Opinion
14-P-1369
03-28-2016
COMMONWEALTH v. KEVIN FISHER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in the Superior Court, the defendant was convicted of larceny by false pretenses. He appeals, arguing that the judge erred in denying his motion for a required finding of not guilty because there was insufficient evidence to prove that he had the requisite intent to deprive the victims, John and Deborah LaPaire, of their property permanently. We affirm.
At the close of the Commonwealth's evidence, the defendant's motion for a required finding of not guilty (combined with his closing argument) was allowed as to the theory of larceny by embezzlement, but denied as to the theories of "straight" larceny and larceny by false pretenses. Thereafter, the judge found the defendant solely guilty of larceny by false pretenses.
"When reviewing a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). We must consider whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Id. at 677, quoting [from] Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)." Commonwealth v. McWilliams, 473 Mass. 606, 610 (2016).
According to John LaPaire's testimony, on March 1, 2013, the LaPaires entered into a contract with the defendant to have existing siding replaced on a home they owned located on "X Street, Turners Falls." LaPaire stressed to the defendant that the project was time sensitive and that it was important that it be completed by the end of March, 2013, due to a directive from his insurance company. The defendant assured LaPaire that he likely would get the project done in one week's time, and that the weather would not delay the job because he was "used to working in all kinds of weather" and weather did not affect his ability to get the job done. At the time the contract was signed, LaPaire paid in cash $3,481, representing the first installment of the total due; the defendant issued a handwritten receipt acknowledging the cash payment.
After the contract was signed and the cash deposit was given, nothing happened. About one week later, the defendant contacted the LaPaires asking for additional cash to purchase materials for the project; Deborah LaPaire gave him $500 and noted the payment on the contract. The work did not begin. John LaPaire sent electronic mail messages (email) and telephoned the defendant many times inquiring as to when work would begin; the defendant eventually told LaPaire that he would begin work by April 22, 2013, or would refund the money paid. That date came and went without the defendant beginning the work; nor had there been a permit issued for the work to be done.
At some point in April, 2013, the LaPaires discovered that the defendant's telephone had been disconnected and the Web site for his contracting company (X-treme Renovations) was no longer accessible. They then hired another contractor at the end of April, 2013, who completed the job in approximately three weeks (at a rate substantially higher than that set by the defendant). At trial, the defendant conceded that the contracted work had not been done, and the money paid by the LaPaires had not been returned.
The Commonwealth had the burden of proving beyond a reasonable doubt that "(1) the defendant knowingly made a false statement of fact; (2) the defendant intended that the person to whom the false statement was made would rely on its truth; (3) such person did rely upon the false statement; and (4) the person parted with personal property based upon such reliance." Commonwealth v. Oliver, 60 Mass. App. Ct. 770, 771 (2004), quoting from Commonwealth v. Gall, 58 Mass. App. Ct. 278, 285-286 (2003). See Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489, 496-497 (2015).
The defendant argues that, because there was no evidence demonstrating that he intended at the time the contract was signed to deprive the LaPaires of their property permanently by failing to perform the renovations, his motion for a required finding of not guilty should have been allowed as to the charge of larceny by false pretense. In making this argument, the defendant relies on Commonwealth v. True, 16 Mass. App. Ct. 709 (1983), in claiming that intent not to perform cannot be inferred from nonperformance of the promise made; he also looks to Commonwealth v. Oliver, 443 Mass. 1005 (2005), in asserting that his failure to return the deposit did not prove his intent not to perform. We are not persuaded.
In True, supra at 713, this court said, "[w]hile it is true that . . . the defendant failed to comply with many of his obligations prior to the falling through of the transaction, we conclude there was insufficient evidence to show that on [the day the agreement was signed] the defendant anticipated he would not perform. . . . [T]here was no showing of insolvency, or encumbrances exceeding the purchase price, or a failure by the builder to attempt to do any work on the house" (emphasis supplied). In Oliver, supra at 772-773, the alleged victims went to the police within weeks of paying the defendant and before any firm start date had been set. This court concluded that inferring intent to deprive the victims permanently of their property would be "conjecture or speculation or the piling of inference upon inference." Id. at 776, quoting from Commonwealth v. Jerome, 56 Mass. App. Ct. 726, 732-733 (2002).
Here, unlike either True or Oliver, the judge, as fact finder, found John LaPaire's testimony credible in determining that during the negotiation of the contract the defendant made "verbal assurances to Mr. LaPaire that he would and could start the work . . . immediately, would be able to do it within a week, . . . [and] that weather would have absolutely no effect on his ability to begin and complete the work." The judge also inferred from circumstantial evidence presented, "that after obtaining money, [the defendant] failed to do anything and there's additional evidence of consciousness of guilt, where sometime after approximately a month or so the LaPaires find that [the defendant]'s telephone numbers are disconnected, the Web site for his business is closed, he became very difficult to locate" and that the evidence, in the judge's view, "[was] sufficient to establish the fraudulent representation by [the defendant] of existing fact; that is, with regard to his ability at that time to do, and his ability, his intention to do the work for which the LaPaires contracted with him."
Reviewing the evidence in the light most favorable to the Commonwealth, and all permissible inferences drawn therefrom, we are satisfied that the Commonwealth presented "enough evidence that could have satisfied a rational trier of fact of each . . . element beyond a reasonable doubt." Commonwealth v. Torres, 468 Mass. 286, 292 (2014), quoting from Latimore, 378 Mass. at 677-678. That is, the judge reasonably could have concluded that the defendant knew at the time that he assured the LaPaires that he would be able to start work immediately, despite any weather complications, that the representation was false; that he intended that they rely on the statement; that they did rely on the statement; and that they paid him a substantial amount of money, $3,918, based upon that reliance. Compare Commonwealth v. Lepper, 60 Mass. App. Ct. 36, 42 (2003) (evidence sufficient to find defendant guilty of larceny by false pretenses by engaging in fraudulent schemes). We see no error.
Judgment affirmed.
By the Court (Katzmann, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: March 28, 2016.