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15-P-925                                                 Appeals Court

                     COMMONWEALTH   vs.   DAMIEN LONG.


                              No. 15-P-925.

       Plymouth.        September 14, 2016. - November 23, 2016.

             Present:    Green, Wolohojian, & Massing, JJ.


Larceny. False Pretenses. Intent. Evidence, Intent.
     Practice, Criminal, Required finding.



     Complaint received and sworn to in the Plymouth Division of
the District Court Department on December 16, 2011.

       The case was tried before James M. Sullivan, J.


     Amy Muscato-Wolter for the defendant.
     Jessica Heaton, Assistant District Attorney, for the
Commonwealth.


       MASSING, J.    The defendant, Damien Long, prepared an

estimate to do some home improvement work for a married couple,

who owned a house in Marshfield.       He cashed their deposit check,

bought some supplies, performed a few days of minimal work that

was not to the homeowners' satisfaction, and then abandoned the

job.    A week later he slipped a final invoice under the door,
                                                                     2


purporting to show that the homeowners owed him money.    On those

facts, he was charged and convicted in District Court, after a

jury trial, of larceny over $250 by false pretenses.1    To sustain

the conviction, the Commonwealth was required to prove that at

the time the defendant promised the homeowners he would do the

work, inducing them to write him a check, he did so with the

intention of never performing the job.    Because we conclude that

the evidence did not establish that essential element of the

crime beyond a reasonable doubt, we reverse.

     Background.    We begin by summarizing the facts presented in

the Commonwealth's case-in-chief in the light most favorable to

the Commonwealth.   See Commonwealth v. Latimore, 378 Mass. 671,

677 (1979).   Joseph and Maryann Watts,2 the homeowners, wanted

new windows, new window sills, a new sliding door, and some

other minor improvements done on their house in Marshfield.

Joseph made some calls and eventually contacted the defendant.

On September 23, 2011, the defendant met the Wattses at their

house to discuss the work they wanted done.    They agreed on a


     1
       The complaint charged the defendant with larceny over $250
by false pretenses in violation of G. L. c. 266, § 34 and
§ 30(1).
     2
       The Wattses have two sons in their twenties and their
grandson lives with them. Joseph had taken early disability
retirement after thirty years as a police officer. Nothing in
the evidence indicates that the Wattses were unsophisticated,
elderly, or otherwise vulnerable victims.
                                                                   3


price of about $32,000 for the entire project, and Joseph gave

the defendant a check for $11,800, dated either September 25 or

26, 2011, as a down payment.   The deposit was for "purchasing

the windows and getting those in," as well as the "trim and all

that stuff [the defendant] need[ed] to finish it."    The

defendant cashed the check on September 26, 2011.

     The defendant had requested an estimate for seventeen

windows at the Home Depot store in Rockland on September 24,

2011.   Home Depot quoted him a price of $4,409.63, but he never

purchased the windows associated with that quote.    He did

purchase various other items including "steps, caulking, trays,

casings, brushes, drop cloths, [a] claw hammer, . . . a re-

framing nail gun; . . . adapters, portable work lights; . . .

various nails; . . . a steel door; [and] sponges."

     On September 26, 2011, the defendant and an assistant

installed some crown moldings in the house and put some plywood

under a countertop.   Joseph was not satisfied with how the

molding was installed, and Maryann left notes for the defendant

when he returned to the house the next day, communicating her

approval or disapproval of his work.   The defendant did no more

work on the house after September 27, 2011, and Joseph was

unable to reach him by telephone.

     The defendant never repaid the Wattses.   However, on

October 4, 2011, they received from the defendant a final
                                                                     4


invoice, labelled "Bid Memo," itemizing his charges, and some

receipts.   Accounting for his and his assistant's hourly wage

for three days of work, the purchase of windows and supplies,

the rental of a dumpster, and a ten percent cancellation fee,

the defendant's bill totaled $13,694.01.     Subtracting the

refunded dumpster rental fee and the original deposit, the

defendant claimed that the Wattses owed him $1,059.01.      Joseph

was able to return the steel door and some moldings with the

receipts the defendant left him.

     At the close of the Commonwealth's case, the defendant

moved for a required finding of not guilty.3    The judge denied

the motion.

