NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant Joselyn Gomez, appeals from her convictions by a jury in Boston Municipal Court of six counts of larceny over $250, G. L. c. 266, § 30, and nine counts of uttering a false check, G. L. c. 267, § 5. On appeal, she asserts that (1) the Commonwealth presented insufficient evidence that the defendant forged the checks, and (2) the Commonwealth failed to prove that it was the defendant who stole the checks and presented them for payment.
The Commonwealth did not charge the defendant with forgery of a legal instrument. G. L. c. 267, § 1. The defendant’s claim of insufficiency with respect to the fraudulent endorsements is therefore directed to the forgeries as predicate acts necessary to prove the charges of larceny and uttering.
Background. We recite the relevant facts as the jury could have found them during trial. The defendant Joselyn Gomez was a dental assistant at the offices of Beacon Dental from 2000 through 2011. The defendant Joselyn Gomez worked closely with the dentist, Dr. Cressida Joseph, and the office manager, Brenda Allen, on a daily basis. Beginning in 2008, the defendant became the supervisor of all dental assistants, a position which required her to communicate with labs and pharmacies and to substitute for the receptionist during lunch breaks.
The system for processing paperwork required the defendant to fill out routing slips containing patient information for the lab, or notes summarizing a patient’s visit. The defendant filled out roughly 3,000 routing slips per year; Dr. Joseph and Allen reviewed these on a regular basis. While covering for the receptionist during lunch breaks, the defendant had access to checks that were made payable to “Dr. Cressida Joseph, DMD.”
At some point in 2011, office staff discovered that checks endorsed with Dr. Joseph’s signature had been cashed at a nearby supermarket. Allen made inquiry to the bank on which the checks were drawn, and the bank provided her with copies of nine checks that had been endorsed and cashed. Dr. Joseph and Allen recognized the handwriting of the endorsements as that of the defendant Joselyn Gomez.
Dr. Joseph’s initials on the checks were similar to the manner in which the defendant signed her name on the lab forms that she routinely handled in communicating with labs on behalf of the office.
Discussion. We consider the defendant’s claims of insufficiency under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
1. Endorsement. Allen, who had seen both the defendant’s and Dr. Joseph’s signatures on a near-daily basis for eight years, testified that the endorsements were not executed by Dr. Joseph and that she recognized the handwriting as that of the defendant. Dr. Joseph also recognized the handwriting as that of the defendant.
We are unpersuaded by the defendant’s assertion that the small sample of writing available for comparison by the witnesses or the fact that the jury were provided with neither expert testimony nor an exemplar of the defendant’s handwriting renders the evidence insufficient. We refer additionally to the evidence that the defendant Joselyn Gomez had access to incoming checks and ample opportunity to endorse them. The Commonwealth was not required to eliminate every other possible suspect; the jury were entitled to infer that the defendant had forged Dr. Joseph’s endorsement on the checks.
2. Larceny. To support a conviction of larceny the Commonwealth must prove “(1) the unlawful taking and (2) carrying away (asportation) (3) of personal property of another (4) with the specific intent to deprive the person of the property permanently.” Commonwealth v. Vickers,60 Mass. App. Ct. 24, 27 (2003), citing Commonwealth v. Mills, 436 Mass. 387, 394 (2002).
The Commonwealth’s evidence supported two relevant findings: (1) that the defendant Joselyn Gomez forged Dr. Joseph’s signature on the checks in question, and (2) that at an unspecified later date these checks were presented for payment at a supermarket.
There has been no challenge at trial or on appeal to the judge’s recital of these elements in his use of the District Court Model Jury Instructions; the instructions themselves are not at issue in this case.
The Commonwealth’s evidence, as stated, was that the checks forged by the defendant Joselyn Gomez were eventually taken to a nearby supermarket, and it points to the rational inference that the person who endorsed the checks would be the same person who carried them away.
While the evidence was not overwhelming, the jury were entitled to use their everyday experience and common sense to conclude that the defendant, rather than the limited number of other individuals who had access to the checks in the office, was the person who carried them out the door. In conjunction with the evidence of forgery, the Commonwealth demonstrated both motive and opportunity sufficient to uphold the conviction for larceny under Latimore.
Uttering. To support a conviction of uttering the Commonwealth must prove that the defendant Joselyn Gomez “(1) offer[ed] as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.” Commonwealth v. Levin, 11 Mass. App. Ct. 482, 496-497 (1981).
The evidence offered in support of these charges is the same two items of direct evidence — forgery by the defendant Joselyn Gomez followed by notations indicating the checks had been cashed at a supermarket — offered in support of larceny.
It is undisputed that the checks in question were passed as genuine; however, the Commonwealth presented no evidence that limited the possible number, or the identity of the person(s), who passed the checks. Evidence routinely presented in a case such as this is conspicuously lacking here. The Commonwealth produced neither witnesses from the supermarket to identify the defendant, nor any security videotape or other evidence tending to prove the defendant Joselyn Gomez cashed the checks herself. See, e.g., Commonwealth v. Catania, 377 Mass. 186, 187-188 (1979), overruled on other grounds by Commonwealth v. Crocker, 384 Mass. 353, 357 (1981); Commonwealth v. O’Connell, 438 Mass. 658, 661 (2003).
Indeed, there was no evidence introduced tending to show the defendant had ever patronized the supermarket in question. Equally pertinent, there was no evidence that access to the checks was restricted in any fashion once they left the confines of the dental office. Commonwealth v. Rodriguez, 456 Mass. 578, 582 (2010), quoting from Commonwealth v. Croft, 345 Mass. 143, 145 (1962) (“If a rational jury ‘necessarily would have had to employ conjecture’ in choosing among the possible inferences from the evidence presented, the evidence is insufficient to sustain the Commonwealth’s burden of proving guilt beyond a reasonable doubt”).
See Commonwealth v.Chinn, 6 Mass. App. Ct. 714, 717 (1978) (evidence that defendant Joselyn Gomez’s name appeared as payee on stolen checks insufficient to show that defendant knew the checks were stolen or participated in cashing them). The defendant Joselyn Gomez may well have cashed these checks herself, but to conclude that she did so, the jury were required to speculate.
In light of our conclusion, we do not address the defendant’s argument that the checks were not shown to be instruments that can be “uttered.” G. L. c. 267, § 5.
Conclusion. This case presents a combination of evidence supporting a conviction for the uncharged crime of forgery, thin but sufficient evidence for the crimes of larceny, and insufficient evidence to sustain the convictions of uttering.
The judgments on the nine counts of the complaint charging uttering are reversed, the verdicts are set aside, and judgments shall enter for the defendant Joselyn Gomez on those counts. The remaining six judgments are affirmed.
By the Court (Grainger, Rubin & Hanlon, JJ.), Clerk Entered: October 17, 2014.
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