Opinion
No. 15–P–751.
05-17-2016
COMMONWEALTH v. Matthew R. MADEUX.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Based on allegations that he made unauthorized use of his parents' credit card, a District Court jury found the defendant guilty of credit card fraud over $250, and larceny over $250 by a single scheme. The Commonwealth presented only one witness, the defendant's mother. On appeal, the defendant challenges the sufficiency of the evidence, and the admission of a key portion of the mother's testimony. For the reasons outlined below, we conclude that the evidence was sufficient but that the defendant is entitled to a new trial.
The court allowed the defendant's motion for required finding of not guilty on larceny under $250.
Background. We summarize the trial evidence, reserving certain facts for later discussion. The defendant's parents jointly owned a particular credit card. In December of 2011, the mother noticed that she had not received the monthly statement for that card as expected. The statement that she received in January of 2012 included more charges than usual, as well as charges of a different kind (e.g., for DVD rentals). She personally had not made any of the charges; indeed, she came to realize that during the relevant period, the card was missing from her possession. The question she faced was whether the charges on the statements had been authorized by her husband (the defendant's father).
The mother acknowledged that, on occasion, she herself had authorized the defendant to use the credit card to purchase items both before and after the charges at issue in this case.
According to the mother's testimony, “both [her] husband and [she] sat down” and created a list of charges that they “believed ... were unauthorized and made by [the defendant].” Based on her meeting with her husband, the mother produced a hand-written list purporting to show eighty-one unauthorized purchases between November 23, 2011, and January 19, 2011, totaling almost six thousand dollars. That list, and the underlying credit card statements, were admitted in evidence. The mother testified that when she had confronted the defendant with the list of questionable charges, he “didn't deny it,” but “did say he was sorry.”
The mother's testimony about the father's role in reviewing the credit card statements was in response to a question during cross-examination asking the mother to confirm that when she went through the monthly statements, she was “making check marks on the right-hand column to indicate that [she] believed these were unauthorized and made by [the defendant].” The defendant immediately moved to strike the answer to the extent it bore on the husband. The judge allowed the answer to stand, commenting, “[n]o, he [the husband] was there.” At an earlier point in the trial, when the mother attempted to testify that her husband had not made the relevant charges either, the judge had sustained the defendant's objection “as far as ... what her husband may or may not have done.”
Discussion. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, including taking all reasonable inferences in the Commonwealth's favor. Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). We do so “without regard to the propriety of” the admitted evidence, including, here, the mother's testimony about her husband's role in identifying the unauthorized purchases. Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 98 (2010).
“Nothing in the record suggests any misconduct in the prosecutor's submission of the evidence.” Lockhart v. Nelson, 488 U.S. 33, 35 (1988).
The defendant contends that the Commonwealth failed to present sufficient proof that he—or for that matter, anyone else—had made unauthorized credit card purchases. We disagree. Indeed, his statement that he was “sorry,” which was made in direct response to being confronted with the list of unauthorized purchases, could be taken by rational jurors as an acknowledgement that he had made these purchases (particularly in light of his unique access to the card). See Commonwealth v. Lewis, 465 Mass. 119, 127 (2013). While an admission alone cannot supply the extent of the Commonwealth's case, there need only “be some evidence, besides the confession, that the criminal act was committed by someone.” Commonwealth v. Forde, 392 Mass. 453, 458 (1984). In other words, the corroboration that is needed is that a crime has occurred, not the defendant's role in it. The jury heard ample evidence that someone had made unauthorized use of the credit card.
Lack of authority is an element of the crime of credit card fraud. G.L. c. 266, § 37C, inserted by St.1969, c. 832 (“Whoever, with intent to defraud ... obtains money, goods or services or anything else of value by representing without the consent of the cardholder that he is said cardholder” [emphasis supplied] ). It is not an element of the crime of larceny by single scheme, see G.L. c. 266, § 30(1), but it is an affirmative defense to the crime of larceny. See Commonwealth v. O'Connell, 438 Mass. 658, 664 (2003) (“[I]f [the defense of authority is] raised, the Commonwealth then bears the burden of proving beyond a reasonable doubt the absence of authority”). The defendant timely notified the Commonwealth that he was raising authority as an affirmative defense, and the judge instructed the jury that the Commonwealth had to prove lack of authority beyond a reasonable doubt.
The credit card had been missing from the desk where it was kept, and the defendant and his parents were the only residents in the house at that time.
Indirect hearsay. The inescapable inference from the mother's testimony about her husband's helping her to compile the list of unauthorized charges is that he had told her that he had not made (or authorized) the charges in question. Thus, embedded in the mother's testimony about the father's role were out-of-court statements (or nonverbal communications) from the father. See Commonwealth v. Cordle, 404 Mass. 733, 743–744 (1989) (discussing “back door” hearsay); Commonwealth v. Kirk, 39 Mass.App.Ct. 225, 230 (1995) (discussing “indirect hearsay”). Any such embedded statements were being offered for their truth (that is, that the father had not made or authorized the purchases). Because the Commonwealth has offered no exception to the hearsay rule that would render such testimony admissible, its admission was error.
The defendant objected to that testimony, and therefore we must determine whether that evidence prejudiced the defendant. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Because the question of whether the charges had been authorized was an element of one of the offenses and an essential part of a defense properly raised to the other, and because the Commonwealth presented no other evidence whether the father had authorized the charges at issue, the admission of the indirect hearsay amounted to prejudicial error. This deficiency entitles the defendant to a new trial.
Based on Commonwealth v. Funches, 379 Mass. 283, 296–297 (1979), the defendant argues that we should order that a judgment of acquittal be entered. Assuming Funches remains good law, where a verdict is set aside based on improperly admitted evidence, a judgment of acquittal is appropriate only where “ ‘the Commonwealth had no reasonable prospect of filling in the gap in its proof’ at retrial.” Commonwealth v. Taylor, 383 Mass. 272, 285 n. 17 (1981), quoting from A Juvenile v. Commonwealth (No. 2 ), 381 Mass. 379, 383 n. 5 (1980), cert. denied, 449 U.S. 1062 (1980). The defendant has made no convincing argument that such circumstances are present here.
Judgments reversed. Verdicts set aside.