NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-666
COMMONWEALTH
vs.
CHRISTOPHER ALIMONTI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a District Court bench trial, the defendant was
convicted of larceny over $1,200 by false pretenses and placed
on three years of probation with a condition to pay the victims
$15,000 in restitution. On appeal, the defendant challenges the
sufficiency of the evidence and the order of restitution. We
affirm.
Discussion. 1. Sufficiency of evidence. We review the
denial of a motion for a required finding of not guilty to
determine "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To prove the crime of larceny by
false pretenses, the Commonwealth must establish that "(1) a
false statement of fact was made; (2) the defendant knew or
believed that the statement was false when he made it; (3) the
defendant intended that the person to whom he made the false
statement would rely on it; and (4) the person to whom the false
statement was made did rely on it and, consequently, parted with
property." Commonwealth v. Cheromcka, 66 Mass. App. Ct. 771,
776 (2006).
Here, the evidence presented by the Commonwealth at trial
allowed the judge to find that the defendant falsely represented
that he was a licensed home improvement contractor, and that he
knew this was a false statement when he made it. At their
initial meeting with the defendant, the homeowners specifically
asked whether he was licensed and insured. The defendant
responded, "Yes, absolutely." Nonetheless, he obtained a permit
using his brother's construction license and a forged signature
of the homeowner. Moreover, after the defendant ceased working
on the project, the homeowners attempted to investigate the
status of the defendant's contractor's license and found that he
received his license years after he worked on their project.
Additionally, the evidence allowed the judge to find that
the defendant falsely represented that he would start on a
project to build a cabana right away and that he knew this was a
2 false statement when he made it. The defendant said, "We got
about five days of good weather. If you give me 15,000 for the
cabana, I can start the cabana. We can get the footing and
foundation in, and I can always build it as the weather
changes." Although the defendant said he would start
immediately to take advantage of the good weather, he went to
Florida during the good weather and then blamed permitting
issues and poor weather conditions for putting off the cabana
project to the spring, ultimately never doing the project.
There was also evidence that the homeowners relied on these
false representations in giving the defendant $15,000. At their
initial meeting, the homeowners repeatedly asked the defendant
about his status as a licensed contractor, thereby demonstrating
the importance the homeowners placed on it. Additionally, the
parties discussed a range of renovation projects but drew up a
contract specifically regarding the cabana project with a
$15,000 deposit, again demonstrating the significance of getting
the cabana underway.
That the defendant intended the homeowners to rely on his
false representations can be inferred from his surreptitious
behavior. See Commonwealth v. Jerome, 56 Mass. App. Ct. 726,
732 (2002) (intent typically inferred from circumstantial
evidence). The defendant could have told the homeowners that he
needed to use someone else's license to get the permit but that
3 he could still do the job. He also could have told the
homeowners that, if the cabana project could not be started
right away, it would have to wait until the spring. But, if he
did so, the homeowners were not likely to have hired him and
parted with their $15,000. In addition to their insistence that
their contractor be licensed, the homeowners planned to move
into the house by mid-April and expected the construction to be
completed before they moved in. The evidence was sufficient to
allow the judge to find that every element of the charged
offense was proven.
On appeal, the defendant contends that the judge
erroneously inferred the defendant's intent to defraud from the
fact that the cabana was never completed. See Commonwealth v.
True, 16 Mass. App. Ct. 709, 711 (1983) (deception as to intent
cannot be inferred from mere nonperformance). He argues that
the defendant did substantial other construction work for the
homeowners such that it cannot reasonably be inferred that he
never intended to build the cabana. He likens this case to
Commonwealth v. Long, 90 Mass. App. Ct. 696, 701 (2016), where
this court reversed a conviction of larceny by false pretenses
on evidence that the defendant accepted a deposit and then began
a construction project but abandoned it. In that case, the
defendant made no particular representation except that implied
in the contract. In other words, by entering into a contract to
4 install windows, he promised that he would install windows.
