Opinion
No. 11–P–996.
2012-11-21
COMMONWEALTH v. Nataliz CLAUDIO.
By the Court (CYPHER, GRAINGER & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her convictions on six counts of larceny over $250 by a Superior Court jury in February, 2010. The trial followed her previous convictions in 2007 for these offenses which were reversed on appeal to this court.
The defendant was found not guilty on a charge of uttering a forged instrument.
Indicted in January, 2007, the defendant was charged with seven counts of larceny and was convicted after a jury trial in August, 2007. On appeal, the Commonwealth confessed error in the jury instructions, and the convictions were reversed. Commonwealth v. Claudio, 73 Mass.App.Ct. 1101 (2008) (The absence of an instruction on honest and reasonable mistake of fact created a substantial risk of a miscarriage of justice. The defendant “testified that she was unaware that the check in question, which she had received from a friend, was invalid”).
Facts. On May 4, 2006, at the request of Jessica Diaz, the defendant deposited in her United Bank checking account a cashier's check for $53,884.23, issued by a Canadian bank, drawn to Diaz. According to the defendant, Diaz asked her to use the defendant's checking account to cash the check because Diaz had “bounced checks” and was unable to use her own account. Diaz endorsed the check to the defendant and subsequently the defendant made withdrawals of the entire proceeds as requested by Diaz on May 11, 12, 13, and 15. On May 23, 2006, United Bank was notified by a Federal Reserve Bank that the check deposited by the defendant was counterfeit. Subsequently the bank turned the matter over to the police for investigation. On appeal, the defendant argues that the Commonwealth failed to meet its burden of proving the defendant had the specific intent required for the crime of larceny where there was evidence that she had an honest and reasonable belief that the money belonged to Diaz.
Discussion. The Commonwealth correctly asserts that when United Bank discovered that the Canadian check was counterfeit, it “was apparent ... that one or more persons had the requisite intent to steal this money from the bank.” The Commonwealth asserts that it presented sufficient evidence according to Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979), to prove that the defendant had the requisite intent to commit larceny by stealing, focusing on the defendant's role in cashing the Canadian check. Acknowledging that a person's knowledge and intent may not be susceptible of proof by direct evidence, the Commonwealth argues that inferences drawn from circumstantial evidence may be sufficient to establish intent beyond a reasonable doubt. Cf. Commonwealth v. Casale, 381 Mass. 167, 173 (1980).
“The elements of larceny (by stealing) are (1) the unlawful taking and (2) carrying away (asportation) (3) of personal property of another (4) with the specific intent to deprive the person of the property permanently.” Commonwealth v. Vickers, 60 Mass.App.Ct. 24, 27 (2003).
The Commonwealth principally asserts that the pattern of the withdrawals made in cashing the check was circumstantial proof that the defendant intended to deprive the bank of its funds. After initially depositing the check and being told that funds would not be available until provisional approval of the check, the defendant began withdrawals the next day after learning of the approval, and withdrew all the funds within five days, making the withdrawals from three different branches of the bank. In making a large withdrawal on May 15, and accompanied by a young man, the defendant was asked for additional personal information. Calling the bank soon after, she asked why the additional information was requested, and was told that banking regulations required reporting of all cash withdrawals over $10,000. She asked whether reporting was required “[e]ven if it's not my money.” The defendant withdrew all the remaining funds the same day.
The Commonwealth asserts that this circumstantial evidence viewed in the “unlikely circumstance of a third party endorsing a valid cashier's check to the defendant,” constitutes sufficient proof that the defendant participated in the crime of larceny. That assertion, however, implicitly is based on an unacceptable and speculative inference that the defendant knew the check was counterfeit and that she had been asked by Diaz to participate in a scheme to defraud the bank.
In the circumstances where United Bank personnel observed nothing suspicious in their visual examination of the check, and a telephone inquiry made to Banque Royal de Canada confirmed that funds were available in an account identically numbered with the account shown on the check, and where United Bank processed the withdrawal requests in normal fashion, it is entirely speculative that the defendant would know the check was not Diaz's property.
The record does not reveal how the check was determined to be counterfeit. There is no evidence indicating how the check was created, or the circumstances of how Diaz came into possession of the check. It is apparent that the check was the product of sophisticated knowledge of the banking system's processing of foreign checks.
“Proof that allows for no more than speculation requires that a defendant's motion for a required finding of not guilty be allowed.” Commonwealth v. Oliver, 60 Mass.App.Ct. 770, 776 (2004). The defendant's motion for a required finding should have been allowed.
The defendant argues that the judge improperly excluded evidence in support of her attempt to introduce a third party culprit defense. Because of our decision, it is not necessary to address these issues.
Judgments reversed. Verdicts set aside. Judgments for the defendant.