Commonwealth v. Oliver

• Court: Massachusetts Appeals Court
• Decided: May 15, 2023
• Docket: AC 22-P-162
• Status: Published

Opinion

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22-P-162 Appeals Court

COMMONWEALTH vs. DOMINIQUE M. OLIVER.

No. 22-P-162.

Middlesex. January 5, 2023. - May 15, 2023.

Present: Ditkoff, Singh, & Grant, JJ.

Uttering Forged Instrument. Negotiable Instruments, Forgery. Forgery. Evidence, Intent. Intent. Practice, Criminal, Required finding.

Complaint received and sworn to in the Malden Division of the District Court Department on March 6, 2019.

The case was tried before William G. Farrell, J.

Joshua M. Daniels for the defendant. Lindsay Russell, Assistant District Attorney, for the Commonwealth.

DITKOFF, J. The defendant, Dominique M. Oliver, appeals

from a conviction, after a District Court jury trial, of

uttering a false check, in violation of G. L. c. 267, § 5.1 We

1 The jury acquitted the defendant of larceny by check, G. L. c. 266, § 37, a crime that requires proof that the defendant knew there were insufficient funds to pay the check. 2

conclude that the jury reasonably found that the defendant knew

that the check she cashed was forged, based on evidence that it

was apparent that the signature on the forged check did not

match the name of the purported maker, combined with the

defendant's use of the drawee bank to obtain a large amount of

cash. Further concluding that the trial judge properly used the

model jury instructions, we affirm.

1. Background. a. The Commonwealth's case. At 12:45

P.M. on January 19, 2019, the defendant entered the Malden

branch of the Salem Five Cents Savings Bank (Salem Five Bank).

She approached the counter and presented a check for $3,600 to

the teller. The check was a Salem Five Bank check made out to

the defendant on the joint account of Dr. Thomas Mahoney and his

wife, Eileen Mahoney, a retired nurse. The check purported to

be signed by Eileen.2 Unlike the signatures on many checks, this

signature was clear and legible, with each letter easily

See Commonwealth v. Littles, 477 Mass. 382, 384-385 (2017). The record does not reflect why the Commonwealth proceeded on this plainly inapplicable charge instead of seeking a complaint for larceny under G. L. c. 266, § 30 (1). This is an example of a failure to consider whether the complaint as sought by the police officer properly reflects the crimes supported by the facts alleged, a review that ought to be undertaken by a prosecutor at arraignment.

2 Because the Mahoneys "share a last name, we refer to them by their first names." Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 504 n.3 (2022). 3

discernable.3 Eileen's name, however, was misspelled; the

spelling did not match her printed name on the check.

The defendant endorsed the check with her signature. She

presented her genuine Massachusetts driver's license to the

teller and "successfully withdr[ew]" the funds. A Salem Five

Bank complaint manager testified that the process for cashing a

check involved obtaining identification for the person cashing

the check and checking to see whether the "customer is on the

OFAC list."4 As described by the bank manager, the process for

cashing a check did not include an evaluation of the signature

on the check.

This check was numbered 9824; the other checks drawn on the

Mahoneys' account from that time period all were numbered

between 1551 and 1786. With the sole exception of an electronic

mortgage payment, no other check from this time period exceeded

$800.

3 Interestingly, Eileen's signatures on her legitimate checks were also clear and legible, though of course properly spelled and completely unlike the signature on the check presented by the defendant. Eileen credited this to her use of the Palmer method of penmanship, which, as Eileen testified, "[t]hey don't teach . . . anymore." See State v. Gomes, 690 A.2d 310, 320 n.3 (R.I. 1997).

4 This refers to the United States Treasury Department's Office of Foreign Assets Control's "Specially Designated Nationals & Blocked Persons List," Cortez v. Trans Union, LLC, 617 F.3d 688, 696 (3d Cir. 2010). 4

As it happened, the Mahoneys' Social Security and annuity

payments had been electronically deposited on January 16, so

there were adequate funds to cover the withdrawal. Over the

course of the next week, the account was depleted through

legitimate transactions. Perhaps because the Mahoneys had been

customers for over forty years, the bank kindly honored the

checks that drew on insufficient funds and notified Eileen by e-

mail that her account had been depleted.

