Opinion
No. 15–P–639.
12-16-2016
COMMONWEALTH v. Kevin UPSHAW.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant raises various claims of error on appeal from his convictions on charges of uttering a false document and perjury by false statement. We discern no cause to disturb the judgments, and address the defendant's various claims in turn.
Counsel for the defendant presented four of his brief's appellate arguments pursuant to Commonwealth v. Moffett, 383 Mass. 201, 216–217 (1981). The defendant also filed a separate Moffett brief, see id. at 208–209, claiming additional errors.
1. Sufficiency of the evidence. The defendant claims that his motion for a required finding of not guilty at the close of the Commonwealth's case was improperly denied. We review to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). We discern no error.
The defendant specifically challenges the relevance of evidence that the $134,866.57 balance in the Iowa bank account for which he filed an abandoned property claim was identical to the sum listed for that account in a purported trust instrument he submitted as evidence of his claim. The trust instrument itself purported to have been executed seven years before the closure of the relevant bank account, which accrued interest and was charged fees in the interim. The defendant argues that in order for the identity of the balances to have evidentiary significance, the Commonwealth was required to submit accompanying statistical evidence or expert testimony. Contrary to the defendant's argument, no such accompanying evidence was required to evaluate this fact, because the usual factors affecting bank account balances can reasonably be expected to be within the common knowledge and experience of jurors. See Commonwealth v. Ellison, 5 Mass.App.Ct. 862, 862 (1977). The jury were permitted to infer that the likelihood that the balance in an interest-bearing account, on which fees were charged, would be identical on two dates seven years apart was vanishingly small, and thus that the trust was falsely created for the purposes of the claim, using a balance publicly listed on the Iowa abandoned property Web site.
Bank records detailing activity in the account were unavailable for the date when the trust was purported to have been executed, and for the approximately four years thereafter.
In his Moffett brief, the defendant argues a substantially similar point, claiming that the identity of the two balances could not have been probative without the admission of bank records nearer the execution date of the purported trust instrument.
The defendant argues in the alternative that the records were inadmissible without accompanying statistical evidence. This argument lacks merit for the same reason.
The jury further could have relied on additional evidence in support of this inference, including an internal inconsistency in the date of the trust, the ease of obtaining the information necessary to forge the trust, and the defendant's efforts to claim abandoned property in Massachusetts using another trust purporting him to be heir to a substantial sum of money, discussed infra. The defendant's motion for a required finding was properly denied.
Equally unavailing is the defendant's claim that the forged trust at issue could not give rise to the charge of uttering a false document, pursuant to G.L. c. 267, § 5, because a trust is not a writing specifically enumerated in §§ 1–4 of G.L. c. 267. The listing of enumerated documents in G.L. c. 267, § 1, as amended through St.1986, c. 557, § 190, encompasses "any evidence or muniment of title to property." Thus, "any document that is either evidence of title to property, or a muniment of title to property, may be the subject of forgery and uttering under the statute" (footnote omitted). Commonwealth v. Murphy, 59 Mass.App.Ct. 571, 578 (2003). The trust instrument, which the defendant used to establish title to the property at issue, fell within the ambit of the statute. The defendant's contention that the statute applies only to situations "where commercial or mercantile documents are involved," is both advanced without supporting authority and belied by precedent.
Because we conclude that the trust instrument fell within the uttering statute, we need not reach his argument that the indictment did not allege common law uttering.
See, e.g., Commonwealth v. O'Connell, 438 Mass. 658 (2003) (checks owned by defendant's father); Commonwealth v. Katsirubis, 45 Mass.App.Ct. 132 (1998) (nomination papers for candidate for sheriff); Commonwealth v. Perez, 89 Mass.App.Ct. 51 (2016) (bank withdrawal slip for personal account owned by elderly woman).
2. Pattern evidence. The defendant challenges the admission over his objection of evidence of his prior Massachusetts abandoned property claim, as well as a printout of a Connecticut abandoned property listing and legal books found in his home.
Evidence of the denial of the claim was excluded at the defendant's request.
