Commonwealth v. Oliver ( 2023 )

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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).