     The defendant, who testified in his own defense, recounted

that Joseph had hired him for numerous projects, including

replacing the interior trim and exterior trim, "[t]he island,

screen door, a few interior doors and a few other projects as

well."   Joseph gave him a deposit for "[a]ll the various

materials [he] needed" for those projects.     The defendant went

to stores and took pictures of various materials, which he sent


     3
       The prosecutor argued that "the Defendant contracted with
the [Wattses] to get windows, amongst other things. But windows
were never had." Referring to the final invoice, the prosecutor
continued, "It's clear that he wasn't going to get the windows.
He didn't get the windows. And in fact, he tried billing more
afterwards with the intent to dupe them because he never
intended to go in and do the work."
                                                                    5


via text message to Maryann for her approval.    On his first day

of work the defendant put up pieces of molding in certain rooms

as Maryann directed and removed planks and supports from the

deck.

     When he arrived for the second day of work, Maryann had

left him notes with various instructions.    The defendant made a

trip to Home Depot for more supplies, including windows, some of

which had to be special ordered from the Home Depot store in

Quincy,4 and removed and reframed a fan vent in the house.     On

day three, the defendant installed a storm door in the front of

the house, removed old moldings, stripped the island and

installed plywood and moldings around it, and adjusted some

kitchen cabinets.    Maryann appeared happy with the defendant's

work.    However, the next day, after a carpenter friend had

criticized the defendant's work, the Wattses asked him to leave

all the materials on site, refund any unspent deposit money,

provide receipts for everything he purchased, and itemize the

hours he spent on the project.    The defendant made a few

attempts to drop off the windows he had ordered, but because the




     4
       The defendant introduced in evidence receipts dated
September 26, 2011, from the Home Depot stores in Rockland and
Quincy, as well as receipts dated September 26 and 27, 2011,
from the Lowe's store in Pembroke. He did not produce receipts
for the windows, but testified he had given them to Joseph.
                                                                         6


Wattses were not at home, he returned them.    He did not

reimburse the Wattses for the returned windows.

    The Commonwealth called Maryann as a rebuttal witness.         Her

testimony was similar to that of her husband in terms of the

initial contact with the defendant.    She stated that the deposit

was mainly for the windows and trim around the windows, although

they had "discussions about other little things" like trim work

inside the house.    Maryann acknowledged having received pictures

of moldings for her approval via text message from the defendant

on more than one occasion.

    Over the three days the defendant was on the job, he put up

some moldings in one room, put plywood under a center island in

the kitchen, and did some work on the kitchen cabinets.      He did

not move the fan vent or do any work outside the house.      The

slow pace of the work concerned her.    On the third day, the

defendant asked Maryann for an additional $13,000, which she

refused.   She never heard from him again, but his assistant slid

a manila envelope under her front door on October 4, 2011.         The

defendant had left a metal door and some wood at the house.

    Discussion.     We review the denial of a motion for a

required finding of not guilty to determine "whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."
                                                                     7


Latimore, 378 Mass. at 677, quoting from Jackson v. Virginia,

443 U.S. 307, 319 (1979).   "To make this determination, we look

only to the evidence presented by the Commonwealth, and

disregard any contrary evidence presented by the defendant."

Commonwealth v. Platt, 440 Mass. 396, 400-401 (2003).     "[I]t is

not enough for the appellate court to find that there was some

record evidence, however slight, to support each essential

element of the offense; it must find that there was enough

evidence that could have satisfied a rational trier of fact of

each such element beyond a reasonable doubt."    Latimore, 378

Mass. at 677-678.   "[I]nferences drawn [from the evidence need

not be] necessary inferences.   It is enough that from the

evidence presented a jury could, within reason and without

speculation, draw them."    Commonwealth v. Gonzalez, 47 Mass.

App. Ct. 255, 257 (1999).   Nevertheless, "if, upon all the

evidence, the question of the guilt of the defendant is left to

conjecture or surmise . . . a verdict of guilty cannot stand."

Commonwealth v. Louis Constr. Co., 343 Mass. 600, 606 (1962),

quoting from Commonwealth v. O'Brien, 305 Mass. 393, 401 (1940).

    General Laws c. 266, § 34, as appearing in St. 2010,

c. 258, § 10, provides, "Whoever, with intent to defraud and by

a false pretence, induces another to part with property of any
                                                                    8


kind . . . shall be guilty of larceny."5    "Prosecution for

larceny by false pretenses requires proof that (1) a false

statement of fact was made; (2) the defendant knew or believed

that the statement was false when he made it; (3) the defendant

intended that the person to whom he made the false statement

would rely on it; and (4) the person to whom the false statement

was made did rely on it and, consequently, parted with

property."   Commonwealth v. Cheromcka, 66 Mass. App. Ct. 771,

776 (2006), quoting from Commonwealth v. Williams, 63 Mass. App.