After the relationship between the homeowners and the defendant
soured within a couple of days, the defendant stopped work and
gave the homeowners a final bill which included the cost of
windows that were never installed. We held that evidence was
insufficient to establish that the defendant harbored the intent
never to install the windows at the time he agreed to do so.
By contrast here, the defendant's representations went
beyond the implied promise to fulfill his contractual
obligations. Rather, there was evidence of specific
representations that the defendant must have known to be false
at the time he made them -- that he was a licensed contractor
and that he would start on the cabana right away to take
advantage of the good weather. Although the parties discussed
other renovation work, the only work that got reduced to writing
ahead of the work was the cabana. For the remaining work, the
defendant would simply ask for more money and the homeowners
would give it until they lost track of what expenditures were
associated with what work and had paid the defendant in excess
of $100,000.
At the homeowners' insistence for clarity, the defendant
prepared a document regarding the ongoing construction expenses
in the winter of 2018.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-666
COMMONWEALTH
vs.
CHRISTOPHER ALIMONTI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a District Court bench trial, the defendant was
convicted of larceny over $1,200 by false pretenses and placed
on three years of probation with a condition to pay the victims
$15,000 in restitution. On appeal, the defendant challenges the
sufficiency of the evidence and the order of restitution. We
affirm.
Discussion. 1. Sufficiency of evidence. We review the
denial of a motion for a required finding of not guilty to
determine "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To prove the crime of larceny by
false pretenses, the Commonwealth must establish that "(1) a
false statement of fact was made; (2) the defendant knew or
believed that the statement was false when he made it; (3) the
defendant intended that the person to whom he made the false
statement would rely on it; and (4) the person to whom the false
statement was made did rely on it and, consequently, parted with
property." Commonwealth v. Cheromcka, 66 Mass. App. Ct. 771,
776 (2006).
Here, the evidence presented by the Commonwealth at trial
allowed the judge to find that the defendant falsely represented
that he was a licensed home improvement contractor, and that he
knew this was a false statement when he made it. At their
initial meeting with the defendant, the homeowners specifically
asked whether he was licensed and insured. The defendant
responded, "Yes, absolutely." Nonetheless, he obtained a permit
using his brother's construction license and a forged signature
of the homeowner. Moreover, after the defendant ceased working
on the project, the homeowners attempted to investigate the
status of the defendant's contractor's license and found that he
received his license years after he worked on their project.
Additionally, the evidence allowed the judge to find that
the defendant falsely represented that he would start on a
project to build a cabana right away and that he knew this was a
2 false statement when he made it. The defendant said, "We got
about five days of good weather. If you give me 15,000 for the
cabana, I can start the cabana. We can get the footing and
foundation in, and I can always build it as the weather
changes." Although the defendant said he would start
immediately to take advantage of the good weather, he went to
Florida during the good weather and then blamed permitting
issues and poor weather conditions for putting off the cabana
project to the spring, ultimately never doing the project.
There was also evidence that the homeowners relied on these
false representations in giving the defendant $15,000. At their
initial meeting, the homeowners repeatedly asked the defendant
about his status as a licensed contractor, thereby demonstrating
the importance the homeowners placed on it. Additionally, the
parties discussed a range of renovation projects but drew up a
contract specifically regarding the cabana project with a
$15,000 deposit, again demonstrating the significance of getting
the cabana underway.
That the defendant intended the homeowners to rely on his
false representations can be inferred from his surreptitious
behavior. See Commonwealth v. Jerome, 56 Mass. App. Ct. 726,
732 (2002) (intent typically inferred from circumstantial
evidence). The defendant could have told the homeowners that he
needed to use someone else's license to get the permit but that
3 he could still do the job. He also could have told the
homeowners that, if the cabana project could not be started
right away, it would have to wait until the spring. But, if he
did so, the homeowners were not likely to have hired him and
parted with their $15,000. In addition to their insistence that
their contractor be licensed, the homeowners planned to move
into the house by mid-April and expected the construction to be
completed before they moved in. The evidence was sufficient to
allow the judge to find that every element of the charged
offense was proven.