Eileen went to the bank, where an employee showed her the

$3,600 check. The employee also showed her a photograph of the

defendant’s cashing the check. Eileen reported the check forged

(signing the report with her neat and legible signature) and

notified the police. At trial, Eileen testified that she did

not sign the $3,600 check and did not know any person by the

defendant's name.

The defendant elicited from Eileen that, at some point in

2019, the daughter of a visiting aide from the Veterans

Administration stole a check from her and "was enhancing the

check." There was no evidence when this occurred in relation to

January 19, 2019.5

5 The defendant later testified that she did not know anyone by the name of this daughter. 5

b. The defendant's case. The defendant testified and

admitted to cashing the check. She stated that she had received

the check from Yolanda Morris as payment for four to five months

of caring for Morris's wheelchair-bound son, who was the victim

of a shooting. She testified that she did not notice that the

check was not drawn from Morris's account. She stated that she

"did not observe the check prior to cashing it" because "it was

COVID"6 and she "was excited."

2. Sufficiency of the evidence. a. Standard of review.

"When reviewing the denial of a motion for a required finding of

not guilty, 'we consider the evidence introduced at trial in the

light most favorable to the Commonwealth, and determine whether

a rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.'" Commonwealth v.

Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting

Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018).

"The inferences that support a conviction 'need only be

reasonable and possible; [they] need not be necessary or

inescapable.'" Commonwealth v. Lagotic, 102 Mass. App. Ct. 405,

407 (2023), quoting Commonwealth v. Ross, 92 Mass. App. Ct. 377,

378 (2017). "Because the defendant moved for a required finding

6 Obviously, January 2019 was well before the COVID-19 pandemic began, even in China. See Desrosiers v. Governor, 486 Mass. 369, 370 (2020), cert. denied, 142 S. Ct. 83 (2021). 6

of not guilty at the close of the Commonwealth's case, we review

the sufficiency of only the evidence presented at the time the

Commonwealth rested after its case-in-chief." Commonwealth v.

Carrillo, 483 Mass. 269, 271-272 (2019).7

b. Uttering. "In order to support a conviction of

uttering, the Commonwealth must show that the defendant

'(1) offer[ed] as genuine; (2) an instrument; (3) known to be

forged; (4) with the intent to defraud.'" Commonwealth v.

Bonilla, 89 Mass. App. Ct. 263, 265 (2016), quoting Commonwealth

v. O'Connell, 438 Mass. 658, 664 n.9 (2003). Accord

Commonwealth v. Stirlacci, 483 Mass. 775, 789 (2020). There is

no challenge to the sufficiency of the evidence on the first two

elements. Rather, the defendant challenges the sufficiency of

the Commonwealth's evidence that the defendant knew the check

was forged, an argument that goes to the third and fourth

elements.8

7 Ordinarily, we would also "consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case." Ross, 92 Mass. App. Ct. at 379, quoting Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006). Here, the defendant properly makes no claim that the evidence deteriorated during the defense case, as the jury were entitled to disbelieve the defendant's testimony. See Ross, supra at 381.

8 Although a defendant could intend to defraud without knowing that the check was forged, see, e.g., Bonilla, 89 Mass. App. Ct. at 264-265, here the Commonwealth's proof of intent to 7

"Knowledge is a question of fact, and proof is frequently

made by inference from the facts and circumstances developed at

trial." Commonwealth v. Tavares, 87 Mass. App. Ct. 471, 475

(2015). In the context of knowledge of forgery (as in all

contexts), "[c]ircumstantial evidence is competent to establish

guilt beyond a reasonable doubt." Commonwealth v. Murphy, 70

Mass. App. Ct. 774, 777 (2007), quoting Commonwealth v. Merola,

405 Mass. 529, 533 (1989).

We do not write on a blank slate. In Commonwealth v.

Scordino, 102 Mass. App. Ct. , (2023), we concluded that

"evidence that a defendant in an otherwise unremarkable bank

transaction who cashed a check from a person who did not know

the defendant and did not owe the defendant money, alone" is not

"sufficient to support a finding beyond a reasonable doubt that

the defendant knew the instrument was forged and acted with an

intent to defraud."

