DocketNumber: No. 02-P-806
Citation Numbers: 60 Mass. App. Ct. 374
Judges: Cowin
Filed Date: 1/29/2004
Status: Precedential
Modified Date: 6/25/2022
The defendant was convicted by a jury of identity fraud pursuant to G. L. c. 266, § 37E(¿), a relatively new offense inserted by St. 1998, c. 397, § 1, effective March 3, 1999.
1. Material facts. The jury could permissibly have found the following. On August 7, 2000, the defendant presented two checks for payment at a branch of Fleet Bank. The checks were payable to Mario Jaramillo and were payroll checks drawn on an account maintained by Printed Circuit Corporation, Jaramillo’s employer.
On cross-examination, the defendant elicited from two Commonwealth witnesses certain testimony of a partially exculpatory nature. Barbara Minkwitz, a senior investigator of the bank’s security division, testified without objection that she had learned through a contact at Printed Circuit Corporation that Jaramillo had given the checks to the defendant for cashing. Michelle O’Donnell, director of human resources at Printed Circuit Corporation, was permitted to testify that Jaramillo told her that he had endorsed the checks and given them to the defendant so that the defendant could cash the checks for him.
2. Discussion. General Laws c. 266, § 37E(6), provides: “Whoever, with intent to defraud, poses as another person without the express authorization of that person and uses such
There is no question that, at the time he presented the checks for payment, the defendant posed as Jaramillo. The jury could permissibly find that he altered both the alien identification card and the New Jersey driver’s license, and safely conclude therefrom that he attempted to convince bank representatives that he was in fact the payee of the checks. The jury were also warranted in finding that the defendant posed as Jaramillo in order to obtain something of value, namely, the proceeds of the checks. We need not address the troublesome question whether the Commonwealth proved beyond a reasonable doubt that the defendant acted with an intent to defraud,
Absent objection, the hearsay testimony of two witnesses repeating Jaramillo’s out-of-court statements was admissible for all purposes. See Commonwealth v. Carmona, 428 Mass. 268, 271 (1998). While the jury were not required to believe the hearsay that Jaramillo had given the checks to the defendant to cash, disbelief does not translate into evidence of the opposite. Particularly given the absence of evidence either that Jaramillo’s endorsement was forged or that the defendant stole the endorsed checks, the only finding on the subject that was permissible was that the effort of the defendant to cash the checks had been authorized.
This, of course, does not mean that Jaramillo necessarily authorized the defendant to assume his (Jaramillo’s) identity when presenting the checks to the bank. The “express authorization” referred to in the statute is an authorization to pose as another, not merely an authorization to undertake a transaction (here, the cashing of the checks). However, the absence of express authorization is an element of the offense on which the Commonwealth has the burden of proof.
Here, the Commonwealth presented evidence that the defendant had in his possession identification of Jaramillo that he had altered by affixing his own photograph. He used the altered identification to attempt to cash checks payable to Jaramillo that Jaramillo had endorsed in blank. As indicated, there was no evidence that the defendant stole either the checks or the identification, or that Jaramillo’s signatures endorsing the checks either were not genuine or were obtained by fraud or duress. Indeed, the defendant was permitted to introduce Jaramillo’s statement that he had given the checks to the defendant so that they could be cashed.
Thus, there was no direct evidence of an absence of express authorization. Any finding by the jury on that subject would
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
Required findings of not guilty were entered on charges of uttering a false instrument, G. L. c. 267, § 5, and forgery of an instrument, to wit, a check, G. L. c. 267, § 1.
The defendant had also been an employee of Printed Circuit Corporation.
Certain objections to O’Donnell’s testimony were sustained; one objection was overruled; and certain questions were asked without objection. The validity of the rulings is not at issue; the defendant elicited the testimony and the portion that was admitted is admitted for all purposes. See Commonwealth v. Carmona, 428 Mass. 268, 271 (1998).
It is also an offense under this section to use such personal identifying information to obtain, or attempt to obtain, any identification card or other evidence of the other person’s identity.
It is unclear to us what is required to show an “intent to defraud” in these circumstances. Certainly the defendant employed the misrepresentation as a means of persuading the bank to cash the checks, something it probably would not have done for someone it could not identify. On the other hand, there was little, if any, evidence from which the jury could infer that the