Opinion
SJC-13474
09-24-2024
COMMONWEALTH v. RACHELLE SCORDINO
Laurie Yeshulas for the defendant. Daniel DeBlander, Assistant District Attorney, for the Commonwealth.
Uttering Forged Instrument. Negotiable Instruments, Forgery. Forgery. Evidence, Intent. Intent. Practice, Criminal, Required finding.
Laurie Yeshulas for the defendant.
Daniel DeBlander, Assistant District Attorney, for the Commonwealth.
After cashing a single check from a person who did not know her, the defendant, Rachelle Scordino, proceeded to a jury-waived trial on one count of larceny by check and one count of uttering a false check. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty. The judge granted the motion with respect to the larceny charge and found the defendant guilty of uttering. The Appeals Court reversed the conviction. See Commonwealth v. Scordino, 102 Mass.App.Ct. 586 (2023). We granted the Commonwealth's application for further appellate review and reverse the conviction.
The Commonwealth dismissed a third count, forgery of a check in violation of G. L. c. 267, § 1, immediately prior to trial.
1. Facts.
On May 11, 2017, the defendant entered a bank (where she had an account), presented her driver's license, and cashed a check made payable to her in the amount of $950. The check was drawn from the Adams Family Living Trust and was purportedly signed by Phyllis Adams, a trustee on the account (account holder). The account holder reported to the police that she was missing checks from her checkbook after noticing that several checks had been drawn on her account. At trial, the account holder testified that she had never before seen or met the defendant and would have no reason to pay her.
2. Discussion.
"The elements of the crime of uttering, G. L. c. 267, § 5, are '(1) offering as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.'" Commonwealth v. O'Connell, 438 Mass. 658, 664 n.9 (2003), quoting Commonwealth v. Levin, 11 Mass.App.Ct. 482, 496 (1981), S.C., 390 Mass. 857 (1984). The Commonwealth presented the following evidence to prove the defendant's knowledge that the check was forged, and intent to defraud: (1) the account holder did not authorize the check, (2) the account holder had no reason to pay the defendant, and (3) the defendant cashed the check drawn on the account of a stranger. None of these facts adequately establishes the elements of knowledge and intent. Although the first two pieces of evidence contribute to an inference that the check was forged, the Commonwealth failed to connect those facts to the defendant. See Commonwealth v. Oliver, 494 Mass., (2024). Similarly, the fact that the defendant cashed a check from an account holder unknown to her is insufficient to prove that she had knowledge of the forgery or that she intended to defraud. See Id. at __. Thus, the evidence presented cannot sustain a conviction of uttering a false check. See Id. at __, quoting Commonwealth v. Lopez, 484 Mass. 211, 216 (2020) ("[N]o essential element of the crime may rest in surmise, conjecture, or guesswork").
The defendant also claims that the Commonwealth's closing argument created a substantial risk of a miscarriage of justice and, in the alternative, that trial counsel was ineffective for failing to object. Because we reverse the conviction on sufficiency grounds, we do not reach these claims.
3. Conclusion.
Because the Commonwealth's evidence was insufficient as a matter of law, the judgment of the District Court is reversed, the verdict is set aside, and judgment shall enter for the defendant.
So ordered.