Here, the Commonwealth presented more than the mere fact of

the defendant's cashing a check purportedly made by a person who

did not know the defendant and did not owe her money. First,

and most important, the evidence of forgery was apparent from

the face of the check. Eileen Mahoney's name is misspelled in

defraud depended on its proving that the defendant knew the check was forged. See O'Connell, 438 Mass. at 664. 8

the signature line, and the misspelling is obvious because the

name is spelled differently than in the printed name on the

check. As mentioned, this is not a case where the misspelling

is debatable because the signature is sloppy or otherwise

unreadable. Here, the signature is neat and precise, and every

letter can be read with ease. Because the forgery was patent on

the face of the check that the defendant presented, the jury

could reasonably infer that she knew of the forgery. See

Tavares, 87 Mass. App. Ct. at 475 (sufficient evidence where

counterfeit bills "were patently fake in appearance"). Accord

State v. Gantt, 504 S.W.2d 295, 298, 300 (Mo. Ct. App. 1973)

(sufficient evidence where, inter alia, purported maker's first

name was misspelled); Mooney v. State, 888 S.W.2d 182, 184 (Tex.

Ct. App. 1994) (sufficient evidence where "alteration was

apparent"); State v. Kilhstrom, 988 P.2d 949, 953 (Utah App.

1999) (sufficient evidence would exist where "the signature does

not match the name printed on the check").

To be sure, it is possible that a person could fail to

notice that the signature on a check did not match the name on

the check, even where the signature is as clear and legible as

in this case. Indeed, the defendant could argue (even without

testimony from the defendant, as here) the improbable

proposition that the defendant cashed the check without ever

looking at it. The jury, however, were not required to draw 9

either of those inferences. Rather, "the inferences a jury may

draw need only be reasonable and possible and need not be

necessary or inescapable." Commonwealth v. Kapaia, 490 Mass.

787, 791 (2022), quoting Commonwealth v. West, 487 Mass. 794,

800 (2021). Among those reasonable inferences is that a person

looks at a check before cashing it, especially where, as here,

the check was for a large amount.

Second, the evidence at trial was that a check could be

deposited into a bank account by a mobile deposit or at an

automated teller machine, but that receiving cash for it

required going to the bank in person and presenting

identification. The defendant went to the bank that the check

was drawn on, presented a driver's license, and "successfully

withdr[ew]" $3,600 from the account. Unlike in Scordino, 102

Mass. App. Ct. at , where the defendant went to her own bank

and cashed a much smaller check, here the jury could reasonably

infer that the defendant's use of the drawee bank to secure

immediate possession of a large amount of cash supported the

inference that she knew that the check was forged. See State v.

Torres, 111 Conn. App. 575, 583-584 (2008) (circumstances of

withdrawal of cash created inference of knowledge that check was

forged); Huntley v. State, 4 S.W.3d 813, 815 (Tex. Ct. App.

1999) (en banc) (amount of check contributed to sufficiency as

it is "unlikely that appellant would have been given such a 10

large check by a stranger"). The evidence here was more than an

"unremarkable bank transaction [by a defendant] who cashed a

check from a person who did not know the defendant and did not

owe the defendant money," Scordino, supra at , and was

sufficient to allow a reasonable jury to conclude that the

defendant knew that the check she cashed was forged.

3. Jury instructions. "Judges have broad discretion in

framing jury instructions, including determining the appropriate

degree of elaboration." Commonwealth v. Toolan, 490 Mass. 698,

708 (2022). "When reviewing jury instructions, we 'evaluate the

instruction as a whole, looking for the interpretation a

reasonable juror would place on the judge's words.'"

Commonwealth v. Fan, 490 Mass. 433, 453 (2022), quoting

Commonwealth v. Odgren, 483 Mass. 41, 46 (2019). "Due to the

defendant's failure to object to the jury instructions given at

trial, our review is limited to determining whether any error in

the instructions gave rise to a substantial risk of a

miscarriage of justice." Commonwealth v. Taranovsky, 93 Mass.

