Commonwealth v. Catalano

908 N.E.2d 842, 74 Mass. App. Ct. 580, 2009 Mass. App. LEXIS 913
CourtMassachusetts Appeals Court
DecidedJuly 1, 2009
DocketNo. 08-P-1340
StatusPublished
Cited by5 cases

This text of 908 N.E.2d 842 (Commonwealth v. Catalano) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Catalano, 908 N.E.2d 842, 74 Mass. App. Ct. 580, 2009 Mass. App. LEXIS 913 (Mass. Ct. App. 2009).

Opinion

Smith, J.

Following a jury-waived trial in the District court, the defendant, Paula Catalano, was convicted of two counts of larceny over $250, in violation of G. L. c. 266, § 30(1), and two counts of identity fraud, in violation of G. L. c. 266, § 37E. On appeal, she claims that the judge improperly denied her motion for required findings of not guilty, and that electricity and gas do not constitute “property” within the meaning of G. L. c. 266, § 30(2). We affirm.

1. Background. The fact finder reasonably could have found the following facts. During the relevant time period, the defendant resided at 70 Clisby Avenue in Dedham. While at that address, she opened an account under her own name to obtain gas and electricity from the utility companies NSTAR Electric and NSTAR Gas (collectively, NSTAR). That account was terminated in 2001 for failure to pay. Over the course of the following five to six years, at least five additional accounts were opened under different names to provide services from NSTAR for 70 Clisby Avenue. One of those accounts was opened in the name of the defendant’s nephew, Scott Dolan. The “Scott Dolan account” was opened in September, 2004, and closed in April, 2006, for failure to pay. After her original debt with NSTAR had been sold to an outside debt collection agency in 2004, the defendant was able to open a new account in her own name, which she did on October 18, 2006. Prompted by the receipt of a bill from a collection agency, Dolan reported to police that his personal information had been used to open a utilities account with NSTAR at the address where the defendant was living at the time. Further facts will be set forth as necessary.

2. Motion for required findings of not guilty. The defendant argues that her motion for required findings of not guilty was wrongly denied because the Commonwealth presented insufficient evidence to support both the identity fraud and the larceny charges.

In reviewing a motion for a required finding of not guilty, we examine the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In satisfying this standard, “the Commonwealth [582]*582may rely on reasonable inferences drawn from circumstantial evidence.” Commonwealth v. Degro, 432 Mass. 319, 325 (2000).

a. Identity fraud. The Commonwealth must prove beyond a reasonable doubt the following four elements to support a conviction of identity fraud: “specifically, that a 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.” Commonwealth v. Giavazzi, 60 Mass. App. Ct. 374, 376 (2004) (footnote omitted). See G. L. c. 266, § 37E(b). The defendant takes issue with the Commonwealth’s proof as to the second element. We conclude that there was sufficient circumstantial evidence of the lack of authorization, when viewed in combination and in the light most favorable to the Commonwealth, to support a conviction of identity fraud.

At trial, NSTAR employee Lisa Debonise testified that the defendant’s account had been terminated in 2001 for failure to pay, and that with her outstanding debt on NSTAR’s books until October, 2004, the defendant was unable to open an additional account in her own name during that period. The “Scott Dolan account” was opened on September 15, 2004, before that period had expired. At the time this account was opened, Dolan was eighteen years of age, a senior in high school, and living with his family in Dedham. At no point did he reside with the defendant, although he visited her house to babysit her children. After receiving a bill from a collection agency, Dolan conferred with his family about how to proceed. After no agreement was reached, he contacted the police and told them that “somebody” had used his personal information to obtain services from NSTAR. The gas and electricity account records entered in evidence under the name of a different individual for services at 70 Clisby Avenue during the relevant period also bear the notation that the account holder “believes she is a victim of ID theft.”

Although the defendant is correct that Dolan never was asked by the prosecutor if he expressly had authorized the defendant to use his personal information, the judge reasonably could have inferred from the evidence presented that Dolan never authorized the use of his personal information. That inference is particularly [583]*583supported by Dolan’s age at the time the account was opened, his status as a student, and his subsequent report to police; the judge made no impermissible leap of conjecture or speculation. Contrast Commonwealth v. Giavazzi, supra at 377-378 (where the only admissible evidence on subject of authorization was that defendant had been authorized to cash checks, any inference that he had not been so authorized “would not rise above the level of speculation”).

b. Larceny. The defendant next asserts that, because some payments were made on the “Scott Dolan account,” the Commonwealth failed to prove that she intended to steal from NSTAR. See G. L. c. 266, § 30(1). “A person’s knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence. Knowledge or intent, however, may be proved by inference from all the facts and circumstances developed at trial.” Commonwealth v. Costa, 407 Mass. 216, 225 (1990).

The NSTAR account information for the relevant time period indicates that in exchange for services provided to 70 Clisby Avenue, several thousand dollars of outstanding debt accumulated over the course of eleven years. At least six accounts were terminated for failure to pay, with the exception being the seventh, i.e., the most recent account, which was terminated because the defendant moved from that address. On the basis of that evidence, a reasonable trier of fact could have concluded the defendant never intended to repay the outstanding debt accumulated on the “Scott Dolan account.” The fact that a few small payments were made does not undermine that inference.

The motion for required findings of not guilty was properly denied.1

3. Larceny of electricity and gas. The defendant lastly contends that the electricity and the gas sold by NSTAR do not constitute “property” as defined by G. L. c. 266, § 30(2).2

[584]*584Although perhaps a novel question one hundred years ago, there can be no doubt that gas and electricity are considered “personal chattels” under the present statute. While the defendant is correct that this precise issue never has been addressed in Massachusetts, it is a well-established legal principle that electricity and gas are personal property that may be the subject of larceny.

It long has been established in the Commonwealth that gas is a chattel subject to larceny. Commonwealth v. Shaw, 4 Allen 308, 309-310 (1862), citing Regina v. White, 6 Cox C.C. 213 (1853). Commonwealth v. Cote, 15 Mass App. Ct. 229, 230-231 (1983).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Thompson
89 Mass. App. Ct. 456 (Massachusetts Appeals Court, 2016)
Commonwealth v. Mattier
474 Mass. 261 (Massachusetts Supreme Judicial Court, 2016)
GFI Wisconsin, Inc. v. Reedsburg Utility Commission
440 B.R. 791 (W.D. Wisconsin, 2010)
In re Erving Industries, Inc.
432 B.R. 354 (D. Massachusetts, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
908 N.E.2d 842, 74 Mass. App. Ct. 580, 2009 Mass. App. LEXIS 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-catalano-massappct-2009.