NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
22-P-210 Appeals Court
COMMONWEALTH vs. RACHELLE SCORDINO.
No. 22-P-210.
Middlesex. December 9, 2022. – May 12, 2023.
Present: Rubin, Massing, & D'Angelo, JJ.
Uttering Forged Instrument. Negotiable Instruments, Forgery. Forgery. Evidence, Intent. Intent. Practice, Criminal, Required finding.
Complaint received and sworn to in the Natick Division of the District Court Department on July 3, 2017.
The case was heard by David W. Cunis, J.
Laurie Yeshulas for the defendant. Daniel M. DeBlander, Assistant District Attorney, for the Commonwealth.
RUBIN, J. In this case we address the proof necessary to
support a conviction for uttering a false check ("uttering") in
violation of G. L. c. 267, § 5, beyond a reasonable doubt.
Concluding that the Commonwealth failed to meet its burden, we
reverse. 2
Background. The defendant was convicted of uttering after
a jury-waived trial. The facts adduced at trial, viewed in the
light most favorable to the Commonwealth, see Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979), were as follows. At
about 4:30 P.M. on May 11, 2017, the defendant entered a branch
of her own bank, Citizen's Bank, at the Stop & Shop supermarket
on Worcester Street in Natick, and, presenting her own valid
driver's license, cashed a check made payable to her in the
amount of $950. The check was drawn on the Citizen's Bank
account of one Phyllis Adams.
The following month, Adams noticed several checks that she
had not written were cashed against her account. She kept two
checkbooks for that account at her home in Natick. She
testified that no one had permission to sign checks from the
account on her behalf.1 Apparently checks from both checkbooks
were used without her authorization.
Adams did not sign the check the defendant cashed. Adams
did not know the defendant, nor had Adams ever seen her before.
And Adams had no reason to pay the defendant.
1 Evidence at trial, however, did indicate that the account was a trust account and that checks from one of the checkbooks show the names of both Phyllis Adams and John Douglas Adams in the top lefthand corner of the checks where account owner names and addresses typically appear. Nothing in our decision turns on this. 3
There was no evidence linking the defendant to Adams's home
or to any other unauthorized use of Adams's checks. There was
no evidence that the defendant was in possession of Adams's
checkbook at any point in time, or that she had any access to
it. In fact, the Commonwealth presented no evidence as to how
the defendant obtained the check. And, despite the fact that
several checks were missing, there was no evidence that the
defendant attempted to cash or did cash any other checks. There
was also no evidence that the check the defendant did cash was
altered in any way. On the contrary, from all appearances, the
check was written out to the defendant from Adams's account and
bore a signature that at least arguably looked like that of
Adams. There was no evidence that the defendant signed the
check.
Nor was there any evidence of consciousness of guilt. The
defendant's conduct at the bank was normal, offering little more
than a typical bank transaction. There was no evidence that the
defendant attempted to conceal her identity, alter her
appearance, or assume the identity of another while cashing the
check. She did not try to cash the check at a bank where she
was not a customer. And, the defendant did not make any
admissions that she knew the check was fraudulent. 4
The defendant appeals her conviction, arguing that the
evidence was insufficient to support it, a claim properly
preserved in the trial court.
Discussion. To support a conviction for uttering a false
check in violation of G. L. c. 267, § 5, the Commonwealth is
required to prove, beyond a reasonable doubt, each of the
following four elements: (1) that the defendant offered as
genuine; (2) an instrument; (3) she knew 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). On these facts, we are presented with
the following question: Is 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, sufficient to support a finding beyond a
reasonable doubt that the defendant knew the instrument was
forged and acted with an intent to defraud? We conclude it is
not.
It is not a crime to accept payment or funds from one
person with a check drawn on the account of another. Recipients
of such checks may not know, and may never have met, the
individual on whose accounts such checks are drawn. As an
example of such a transaction, the defendant put forward the
hypothetical of an attorney who is paid for services provided to 5
a client by a check drawn on the account of another person, such
as a friend or family member of the client. We have no doubt
that such an arrangement, permitted when consistent with the
requirements, including client consent, of Mass. R. Prof. C. 1.8
(f), as appearing in 471 Mass. 1349 (2015), is not out of the
ordinary. And if, in fact, such a check was presented but it
was stolen, as the check was here, the account holder would be
able to testify truthfully, as Adams testified here, not only
that he or she did not know the payee, but that he or she did
not owe the payee anything.