App. Ct. 399, 405 (2018).9

9 Unlike with the sufficiency of the evidence, in determining whether a substantial risk of a miscarriage of justice exists, "[w]e review all of the evidence and the case as a whole," not just the Commonwealth's case. Commonwealth v. Lapointe, 55 Mass. App. Ct. 799, 807-808 (2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005). 11

Here, following Instruction 8.240 of the Criminal Model

Jury Instructions for Use in the District Court (2009), the

trial judge instructed the jury that, to prove the third element

of uttering, the Commonwealth had to prove beyond a reasonable

doubt "that the Defendant knew [the check] was falsely made,

forged or altered." This instruction adequately conveyed the

requirement that the Commonwealth prove that the defendant knew

that the check was forged. See Commonwealth v. Reddy, 85 Mass.

App. Ct. 104, 112-113 (2014), quoting Commonwealth v. Walker,

421 Mass. 90, 100 (1995) ("The trial judge did not give the

general knowledge instruction in the model jury

instructions. . . . [T]he 'charge, as a whole, adequately

covered the issue'"). There was no error.

Judgment affirmed. 1

SINGH, J., (concurring). I agree that the defendant's

conviction for uttering should be affirmed.

In my view, evidence that the victim did not know the

defendant and had no reason to be paying her money is sufficient

to create a reasonable inference that the defendant knew the

check was a forgery. That view, however, is foreclosed by this

court's holding in Commonwealth v. Scordino, 102 Mass. App.

Ct. , (2023). There, the court relied on a handful of

cases that recite that guilty knowledge cannot be inferred from

the mere passing of a forged instrument.1 However, evidence that

the victim has no relationship to the defendant is more evidence

than the mere passing of a forged instrument. Where the account

1None of those cases involved the issue presented in Scordino. In both Parks v. State, 746 S.W.2d 738, 741 (Tex. Crim. App. 1987), as well as in the case it relies on, Albrecht v. State, 486 S.W.2d 97, 102-103 (Tex. Crim. App. 1972), the court held that evidence that the defendant committed other offenses was relevant and admissible to prove guilty knowledge in the trial of a forgery offense. In United States v. Barnes, 579 F.2d 46, 47-48 (7th Cir. 1978), the court held that evidence that the defendant admitted to having filled out money orders in the name of a fictious payee was sufficient to establish his guilty knowledge. In Commonwealth v. Horton, 465 Pa. 213, 218 (1975), the court held that evidence that the defendant passed a check from a defunct corporation was insufficient to establish that she knew the check was worthless where she was merely the payee and not the account holder. Each case cited the uncontroversial proposition that guilty knowledge cannot be inferred from the mere passing of a forged or worthless instrument. Yet none of them supports the proposition that evidence that the account holder has no relationship to the defendant is insufficient to create a reasonable inference of guilty knowledge. 2

holder testifies that she has no relationship with the

defendant, it is a reasonable inference that the defendant knows

that the account holder has no reason to be paying the defendant

and so must know that the check is not genuine. This is the

prevailing view in jurisdictions that have considered the

precise issue.2

But for this court's decision in Scordino, I would affirm

based on the reasonable inference to be drawn between the lack

of any relationship between the account holder and the

defendant, without the need for any additional justification.

2 See, e.g., Commonwealth v. Green, 203 A.3d 250, 255 (Pa. Super. Ct. 2019) (en banc) (fact that defendant never worked for company and had no reason to receive check from it was circumstantial evidence that defendant "knew [company] would not have his name and address for payroll or other payment purposes, and knew that he would not be a payee on a genuine [company] check for nearly $500.00"); Johnson v. State, 425 S.W.3d 516, 521-522 (Tex. Ct. App. 2012) (discussing line of cases finding that evidence of no relationship between defendant and account holder creates inference that defendant knows he has no reason to be paid by account holder and so must know check is forgery); State v. Williams, 712 P.2d 220, 223 (Utah 1985) (where victim testified that he did not know defendant or have any reason to pay him any money, reasonable inference was that defendant knew check was forged).