Opinion
No. 10–P–1955.
2013-07-2
COMMONWEALTH v. Kerr CARRINGTON.
By the Court (COHEN, GRAHAM & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 24, 2006, and October 16, 2008, a Middlesex County Grand Jury returned a series of indictments against the defendant, alleging, essentially, that he had engaged in a pattern of conduct whereby, posing as another person, he would purchase goods and services and pay with fraudulent certified checks. In March, 2010, the defendant was convicted by a Superior Court jury of one count of identity fraud, two counts of larceny by false pretenses, one count of attempted larceny by false pretenses, three counts of uttering, and three counts of forgery. In a bifurcated proceeding, he was then convicted by a jury of two counts of being a common and notorious thief. Thereafter, he filed a notice of appeal from the convictions.
On April 16, 2010, the defendant brought a motion for entry of findings of not guilty, which was denied by the trial judge. He then moved for reconsideration of the denial and that motion was denied. A notice of appeal was filed regarding that denial and this court consolidated the appeals. On appeal, the defendant asserts numerous claims of error, which we address seriatim.
1. Search warrant. We find no merit in the defendant's claim that the motion judge erred in denying his motion to suppress evidence found in his Dorchester apartment because the affidavit supporting the warrant application failed to establish a sufficient nexus between his criminal activity and his residence. Probable cause to search exists where the facts contained in an affidavit, and reasonable inferences drawn therefrom, suffice to warrant the conclusion “that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Commonwealth v. Walker, 438 Mass. 246, 249 (2002), quoting from Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). A magistrate need only conclude that the items described in the application are probably at the place to be searched, Commonwealth v. Anthony, 451 Mass. 59, 69 (2008), and that determination is entitled to considerable deference from a reviewing court. Commonwealth v. Upton, 394 Mass. 363, 377 (1985).
Detective Blair's affidavit stated that the defendant was currently receiving mail at the apartment in Dorchester, that the defendant was operating a silver Saab when he attempted to pick up an order of camera equipment purchased with a fraudulent check, and that the Saab was parked in the driveway of that address. The magistrate was warranted in concluding that probable cause existed to believe that evidence of the defendant's crime, including computer equipment used to create fraudulent checks, would be discovered at the Dorchester address.
2. Sufficiency of the evidence. a. Identity fraud. In order to establish the crime of identity fraud, G.L. c. 266, § 37E( b ), the Commonwealth must prove beyond a reasonable doubt the following four elements: “specifically, that a defendant (1) posed as another person; (2) did so without that person's express authorization; (3) used the other person's identifying information to obtain, or attempt to obtain, something of value; and (4) did so with the intent to defraud.” Commonwealth v. Catalano, 74 Mass.App.Ct. 580, 582 (2009), quoting from Commonwealth v. Giavazzi, 60 Mass.App.Ct. 374, 376 (2004). The defendant takes issue with the Commonwealth's proof as to the first and third elements. We conclude that there was sufficient evidence of the use of another person's identifying information, when viewed in combination and in the light most favorable to the Commonwealth, to support a conviction of identity fraud.
We are not persuaded by the defendant's claim that the first element was not satisfied where he represented himself to be Malik Washington instead of Mali K. Washington. The defendant presented an employee of Bose Corporation with a fraudulent check which he signed using the name Malik Washington. The driver's license of Mali K. Washington was discovered by police in the defendant's Dorchester apartment. Regardless of the minor difference in the spelling of the names, the evidence was sufficient to warrant the jury's finding that the defendant intended to procure goods and services using Washington's name and using fraudulent checks.
Although the defendant did not display Washington's stolen license in connection with the attempted theft of merchandise from Bose, such a display is not required. Under G.L. c. 266, § 37E( b ),
it is sufficient for the Commonwealth to demonstrate that the defendant used Washington's name in an attempt to obtain goods from Bose.
