Opinion
16-P-432
02-22-2017
COMMONWEALTH v. Samantha A. NEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was convicted of identity fraud and operating with a suspended license. She appeals, contending that G. L. c. 266, § 37E, under which she was convicted, is inapplicable to the facts of her case. We affirm.
The Commonwealth entered a nolle prosequi as to a charge of receiving stolen property less than $250, and the defendant was found not responsible for speeding.
Although she filed a general notice of appeal, in her brief the defendant states that she does not challenge the driving with a suspended license conviction.
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The driver's license that the defendant possessed was discovered missing in June, 2013, when the wallet of its owner, Vanessa Molle, was stolen. In November, 2013, a driver, proven at trial to be the defendant, presented police with Molle's license while being issued a speeding citation. The State trooper failed to recognize that the defendant was not the same person as depicted on the driver's license. In March, 2014, Molle learned that her license had been suspended for failing to pay the speeding ticket issued in November, 2013. The defendant was later arrested in July, 2014, after a traffic stop when she again presented Molle's driver's license to police. Charges stemming from that arrest were resolved at separate proceedings.
The challenged conviction for identity fraud stems back to the November, 2013, traffic stop. The Commonwealth sought to prove that charge pursuant to G. L. c. 266, § 37E(c ), inserted by St. 1998, c. 397, § 1, which requires the Commonwealth to prove that the defendant, with the intent to defraud: (1) "obtain[ed] personal identifying information about another person" with the intent to pose as that person; (2) without that person's express authorization; and (3) with the intent "to obtain money, credit, goods, services or anything of value."
The defendant argues that the Commonwealth sought its conviction on a theory that § 37E(c ) did not require proof that the defendant obtained anything of value through her use of false identification, and the judge's allowance of the case to proceed on that theory constituted error. In the alternative, the defendant contends that the Commonwealth did not prove that the defendant stole Molle's driver's license with intent to defraud.
The basis of the defendant's primary argument is the following exchange between the prosecutor and judge during the defendant's motion for a required finding of not guilty.
THE COURT : "So you're moving under the second theory of—if you look at the statute, there is a theory that with the intent to defraud, a person commits the crime, that they obtain personal identifying information about another person without that person's permission with the intent to pose as such person. That is the theory you're going under?"
PROSECUTOR : "Yes, Your Honor."
THE COURT : "So you're not arguing that this was an attempt to obtain money, credit, goods or something of value, or are you?"
PROSECUTOR : "No, Your Honor."
That exchange between the judge and prosecutor, however, was in response to the judge's question as to what section of G. L. c. 266, § 37E, the Commonwealth was seeking to prove. The judge's initial question referred to § 37E(b ), which mirrors § 37E(c ) except § 37E(b ) involves a person posing as another in order to obtain, or attempt to obtain, the other's personal identifying information, or anything of value, rather than using identifying information that previously had been obtained. As such, we are not persuaded by the defendant's argument that the statute was improperly considered by the judge. We also conclude that it was clear to all parties under which section the Commonwealth was proceeding. See Commonwealth v. Jackson , 80 Mass. App. Ct. 528, 530 (2011) ("As this was a bench trial, we presume that the judge instructed himself correctly on the law"). Accordingly, there was no error.
As to the defendant's other argument, since the defendant had obtained, retained, and presented Molle's driver's license, we conclude that it was reasonable for the judge to infer that the defendant had the requisite intent to defraud when she obtained the driver's license. There is no dispute that this was done without Molle's authorization, as her license was stolen. In addition, as to the element requiring that the defendant obtained something of value from posing as Molle, we conclude that her ability to drive despite her license being suspended certainly qualifies as something of value.
Judgments affirmed .