On appeal, the defendant contends that the judge
erroneously inferred the defendant's intent to defraud from the
fact that the cabana was never completed. See Commonwealth v.
True, 16 Mass. App. Ct. 709, 711 (1983) (deception as to intent
cannot be inferred from mere nonperformance). He argues that
the defendant did substantial other construction work for the
homeowners such that it cannot reasonably be inferred that he
never intended to build the cabana. He likens this case to
Commonwealth v. Long, 90 Mass. App. Ct. 696, 701 (2016), where
this court reversed a conviction of larceny by false pretenses
on evidence that the defendant accepted a deposit and then began
a construction project but abandoned it. In that case, the
defendant made no particular representation except that implied
in the contract. In other words, by entering into a contract to
4 install windows, he promised that he would install windows.
After the relationship between the homeowners and the defendant
soured within a couple of days, the defendant stopped work and
gave the homeowners a final bill which included the cost of
windows that were never installed. We held that evidence was
insufficient to establish that the defendant harbored the intent
never to install the windows at the time he agreed to do so.
By contrast here, the defendant's representations went
beyond the implied promise to fulfill his contractual
obligations. Rather, there was evidence of specific
representations that the defendant must have known to be false
at the time he made them -- that he was a licensed contractor
and that he would start on the cabana right away to take
advantage of the good weather. Although the parties discussed
other renovation work, the only work that got reduced to writing
ahead of the work was the cabana. For the remaining work, the
defendant would simply ask for more money and the homeowners
would give it until they lost track of what expenditures were
associated with what work and had paid the defendant in excess
of $100,000.
At the homeowners' insistence for clarity, the defendant
prepared a document regarding the ongoing construction expenses
in the winter of 2018. Unbeknownst to the homeowners, however,
the contract filed with the building department in December 2017
5 listed a job valued at $182,000. That contract, which contained
a forged homeowner signature, had not been presented to the
homeowners. On these facts, the judge reasonably concluded that
the defendant's false representations concerning his licensing
status and the cabana project were made so that he could get
into the house for the more lucrative work. The evidence was
sufficient to allow the judge to conclude that the defendant
made knowingly false statements of fact intending to have the
homeowners rely on them and that the homeowners did rely on them
in parting with their $15,000. There was no error in the denial
of the defendant's motion for a required finding of not guilty.
2. Restitution. We review orders of restitution for abuse
of discretion or error of law. See Commonwealth v. Buckley, 90
Mass. App. Ct. 177, 180 (2016). An order of restitution is
limited to an amount of money that is both representative of the
actual loss suffered by the victim, and sufficiently documented.
Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001). The victim
cannot receive more than that proven amount. Commonwealth v.
Henry, 475 Mass. 117, 129 (2016). However, it is widely
accepted that "some degree of approximation" is permitted, and
that "mathematical precision" is not required. Buckley, supra
at 185.
In this case, the judge ordered the defendant to pay the
homeowners $15,000. Although the evidence showed that the
6 defendant obtained only $9,000 for the work he did not perform,
restitution for larceny is not limited to the amount stolen by
the defendant. See Commonwealth v. McIntyre, 436 Mass. 829, 835
(2002). Rather, restitution may include any economic losses "so
long as the restitution is significantly causally related to the
crime of conviction." Commonwealth v. Palmer P., 61 Mass. App.
Ct. 230, 232 (2004). Here, as stated, the defendant used his
false representations not only to obtain the $9,000 deposit but
also to get the victims to hire him for additional projects that
he failed to complete in a professional manner. The husband
homeowner testified that "a lot of things had to be changed" and
that he had to pay the subcontractors separately. The wife
homeowner testified that it ultimately would cost approximately
$17,000 to correct the additional work that the defendant
secured only through his criminal actions. Restitution of
7 $15,000 was well within the economic losses "causally related"
to the defendant's criminal conduct. Id.
Judgment affirmed.
By the Court (Ditkoff, Singh & Hodgens, JJ. 1),
Clerk
Entered: September 18, 2024.
1 The panelists are listed in order of seniority.