.General Laws c. 266, § 37E( a ), inserted by St.1998, c. 397, § 1, defines “pose” as “to falsely represent oneself, directly or indirectly, as another person,” and defines “personal identifying information” as “any name or number that may be used, alone or in conjunction with any other information, to assume the identity of an individual....”
b. Identification of the defendant. We reject the defendant's argument that the evidence as to identification regarding counts 8–10 of the 2006 indictments (larceny over $250, forgery, and uttering a false document in connection with fraudulent checks passed to Lexus of Watertown) was insufficient because there was no in-court identification of him as the perpetrator of the crimes alleged. Detective MacNeil testified that Miguel Lopez, an employee of Lexus of Watertown, was shown a photographic array and selected the defendant's photo as the person who committed the crimes alleged in the indictments. The array itself was introduced at trial. Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to show identification of the defendant as the individual who passed fraudulent checks to the victim corporation.
c. Value of stolen items. Contrary to the defendant's claims, the evidence presented by the Commonwealth, namely testimony by Lopez, a parts technician at Lexus, was sufficient to warrant a conviction for larceny over $250 of numerous special parts ordered by the defendant from Lexus of Watertown on June 30, 2004. Lopez's testimony, supported by invoices, established that the total value of the parts at issue was $3,134.09.
d. False pretenses indictments. “A prosecution on the theory of larceny by false pretenses—that aspect of the larceny statute under which the prosecution proceeded—requires proof that: (1) a false statement of fact was made; (2) the defendant knew or believed the statement to be 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. Reske, 43 Mass.App.Ct. 522, 524 (1997).
The defendant argues that he made no false statements because checks are orders to pay, not statements. See Williams v. United States, 458 U.S. 279, 284 (1982) (“[A] check is not a factual assertion at all, and therefore cannot be characterized as ‘true’ or ‘false’ ”). We think the defendant's interpretation of G.L. c. 266, § 30, is too narrow. “A false pretense may be made by implication as well as by verbal declaration.... It is a statute broad in scope.” Commonwealth v. Reske, supra at 525–526. Here, all of the circumstances considered together would warrant a jury in concluding that the defendant made a representation that was false in order to obtain, fraudulently, the goods of another.
e. Forgery convictions. We also reject the defendant's claim that the evidence was insufficient to convict him of forging checks to Lexus of Watertown. The two Travelers Express checks presented by the defendant, using an alias, had false bank addresses and telephone numbers listed on the check as associated with Travelers Express that did not exist. The Commonwealth also presented evidence that check manufacturing software and stock for printing checks were retrieved from the defendant's apartment, along with several blank certified checks bearing the name of fictitious corporations. This web of circumstantial evidence was sufficient to warrant the convictions.
3. Venue for the forgery counts. The defendant contends that the evidence showed that the forgery equipment was seized in Suffolk County, nearly three months after the last forged check at issue was written, and, therefore, trial of the offenses in Middlesex County was improper and violated his rights under arts. 12 and 13 of the Massachusetts Declaration of Rights. We are not persuaded. The evidence clearly established that the crimes occurred in Middlesex County; venue is proper in the vicinity where the events are alleged to have occurred. See Commonwealth v. Brogan, 415 Mass. 169, 172–174 (1993); Commonwealth v. Adelson, 40 Mass.App.Ct. 585, 589 (1996).
4. Other issues. We conclude there is no merit to the remaining issues raised by the defendant (alleged improper comment by the prosecutor in closing argument and alleged improper jury instructions) and we need not spend much time addressing them. The prosecutor's contested statement
did not constitute improper vouching but, rather, was an inartful way of saying that nonsuggestive out-of-court identifications made shortly after a crime were, in some respects, more reliable than in-court identifications made months after the commission of a crime.
The prosecutor stated, “Even an honest person, I would submit to you, can't help but notice when they [ sic ] come up and sit on that witness stand that there's only one person seated at counsel table. It would be impossible even for an honest person not to notice that this man is the man who stands here accused and on trial .”
Finally, the judge did not err regarding the challenged jury instructions. The judge's instructions generally tracked the model jury instructions, and any slight divergence did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
Order denying motion for required findings of not guilty affirmed.