Ct. 615, 620 (2005).6

     At issue in this case is the sufficiency of the evidence of

the defendant's intent to defraud the Wattses, specifically

element two, that the defendant's representations to the Wattses

were false when he made them.    With respect to that element,

timing is critical.     "A defendant . . . cannot be convicted of

larceny by false pretenses absent proof of an intention to

deprive at the time of the representation."     Cheromcka, supra at

     5
       The general larceny statute, G. L. c. 266, § 30(1), as
amended by St. 1945, c. 282, § 2, similarly provides, "Whoever
. . . with intent to defraud obtains by a false pretence . . .
the property of another . . . shall be guilty of larceny."
     6
       The judge's charge to the jury included those elements,
with the additional element that the value of the property must
exceed $250. We review the evidence in light of the theory of
the crime on which the jurors were instructed. See Commonwealth
v. Mills, 436 Mass. 387, 398-399 (2002). We express no opinion
whether the facts of this case would support an alternate theory
of larceny.
                                                                     9


782.   "While deception as to a person's present intention to

perform a promise may be the basis of a conviction of larceny by

false pretenses, such deception cannot be inferred from the mere

nonperformance of the promise."     Commonwealth v. True, 16 Mass.

App. Ct. 709, 711 (1983) (citations omitted).     See Cheromcka,

supra at 782 ("A mere failure to fulfil a promise does not

constitute a misrepresentation").    Therefore, "we must look to

see what evidence, other than the defendant's failure to

perform, was elicited to show that he anticipated that he would

not perform his promise" (emphasis supplied).     True, supra at

712.   "We recognize that . . . intent often cannot be proved by

direct evidence, but instead must be proved by inferences drawn

from evidence of relevant circumstances."     Commonwealth v.

Oliver, 60 Mass. App. Ct. 770, 776 (2004), quoting from

Commonwealth v. Jerome, 56 Mass. App. Ct. 726, 732 (2002).

       The evidence does not show that the defendant intended not

to perform any work at the time he entered into the agreement

with the Wattses.   Implicitly conceding this point, the

Commonwealth narrowed the focus of its proof to the defendant's

failure to purchase or install windows.     That is, the

Commonwealth contended that when the defendant entered into the

agreement with the Wattses, although he may have intended to do

some work for them, he never intended do the window work.       In

that regard, the evidence showed that the defendant gave an
                                                                    10


estimate for work that would total about $32,000.    He obtained a

quote from the Rockland Home Depot store to purchase seventeen

windows for $4,409.63.    He then accepted the Wattses' $11,800

check for "purchasing the windows and getting those in."

However, he never delivered the windows, never did any work

towards installing them, and never repaid the Wattses the quoted

purchase price.

    While that evidence does show that the Wattses paid for

windows they never received, in our view it falls short of

establishing that, from the beginning, the defendant never

intended to purchase and install the windows.    "Where, as here,

a specific intent is an element of the crime charged, that

intent must be proved."    Commonwealth v. Carter, 306 Mass. 141,

149 (1940).   In many cases, the defendant's intent can be

inferred from his acts.    But here, the defendant's acts merely

show nonperformance of a contract, which is not a crime.      Where

"the acts performed by [the defendant], in and of themselves,

are as susceptible of the conclusion that they were performed

for a lawful purpose as for an unlawful one, the record must be

searched, if a finding of guilt is to be upheld, for some

evidence of the defendant's intent to commit the crime charged."

Id. at 149-150.   See Louis Constr. Co., 343 Mass. at 606;

Commonwealth v. McCauliff, 461 Mass. 635, 642 (2012).    We

conclude that "the sparse evidence introduced at trial . . . was
                                                                  11


too meager to justify the inference that the defendant harbored

the requisite intent at the relevant time."    Commonwealth v.

Oliver, 443 Mass. 1005, 1005 (2005).

    Conclusion.     Not every private fraud warrants criminal

prosecution.   See Commonwealth v. Drew, 36 Pick. 179, 185

(1837).   Absent proof of a present intent to defraud when the

defendant first agreed to perform home improvement work for the

Wattses, his conviction for larceny by false pretenses cannot

stand.    "We think this case . . . is one where the buyer[s']

remedy is civil not criminal."    True, 16 Mass. App. Ct. at 713.7

                                     Judgment reversed.

                                     Verdict set aside.

                                     Judgment for defendant.




    7
       Because we conclude that the defendant was entitled to a
required finding of not guilty, we do not reach the other issues
he raises on appeal.
