Opinion
14-P-224
06-16-2015
COMMONWEALTH v. PAUL PICCIALLO.
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
The defendant appeals from his convictions, following a jury trial in the District Court, of larceny over $250, G. L. c. 266, § 30(1); two counts of identity fraud, G. L. c. 266, § 37E(b) and (c); and credit card fraud over $250, G. L. c. 266, § 37C(e). He argues that the evidence was insufficient to convict him on any count, more specifically, that the evidence failed to disprove that he had authorization for all of the financial transactions at issue, and did not possess an intent to defraud with respect to the identity fraud counts. We affirm.
We review a claim of insufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In satisfying this standard, "the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence." Commonwealth v. Degro, 432 Mass. 319, 325 (2000).
A. Larceny. Forming the basis of the larceny conviction were three separate financial transactions: the defendant's depositing into his personal bank account two checks drawn on the victim's personal bank account, in the amounts of $10,200 and $17,000, and his depositing into his personal bank account a check issued by Charles Schwab to the victim and purportedly endorsed by her, in the amount of $64,937.67, which appeared to represent the victim's entire retirement savings. The defendant argues on appeal, consistent with his argument below, that he had the consent or authorization of the victim for these transactions. He points to the fact that he and the victim were in a long-term dating relationship at the time of the transactions, and he made improvements to the victim's condominium (suggesting that the personal checks were payments for such), as evidence supporting this defense.
Although lack of consent or authorization is not an element of larceny, it is the "sine qua non" of the crime of larceny, and authorization may be raised as a defense to the charge. Commonwealth v. St. Hilaire, 470 Mass. 338, 345, 347 (2015).
Contrary to the defendant's argument, and viewing the evidence in the light most favorable to the Commonwealth, there was adequate evidence presented to allow a rational trier of fact to determine that the defendant was not authorized to conduct any of the transactions underlying the larceny count. As to the personal checks drawn on the victim's bank account and deposited into the defendant's bank account, the victim's ex-husband, to whom she had been married for thirty years and from whom she had only recently divorced, testified that the signatures on the two checks were not the victim's signatures.
Additionally, the victim's daughter testified that carbon copies of those two exact checks were missing from her mother's checkbook and were not recorded in the checkbook ledger, unlike other checks that had been written. Moreover, the large amount of each of the checks, which were issued within five days of each other and were successive (the first was check number 1317, the second, 1318), in combination with other evidence, supported a rational inference that the victim did not authorize their issuance.
With respect to the third check, issued by Charles Schwab to the victim in the amount of $64,937.67, the check was dated December 2, 2009, and purportedly endorsed by the victim, but it then was deposited into one of the defendant's personal banking accounts on December 5, 2009. This occurred despite the victim's retirement records that reveal that her ex-husband was her primary beneficiary, and her two children, along with another person, but not the defendant, were her contingent beneficiaries. Because the defendant was not legally entitled to any portion of the account in the event of the victim's death, and the victim maintained good relationships with her ex-husband and children, the jury reasonably could have inferred that the victim did not authorize him to deposit the entire check into his personal checking account.
This withdrawal also was premature, given the victim's age of fifty-two years; in addition, it being made without taxes withheld, an assessment for taxes and penalty was likely.
In addition, other circumstantial evidence contradicted the defense of consent and supported a broader inference that the defendant was taking advantage of the victim as her health condition worsened. For example, the victim's daughter, who had moved into the condominium in early January, 2010, became immediately suspicious upon finding credit card applications in her mother's name and met with a lawyer the following day. Additionally, the victim's daughter witnessed the defendant removing large appliances -- which were only one year old -- from the victim's condominium and telephoned police to report the activity. Only days after the victim's daughter became suspicious, the victim and her daughter moved out of the condominium, and the victim accompanied her mother to her bank after the daughter showed the victim copies of the two checks issued to the defendant. See Commonwealth v. Catalano, 74 Mass. App. Ct. 580, 582 (2009) (victim's report to police concerning account opened in his name was proof of lack of authorization of defendant to open such account).