Nonetheless, consistent with the holdings of some courts in
other jurisdictions that have addressed the issue, we do not
think the recipients of such checks could be convicted for
uttering merely upon proof beyond a reasonable doubt, without
something more, that in the ordinary course they cashed a check
drawn on a stranger's account made out to them in an otherwise
unremarkable transaction at their own bank. We do not think the
recipient's conduct of cashing such a check would suffice to
demonstrate either an intent to defraud, or knowledge of
forgery, beyond a reasonable doubt. The Commonwealth must show
more. See, e.g., United States v. Barnes, 579 F.2d 46, 47 (7th
Cir. 1978) ("the mere passing of a counterfeit instrument,
without more, is insufficient in itself to establish beyond a
reasonable doubt that the defendant knew the instrument to be 6
counterfeit and thus passed it with intent to defraud"); Parks
v. State, 746 S.W.2d 738, 740 (Tex. Crim. App. 1987) ("This
Court has wisely held that intent or guilty knowledge cannot be
inferred from the mere passing of a forged instrument. Albrecht
v.
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
22-P-210 Appeals Court
COMMONWEALTH vs. RACHELLE SCORDINO.
No. 22-P-210.
Middlesex. December 9, 2022. – May 12, 2023.
Present: Rubin, Massing, & D'Angelo, JJ.
Uttering Forged Instrument. Negotiable Instruments, Forgery. Forgery. Evidence, Intent. Intent. Practice, Criminal, Required finding.
Complaint received and sworn to in the Natick Division of the District Court Department on July 3, 2017.
The case was heard by David W. Cunis, J.
Laurie Yeshulas for the defendant. Daniel M. DeBlander, Assistant District Attorney, for the Commonwealth.
RUBIN, J. In this case we address the proof necessary to
support a conviction for uttering a false check ("uttering") in
violation of G. L. c. 267, § 5, beyond a reasonable doubt.
Concluding that the Commonwealth failed to meet its burden, we
reverse. 2
Background. The defendant was convicted of uttering after
a jury-waived trial. The facts adduced at trial, viewed in the
light most favorable to the Commonwealth, see Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979), were as follows. At
about 4:30 P.M. on May 11, 2017, the defendant entered a branch
of her own bank, Citizen's Bank, at the Stop & Shop supermarket
on Worcester Street in Natick, and, presenting her own valid
driver's license, cashed a check made payable to her in the
amount of $950. The check was drawn on the Citizen's Bank
account of one Phyllis Adams.
The following month, Adams noticed several checks that she
had not written were cashed against her account. She kept two
checkbooks for that account at her home in Natick. She
testified that no one had permission to sign checks from the
account on her behalf.1 Apparently checks from both checkbooks
were used without her authorization.
Adams did not sign the check the defendant cashed. Adams
did not know the defendant, nor had Adams ever seen her before.
And Adams had no reason to pay the defendant.
1 Evidence at trial, however, did indicate that the account was a trust account and that checks from one of the checkbooks show the names of both Phyllis Adams and John Douglas Adams in the top lefthand corner of the checks where account owner names and addresses typically appear. Nothing in our decision turns on this. 3
There was no evidence linking the defendant to Adams's home
or to any other unauthorized use of Adams's checks. There was
no evidence that the defendant was in possession of Adams's
checkbook at any point in time, or that she had any access to
it. In fact, the Commonwealth presented no evidence as to how
the defendant obtained the check. And, despite the fact that
several checks were missing, there was no evidence that the
defendant attempted to cash or did cash any other checks. There
was also no evidence that the check the defendant did cash was
altered in any way. On the contrary, from all appearances, the
check was written out to the defendant from Adams's account and
bore a signature that at least arguably looked like that of
Adams. There was no evidence that the defendant signed the
check.
Nor was there any evidence of consciousness of guilt. The
defendant's conduct at the bank was normal, offering little more
than a typical bank transaction. There was no evidence that the
defendant attempted to conceal her identity, alter her
appearance, or assume the identity of another while cashing the
check. She did not try to cash the check at a bank where she
was not a customer. And, the defendant did not make any
admissions that she knew the check was fraudulent. 4
The defendant appeals her conviction, arguing that the
evidence was insufficient to support it, a claim properly
preserved in the trial court.
