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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attempt to pay back the money he had withdrawn.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).
