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

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14-P-1348 Appeals Court
COMMONWEALTH vs. LUIS BONILLA
No. 14-P-1348.
Suffolk. October 1, 2015. - March 30, 2016.
Present: Cypher, Milkey, & Hanlon, JJ.
Larceny. Uttering Forged Instrument. Practice, Criminal,
Required finding.
Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on March 5, 2013.
The case was tried before Raymond G. Dougan, Jr., J.
Edward Crane for the defendant.
Helle Sachse, Assistant District Attorney, for the
Commonwealth.
HANLON, J. Following a jury trial, the defendant, Luis
Bonilla, was convicted of larceny over $250 by a single scheme
(count 1), and uttering a false instrument (count 2); he was
sentenced to two one-year concurrent sentences to the house of
correction. On appeal, he argues that the evidence was
2
insufficient to support his convictions. We affirm the judgment
in part and reverse in part.
Background. On February 26, 2013, the defendant deposited
six $5,000 checks, one into each of six newly opened bank
accounts at Metro Credit Union, for a total amount of $30,000.
The next day, the defendant returned to Metro Credit Union and
withdrew $600 in cash, $200 from each of three of the new
accounts: $200 was the maximum amount available for each new
account until the original deposit checks cleared. Sometime
after the defendant withdrew the $600, Metro Credit Union was
informed that all six of the initial checks had been dishonored
and were being returned to the bank. Three of the returned
checks were drawn from the defendant's TD Bank account, which
had been opened only one week earlier; the other three checks,
from his East Boston Savings Bank account, were returned because
the account had been closed. Thereafter, the defendant made no
attempt to pay back the money he had withdrawn. In addition,
some of the identification information that the defendant had
provided to Metro Credit Union when he opened his accounts was
incorrect.1 Specifically, both the social security number and
mother's maiden name were incorrect.
1
The defendant did, however, provide his correct
Massachusetts identification card and address.
3
1. Larceny. In order to sustain a conviction for larceny,
the Commonwealth must prove "that a defendant took the personal
property of another without the right to do so, and 'with the
specific intent to deprive the other of the property
permanently.' Commonwealth v. Murray, 401 Mass. 771, 772
(1988)." Commonwealth v. Liebenow, 470 Mass. 151, 156 (2014).
Property, as defined by G. L. c. 266, § 30, includes an "order
or certificate." The defendant contends that the Commonwealth
failed to present sufficient evidence to prove his specific
intent to commit larceny. We disagree.
Viewing the evidence in the light most favorable to the
Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979), the jury permissibly could have found that the defendant
committed a larceny and that he had the specific intent to
deprive Metro Credit Union of its property permanently. We note
that the defendant left the bank with $600 in cash and failed to
cure the defects in the checks after they were returned to Metro
Credit Union. Cf. Commonwealth v. Klein, 400 Mass. 309, 312
(1987) (conviction of larceny pursuant to G. L. c. 266, § 37,
affirmed where inference of intent to defraud and knowledge of
insufficient funds where maker of returned check fails to cure
within two days). In addition, in finding fraudulent intent,
the jury reasonably could consider that the defendant was likely
to know that his closed and recently opened bank accounts did
4
not contain $30,000; that he opened six separate bank accounts
at the same time; and that he provided a false social security
number and a false maiden name for his mother. As "the
Commonwealth may rely on reasonable inferences drawn from
circumstantial evidence," the evidence here was sufficient to
convict the defendant of larceny over $250. Commonwealth v.
Degro, 432 Mass. 319, 325 (2000).
2. Uttering. The defendant next argues that the
Commonwealth failed to provide sufficient evidence to support a
conviction for uttering a false instrument. We agree. In order
to support a conviction for 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. O'Connell, 438 Mass. 658, 664 n.9
(2003), quoting from Commonwealth v. Levin, 11 Mass. App. Ct.
482, 496 (1981). See G. L. c. 267, § 5 ("Whoever, with intent
to injure or defraud, utters and publishes as true a false,
forged or altered record, deed, instrument or other writing
mentioned in the four preceding sections, knowing the same to be
false, forged or altered, shall be punished.").
Here, looking at the evidence in the light most favorable
to the Commonwealth, the defendant wrote and deposited checks
totaling $30,000 knowing that he did not have sufficient funds
to cover the checks. However, the checks were written from his
5
own accounts and they were not forged, false, or altered. That
is, the Commonwealth has not challenged the genuineness of the
checks themselves drawn on the defendant's accounts held at both
TD Bank and East Boston Savings Bank. Nor is there a dispute
about authenticity of the defendant's signature, which appears
on the front of each of the six checks presented for deposit.
The Metro employee, Ms. Romero, testified that the defendant
endorsed the back of the checks prior to her depositing each.
The Commonwealth invites us to construe § 5 broadly to
include the defendant's behavior. We decline. In a persuasive
case, the United States Supreme Court in Williams v. United
States, 458 U.S. 279, 284 (1982), held that writing a check with
knowledge that there are insufficient funds to cover it cannot
support a conviction for making false statements to a financial
institution, as "a check is not a factual assertion at all, and
therefore cannot be characterized as 'true' or 'false.'"
Additionally, "[a]s defined by the Uniform Commercial Code, a
check is simply 'a draft drawn on a bank and payable on demand,
which contains an unconditional promise or order to pay a sum
certain in money."2 Id. at 285 (citations omitted).3
2
In addition, Massachusetts has adopted the Uniform
Commercial Code's definition for a "check." See U.C.C. § 3-
104(2)(b) (1977).
3
See also Commonwealth v. Perez, 89 Mass. App. Ct. 51, 57-
58 (2016) (accepting reasoning of Williams in evaluating whether
6
Although Williams interprets a Federal statute, it is still
instructive, and the Massachusetts cases interpreting the
statute do not hold otherwise. Compare O'Connell, supra
(defendant convicted of uttering for forging his father's
signature on five checks); Commonwealth v. Gall, 58 Mass. App.
Ct. 278, 290 (2003) (defendant uttered falsified certificates of
insurance to clients showing proof of workers' compensation
coverage).
Finally, Massachusetts has a bad check statute, G. L.
c. 266, § 37, which permits the inference that the Legislature
did not intend for defendants to be punished under the uttering
statute for writing bad checks. "Under the rule of lenity, we
interpret ambiguous statutory language in a criminal defendant's
favor." Commonwealth v. Coppinger, 86 Mass. App. Ct. 234, 239
(2014). We are satisfied that there was insufficient evidence
to support the defendant's conviction for uttering.
The judgment on count 1, larceny over $250, is affirmed.
The judgment on count 2, uttering, is reversed, the verdict is
set aside, and judgment shall enter for the defendant.
So ordered.
statements included in bank withdrawal or deposit slips
constituted hearsay).