Opinion
16-P-615
05-26-2017
COMMONWEALTH v. Christian LONGTINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant was convicted on two counts for larceny of a credit card and one count of breaking and entering a vehicle in the night with the intent to commit a felony. He argues on appeal that the Commonwealth presented insufficient evidence to prove the charges beyond a reasonable doubt. We agree and reverse the convictions.
The defendant was charged and convicted of larceny of a credit card under the misuse of a credit card statute, which provides, in pertinent part, "Whoever, with the intent to defraud ... takes a credit card from the person, possession, custody or control of another without the cardholder's consent by any conduct which would constitute larceny, ... shall be punished by a fine of not more than five hundred dollars or by imprisonment in a jail or house of correction for not more than one year or both." G. L. c. 266, § § 37B(b ), (k ), as amended by St. 1984, c. 231, § 1.
Background. We set forth the facts, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). At approximately 4:30 p.m. on November 21, 2014, the victim parked his truck in the driveway of his home at 54 Cottage Street in Framingham. The next morning he discovered that several items, including his wallet containing a debit card and a credit card, had been taken from the truck.
At 10:58 p.m. on November 21, 2014, a Framingham taxicab company received a call requesting roundtrip service from 77 Cottage Street in Framingham to a CVS store at 137 West Central Street in Natick. As seen on surveillance footage, the taxi pulled up to the entrance of the CVS store at 11:22 p.m. The defendant and an unidentified man exited the taxi and entered the store, where they paid for several items with a card. The two men then left the store together, each one carrying bags of the items they had purchased.
Business records from the taxicab company show that at 11:35 p.m. a VISA card with the last four digits "8347" was used to pay for the fare. These last four digits matched those of the victim's missing debit card. No evidence was presented regarding the card used in the CVS store.
"[A] debit card amounts to the functional equivalent of a credit card" for purposes of the misuse of a credit card statute. Commonwealth v. Ryan, 79 Mass. App. Ct. 179, 184 (2011).
On December 3, 2014, a detective arrested the defendant at his home in Framingham. The defendant's home is at the intersection of Danforth Street and Cottage Street, around the corner from the victim's home and the pickup location for the taxi ride.
Discussion. We review the denial of a motion for a required finding of not guilty 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." Latimore, 378 Mass. at 677, quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Here, the Commonwealth's case rested entirely on circumstantial evidence that the defendant possessed, and thus stole, the victim's debit card. The Commonwealth presented no independent evidence linking the defendant to the theft of the victim's credit card or to the breaking and entering into his vehicle. Thus, unless there was proof beyond a reasonable doubt that the defendant stole the victim's debit card, the evidence was necessarily insufficient to sustain any of the three convictions.
We turn therefore to whether the Commonwealth met its burden of proving that the defendant stole the debit card. Larceny may be proven circumstantially by evidence of a "defendant's mere possession of recently stolen property." Commonwealth v. Latney, 44 Mass. App. Ct. 423, 425 (1998). As the defendant concedes, the judge could have inferred that the stolen debit card was used to pay for the taxi ride from 77 Cottage Street to the CVS store in Natick. The judge could have further inferred that the defendant was one of the two men captured by surveillance video exiting the taxi in front of the CVS store. We agree with the defendant, however, that the Commonwealth failed to prove that he, and not the other man, was the possessor of the stolen card. "When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Commonwealth v. Carter, 306 Mass. 141, 147 (1940). Accord Commonwealth v. Rodriguez, 456 Mass. 578, 582 (2010). On the evidence presented, it was equally inferable that the other man possessed the card, and so the judge "could only speculate that the defendant was more likely than another to have been the perpetrator." Commonwealth v. Frisino, 21 Mass. App. Ct. 551, 555 (1986).
We reject the defendant's assertion that the Commonwealth failed to establish that the taxi seen on the surveillance video was the same taxi that was paid for using the stolen debit card. The discrepancies between the surveillance footage and the records from the taxicab company go to the weight of the evidence, not its sufficiency. See Commonwealth v. Bennett, 424 Mass. 64, 68 (1997).
--------
The Commonwealth does not argue to the contrary but instead switches theories on appeal, claiming that there was enough evidence to convict the defendant as a joint venturer. We disagree. The essential elements of joint venture liability are "that the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). Mere presence at the scene of the crime is insufficient to prove a defendant's knowing participation, even if "supplemented by evidence that the defendant ‘knew about [the crime] in advance.’ " Commonwealth v. Gonzalez, 475 Mass. 396, 414 (2016), quoting from Zanetti, 454 Mass. at 470. "Rather, there must be some additional proof that the defendant ‘consciously ... act[ed] together [with the principal] before or during the crime with the intent of making the crime succeed.’ " Ibid., quoting from Zanetti, 454 Mass. at 470.
In this case the Commonwealth offered no evidence that would support a finding beyond a reasonable doubt that the defendant consciously acted together with his companion to steal the victim's debit card. The evidence the Commonwealth cites—that the crime occurred near the defendant's home, that he and the other man rode in a taxi together on the night of the crime, that the taxi was paid for using the debit card, and that both men purchased items at CVS (with an unidentified card)—does not prove even that the defendant knew that the debit card was stolen, let alone that he knowingly participated in the theft. See id. at 407, quoting from Commonwealth v. Swafford, 441 Mass. 329, 343 (2004) (conviction may not rest on assumptions and "piling of inference upon inference"). The Commonwealth presented no evidence whatsoever about the identity of the other man, his relationship to the defendant, or the events leading up to the taxi ride. Even if the judge could have inferred that the defendant was present when the stolen card was used, that is not enough to hold him criminally responsible as a coventurer. See id. at 414. Because the evidence was therefore insufficient to prove that the defendant stole the victim's debit card, none of his convictions can stand.
Judgments reversed.
Verdicts set aside.
Judgments for defendant.