Opinion
16-P-194
02-09-2017
COMMONWEALTH v. David A. HENSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant was convicted of larceny over $250 by false pretence, G. L. c. 266, § 30(1), which requires proof beyond a reasonable doubt that "(1) a false statement of fact was made; (2) the defendant knew or believed that the statement was false when he made it; (3) the defendant intended that the person to whom he made the false statement would rely on it; and (4) the person to whom the false statement was made did rely on it and, consequently, parted with property." Commonwealth v. Mills , 436 Mass. 387, 396-397 (2002), citing Commonwealth v. Leonard , 352 Mass. 636, 644-645 (1967). He argues on appeal that the evidence was insufficient to prove the first two elements of the crime. We agree, and accordingly reverse.
We recite the facts, together with the reasonable inferences to be drawn from them, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore , 378 Mass. 671, 677-678 (1979). On August 19, 2014, the defendant, a contractor who had several active projects in the neighborhood, agreed to perform certain repairs on a residential property and, in exchange for the homeowners' agreement to pay fifty percent of the value of the contract upfront, stated he would begin work the next day. The defendant promptly deposited the homeowners' checks, but did not return to the premises for a couple of weeks. What work he did was episodic, poor, and incomplete. The homeowners contacted the defendant daily, but he would put them off saying that he "just had to finish up a little something on another job" before performing his agreement with them. During that period, the homeowners observed the defendant working on other homes in the neighborhood. At one point, the defendant offered to perform some additional work in exchange for $550, stating that he needed the money to pay laborers waiting in his truck to begin work. In October, 2014, after learning through a relative that the defendant had outstanding warrants in Pennsylvania, the homeowners demanded a partial refund. No further communication between the parties occurred. The work was never completed.
There was no start or completion date specified in the written agreement, which was in the form of an invoice.
A fair inference from this fact is that the defendant was experiencing a cash flow problem at that time.
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" ‘A false pretense may be made by implication as well as by verbal declaration,’ and it ‘may consist of an act, symbol, or token calculated to deceive.’ Commonwealth v. Reske , 43 Mass. App. Ct. 522, 525-526 (1997). But ‘[t]he pretence must relate to past events. Any representation or assurance in relation to a future transaction, may be a promise or covenant or warranty, but cannot amount to a statutory false pretence.’ Commonwealth v. Drew , 19 Pick. 179, 185 (1837)." Commonwealth v. Occhiuto , 88 Mass. App. Ct. 489, 497. "A mere failure to fulfil a promise does not constitute a misrepresentation." Commonwealth v. Cheromcka , 66 Mass. App. Ct. 771, 782 (2006). That said, "[a]lthough a promise of future performance alone cannot constitute a false statement of fact for purposes of the larceny statute, it can do so if it is accompanied by a false statement of past fact, whether express or implied." Occhiuto , supra at 500.
Here, the Commonwealth's theory was that the defendant falsely promised to begin work the following day in exchange for receiving an upfront deposit of fifty percent of the value of the contract. There was proof of a future promise; there was, however, no proof of a false statement of past fact, whether express or implied.
As to the second element, Commonwealth v. Long , 90 Mass. App. Ct. 696, 700 (2016), governs both the analysis and outcome of this case. As in Long , the issue is the sufficiency of the evidence of the defendant's intent to defraud, which rests on whether the defendant's representations were false at the time he made them. " ‘A defendant ... cannot be convicted of larceny by false pretenses absent proof of an intention to deprive at the time of the representation.’ Cheromcka , supra .... ‘While deception as to a person's present intention to perform a promise may be the basis of a conviction of larceny by false pretenses, such deception cannot be inferred from the mere nonperformance of the promise.’ Commonwealth v. True , 16 Mass. App. Ct. 709, 711 (1983) (citations omitted).... Therefore, ‘we must look to see what evidence, other than the defendant's failure to perform, was elicited to show that he anticipated that he would not perform his promise’ (emphasis supplied). [ Id .] at 712." Long , supra . Here, there was no proof that—at the time of entering into the contract—the defendant neither could nor would perform.
Judgment reversed .
Finding set aside .
Judgment for defendant .