Though evidence of prior bad acts may not be introduced for the purpose of demonstrating a defendant's bad character or propensity to commit the charged offense, such evidence may be admissible to demonstrate "a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v.. Helfant, 398 Mass. 214, 224 (1986). "Whether evidence of prior bad acts is relevant, and whether the probative value of such evidence is outweighed by its potential for unfair prejudice, are determinations committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent ‘palpable error.’ " Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting from Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). Assuming without deciding that the challenged evidence constituted "bad acts," the judge did not abuse his discretion in admitting it.
In both the charged offense and the prior Massachusetts claim, the defendant submitted trust documents to support his claim to be the heir to substantial abandoned property. In each trust document, the defendant was purported to be both trustee and beneficiary of the trust. Notwithstanding the largely immaterial differences in the two trusts and the locations of the claims, this similarity provided relevant evidence of the defendant's common pattern of operation as well as his knowledge of and familiarity with both trust documents and abandoned property listings. The Connecticut abandoned property listings and legal books found in the defendant's home were similarly probative as to his pattern of conduct and his knowledge of the means necessary to commit the offense.
The defendant's argument that the relevance of the Massachusetts claim "evaporated" without evidence of its denial is unavailing. The contents of the defendant's submission provide the relevance of the claim. The decision of the State Treasurer's Office as to the disposition of the claim is minimally relevant, if at all. Exclusion of evidence of the denial of the claim, however, served to reduce any possible prejudice arising from the evidence.
Finally, the judge mitigated any possible unfair prejudice by giving the jury careful limiting instructions in the final charge, which they are presumed to have followed. See Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012).
3. Jurisdiction. The defendant argues that the indictment for uttering should have been dismissed before trial because Massachusetts did not have subject matter jurisdiction over the offense. The argument is without merit.
Commission of a single element of a criminal offense within Massachusetts can bring the offense within the proper jurisdiction of Massachusetts courts. See Commonwealth v. Carroll, 360 Mass. 580, 585 (1971). To commit the offense of uttering, the Commonwealth must show that the defendant "(1) offer[ed] as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud." Commonwealth v. O'Connell, 438 Mass. 658, 664 n.9 (2003), quoting from Commonwealth v. Levin, 11 Mass.App.Ct. 482, 496 (1981).
Here, the defendant mailed the forged trust from Massachusetts, and listed a Massachusetts address on his claim documents. His signatures on documents including his claim form were notarized in Massachusetts. Based on this evidence, it would be reasonable to infer that the purported trust instrument itself was executed in Massachusetts (albeit by forgery), and essentially, that all of the defendant's activities with regard to the Iowa abandoned property claim were conducted in Massachusetts. Thus, each of the elements of the offense could reasonably be found to have occurred in Massachusetts, and jurisdiction was proper.
The defendant specifically claims that the "offering" element did not occur in Massachusetts, because the destination of the trust document was Iowa, and there was no indication that the trust was ever viewed in Massachusetts. Even were this proposition correct, jurisdiction would regardless lie in Massachusetts based on the other elements of the offense. See Carroll, 360 Mass. at 585. Nonetheless, we concur with the judge, who found that the trust was offered as genuine in Massachusetts, when the defendant
The defendant makes an essentially identical argument in his Moffett brief. For the reasons discussed herein, this argument lacks merit.
"put [it] in the hands of a commercial third-party nationwide delivery service for sure and direct presentment to and within the State of Iowa. [The defendant's] actions were complete at that time, and his opportunity to abandon the alleged scheme was over."
4. Additional claims. The defendant contends, without authority, that prosecution of the defendant for uttering was prohibited without waiver from Federal authorities, because the defendant's conduct could have been charged as Federal mail fraud. He is incorrect. That a crime may be federally prosecuted "does not, without more, preempt prosecution by the Commonwealth for the same conduct." Commonwealth v. Labadie, 467 Mass. 81, 91 (2014). Here, 18 U.S.C. § 1341 (2012) contains no preemption provision, nor does the statute conflict in any way with G.L. c. 267, § 5.
The defendant finally argues that his convictions were in violation of Iowa trust law. His argument is fatally flawed, however, in that it mistakenly presupposes the validity and legitimacy of the forged trust. Because the issue at trial was whether the trust was forged, the Iowa statutes cited by the defendant have no relevance.
Judgments affirmed.