By late 2009, the victim had been diagnosed with terminal pancreatic cancer and courses of chemotherapy had begun; she passed away in April, 2010.
In addition to the deposits into the defendant's bank accounts in December, 2009, beginning in January and continuing into April, 2010, large amounts were transferred or withdrawn.
B. Identity fraud. The Commonwealth charged the defendant with two counts under G. L. c. 266, § 37E: count two charged him with posing as the victim in applying for and using credit cards in her name, under § 37E(b); and count three charged him with obtaining her identifying information to open those cards, under § 37E(c). Under § 37E(b), the Commonwealth must prove beyond a reasonable doubt that the defendant (1) posed as another person, (2) did so without that person's express authorization, (3) used the other person's identifying information to obtain, or attempt to obtain, something of value, and (4) did so with the intent to defraud. See G. L. c. 266, § 37E(b); Commonwealth v. Giavazzi, 60 Mass. App. Ct. 374, 376 (2004). Under § 37E(c), the Commonwealth must prove that the defendant, with intent to defraud, obtained the personal identifying information of another person without their express authorization and with the intent to pose as that person in order to obtain money, credit, goods, or anything of value. G. L. c. 266, § 37E(c). The defendant does not dispute that he opened credit cards in the victim's name and, indeed, the credit card records show that the defendant sometimes used his personal electronic mail address to open the accounts. Rather, the defendant argues that the Commonwealth did not offer sufficient proof of lack of authorization and intent to defraud.
Viewing the evidence under the Latimore standard, the evidence was sufficient as to both counts in relation to the applications for, the opening of, and the use of all of the five credit cards specified in the jury's special verdict on count 4 (credit card fraud). The credit card accounts all were opened in a short period of time -- in late 2009 and early 2010 -- and around when the victim's daughter stated that the victim was "mainly unconscious" due to her terminal illness. Within weeks after the accounts were opened, frequent and large purchases of all varieties were made, and high balances were immediately accrued. For instance, the Discover account was applied for on December 3, 2009, and, by late January of 2010, a balance of $5,678.25 had accrued, mostly on purchases inconsistent with someone in the victim's health condition.
Other witnesses testified that in December, 2009, and through early February, 2010 (until the time when she moved back in with her ex-husband and children, at which time her health improved), the victim's health was severely deteriorating and she was described during this period of time as not "the same [Marjorie]"; she became dependent, lost weight, and had difficulty walking. She "looked out of it. . . . Her eyes would be foggy, not focusing," and she seemed "[v]ery sleepy, lethargic, kind of drooling, couldn't speak in full sentences, kind of slurred her words."
In addition to the credit card records, the jury were entitled to rely on the evidence that the victim's daughter, upon finding credit card statements and applications in her mother's name on February 2, 2010, immediately became suspicious and met with a lawyer the next day, and eventually reported some of the defendant's activities to police. Shortly thereafter, the victim and her daughter moved out of the condominium, thereby ending contact with the defendant, and never returned. The rational inference from this evidence is that the defendant was not authorized to open or to use the credit cards in the victim's name. Contrast Commonwealth v. Giavazzi, 60 Mass. App. Ct. at 377-378 (no evidence of absence of express authorization to support defendant's identity fraud conviction because defendant presented evidence that putative victim had given him authorization to cash checks in his name, and no evidence that defendant had forged putative victim's signature on checks at issue).
To the extent that the defendant has argued that he had authorization to pose as the victim for these financial transactions because he at one point was her health care agent, that agency relationship related only to the victim's health decisions, and there was no evidence in the record that the victim had given the defendant power of attorney.
C. Credit card fraud. As to this count, predicated on the basis that the defendant used (and was not authorized to use) the credit card accounts with Discover, American Express, Capital One, Toyota, and Bank of America that were issued in the victim's name, the defendant again argues that evidence showed that he had the victim's consent or authorization to do so. The evidence discussed in §§ A and B, supra, was likewise sufficient for this conviction.
Judgments affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 16, 2015.