidence, viewed in a light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), nonetheless was sufficient to establish the lesser included offense of larceny. To the contrary, the record is devoid of any evidence adequate to establish, or to permit a reasonable inference, how the check drawn against the victim's account came to be in the defendant's possession. The record contains no evidence sufficient to establish that the defendant knew or should have known that the check had been stolen or forged by anyone, much less that he had stolen it.
Forgery. For similar reasons, the record is insufficient to support the charge of forgery. Though the record is sufficient to support a conclusion that the check was forged, nothing in the record establishes that the defendant forged it.
Conclusion. The judgments are reversed, and the verdicts are set aside. Judgments shall enter for the defendant.
So ordered.
By the Court (Green, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 3, 2015.