Opinion
No. 11–P–229.
2013-06-14
COMMONWEALTH v. Michael A. BRITT.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions in a jury-waived trial on two counts of larceny over $250, G.L. c. 266, § 30, and two counts of uttering a false check, G.L. c. 267, § 5.
The defendant argues that the evidence was insufficient to identify him as the perpetrator, and also that the evidence was insufficient to show intent for the larceny convictions and intent and knowledge for the uttering convictions. We affirm.
The judge acquitted the defendant on two counts of forgery of a check, G.L. c. 267, § 1.
Standard of review. “We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt.” Commonwealth v. Rabb, 70 Mass.App.Ct. 194, 208–209 (2007). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Identity. The first issue raised by the defendant is whether the evidence was legally sufficient to establish that the defendant was in fact the person who negotiated the bad checks. We conclude that it was.
The defendant did not move at trial for required findings of not guilty, but “findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867–868 (1986).
The defendant argues that the Commonwealth failed to meet its burden because, inter alia, there were no eyewitnesses to identify the defendant, there were issues with the bank security photographs,
and there was no evidence regarding the identification card used to complete the transaction. But in discussing these evidentiary shortcomings, the defendant is presenting his view of the evidence and, in effect, ignoring the role of the fact finder in determining where the truth lies. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003) (“The Commonwealth need not exclude every reasonable hypothesis of innocence.... If the evidence lends itself to several conflicting interpretations, it is the province of the [fact finder] to resolve the discrepancy and determine where the truth lies”) (quotations omitted). The Commonwealth presented ample evidence showing that the defendant was the perpetrator. Such evidence included the bank security photographs and the defendant's registry of motor vehicles (RMV) record, which included a photograph of the defendant, an exemplar of his signature, and his social security number. The judge could have compared the signature that indorsed the check to the exemplar from the RMV report, and he also could have compared the bank security photographs to both the RMV report's photograph and the defendant's appearance in the courtroom. See Commonwealth v. Susi, 394 Mass. 784, 788 (1985); Commonwealth v. O'Connell, 438 Mass. 658, 662–663 (2003). Similarly, the judge could have matched the defendant's social security number, which is listed in the RMV report, to the same number on the State-issued identification presented to the bank, as recorded in the transaction log.
The defendant chiefly complains that the photographs were marked with slightly different time stamps than those on the transaction reports. The difference is a matter of a few minutes, and it seems reasonable to infer that bank transactions involving such a large amount of cash would take more than a few minutes to complete.
This evidence was legally sufficient because a rational trier of fact could have found, beyond a reasonable doubt, that the defendant was the person who negotiated the checks at the Harvard Square and Belmont banks.
The defendant posits that the defendant could have been a victim of identity theft. Again, that is a possibility within the province of the fact finder, who concluded otherwise in this case.
Intent and knowledge. The defendant next argues that the Commonwealth failed to prove with legally sufficient evidence that the defendant had the requisite intent for larceny and the requisite intent and knowledge for uttering because there was no evidence that the checks were unauthorized. According to the defendant, the acquittal for forgery also sweeps away the evidence that the defendant intended to permanently deprive a person of property (larceny) or that the defendant knew the checks were false and intended to defraud (uttering). We disagree.
“A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980).
On the larceny convictions, the defendant argues that his intent to permanently deprive another of property was not proved. “One who takes property without the authority of the owner and so uses or disposes of it as to show indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently.” Commonwealth v. Salerno, 356 Mass. 642, 648 (1970). The intent to permanently deprive a person of property can therefore be inferred from the defendant leaving the banks with large amounts of cash. Moreover, that the defendant requested cash for the checks (as opposed to depositing them) and cashed two checks at two different banks within a short interval suggests that the defendant had no intention to return the money to its rightful owner. Accordingly, we conclude that a rational trier of fact could have found that the defendant had the requisite intent.
On the uttering convictions, the defendant contends that the Commonwealth failed to prove that he had either the requisite knowledge that the checks were forged or the intent to defraud.
The evidence, however, was sufficient. First, the checks presented by the defendant had features that did not match those on the checks ordinarily used by the Callippe Preserve Golf Course. For example, the defendant's checks were from the “Collippe Pressure” Golf Course. They said “pay to” instead of “pay to the order of.” They had the bank's address justified left instead of centered. And the defendant's checks had improper placement of many of the items—e.g., the date, the dollar amount, the payee line, and the check number. Second, the nature of the defendant's transactions could also be used to infer the requisite knowledge and intent to defraud. Within an hour, the defendant cashed two checks for the same amount in two different locations. He also negotiated the checks for large amounts, $3,850, and requested the funds in cash rather than depositing them. See Commonwealth v. Catania, 377 Mass. 186, 189 (1979) (evidence legally sufficient where circumstantial evidence showed that defendant requested large sums of cash at multiple banks). Based on this evidence, we conclude that a rational trier of fact could have found that the defendant knew that the checks were forged and intended to defraud the bank or the account holder.
“The crime of uttering consists of four elements: (1) offering as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.” Commonwealth v. Levin, 11 Mass.App.Ct. 482, 496 (1981).
Judgments affirmed.