Discussion. To support a conviction for uttering a false
check in violation of G. L. c. 267, § 5, the Commonwealth is
required to prove, beyond a reasonable doubt, each of the
following four elements: (1) that the defendant offered as
genuine; (2) an instrument; (3) she knew 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). On these facts, we are presented with
the following question: Is 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, sufficient to support a finding beyond a
reasonable doubt that the defendant knew the instrument was
forged and acted with an intent to defraud? We conclude it is
not.
It is not a crime to accept payment or funds from one
person with a check drawn on the account of another. Recipients
of such checks may not know, and may never have met, the
individual on whose accounts such checks are drawn. As an
example of such a transaction, the defendant put forward the
hypothetical of an attorney who is paid for services provided to 5
a client by a check drawn on the account of another person, such
as a friend or family member of the client. We have no doubt
that such an arrangement, permitted when consistent with the
requirements, including client consent, of Mass. R. Prof. C. 1.8
(f), as appearing in 471 Mass. 1349 (2015), is not out of the
ordinary. And if, in fact, such a check was presented but it
was stolen, as the check was here, the account holder would be
able to testify truthfully, as Adams testified here, not only
that he or she did not know the payee, but that he or she did
not owe the payee anything.
Nonetheless, consistent with the holdings of some courts in
other jurisdictions that have addressed the issue, we do not
think the recipients of such checks could be convicted for
uttering merely upon proof beyond a reasonable doubt, without
something more, that in the ordinary course they cashed a check
drawn on a stranger's account made out to them in an otherwise
unremarkable transaction at their own bank. We do not think the
recipient's conduct of cashing such a check would suffice to
demonstrate either an intent to defraud, or knowledge of
forgery, beyond a reasonable doubt. The Commonwealth must show
more. See, e.g., United States v. Barnes, 579 F.2d 46, 47 (7th
Cir. 1978) ("the mere passing of a counterfeit instrument,
without more, is insufficient in itself to establish beyond a
reasonable doubt that the defendant knew the instrument to be 6
counterfeit and thus passed it with intent to defraud"); Parks
v. State, 746 S.W.2d 738, 740 (Tex. Crim. App. 1987) ("This
Court has wisely held that intent or guilty knowledge cannot be
inferred from the mere passing of a forged instrument. Albrecht
v. State [486 S.W.2d 97, 102 (Tex. Crim. App. 1972)]. Indeed,
to hold otherwise would create the danger that the unknowing and
accidental passing of a forged instrument could effectively
become a strict liability offense."). See also Commonwealth v.
Horton, 465 Pa. 213, 218 (1975) ("we also find unacceptable the
Commonwealth's intimation that the possession by a person in
appellant's circumstances of a check purportedly issued by a
defunct corporation supports the requisite guilty knowledge.
Experience teaches that all too frequently it is the poorer and
less trained citizen within our society who is victimized by
bogus schemes in which non-existent or defunct corporations are
used as ploys").
Of course, such recipients could put on a defense that
described their legitimate receipt of any such check. But a
defendant has no burden in a criminal prosecution, and the
defendant is not required to disprove any element of a charged
offense. The burden is always on the Commonwealth to prove each
element beyond a reasonable doubt. See Horton, supra at 218.
("we reject the Commonwealth's suggestion that an inference of
guilt can be drawn from Mrs. Horton's failure to explain her 7
possession of this check. To rule otherwise would permit the
prosecution to be relieved of its obligation to prove its case,
unaided by the defendant").
For evidence to be sufficient to meet the burden of proof
beyond a reasonable doubt it must be sufficiently probative to
demonstrate the truth of the proposition with the requisite
degree of certainty. Given the not uncommon circumstances in
which a person may be given a check drawn on a third party's
account, we do not think the inference of intent to defraud or
of knowledge of forgery from cashing such a check is
sufficiently strong, that, standing alone, cashing such a check
can support a finding beyond a reasonable doubt with respect to
those elements of uttering.
Consequently, the defendant's conviction must be reversed.
Judgment reversed.
Finding set aside.
Judgment for the defendant.