COMMONWEALTH v. FORD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial, the defendant, Michael D. Ford, was convicted of numerous crimes involving a stolen credit card.² On appeal, he contends that the evidence was insufficient, two convictions of one crime are duplicative of two convictions of another, the judge erred in instructing the jury, the Commonwealth's closing argument was improper, and he was prejudiced by testimony that was struck by the judge. We affirm.

Facts. The jury could have found the following facts. On February 15, 2017, the victim was attending an event at Boston University School of Law (school). He arrived at approximately 6 p.m., leaving his coat and briefcase on a rack in the lobby. He left the event sometime thereafter with his belongings. Upon arrival at a subway stop, he discovered that his wallet was missing. The victim had used his subway pass earlier that night en route to the school. He returned to the school and reported to police the missing wallet. The victim reported it was a brown Coach leather wallet containing his subway pass, his identification card, a restaurant gift card, an American Express credit card (last four digits 3002), an HSBC credit card, a Citizen's Bank debit card, and a small amount of cash. He valued the wallet at about $250. The victim learned that his credit cards had been used within the last hour at Nordstrom Rack. He called and canceled both cards.

Boston University Police Detective Billie Kanavich obtained video footage from security cameras at the school from February 15, 2017. The recordings showed a man, whom defense counsel conceded was the defendant, entering the school through the main entrance at 765 Commonwealth Avenue at 5:42 p.m. The defendant was carrying in his hands a winter hat with fur on the ear flaps and front, and wearing eyeglasses, a dark waist-length coat, a dark backpack with gray, vertical stripes on the straps, jeans, and dark shoes. The defendant is observed entering the school lobby. He removes his coat and backpack, and then walks out of view. The defendant is next seen again, without his belongings, entering the school through the same entrance at 5:52 p.m. He entered the lobby, gathered his belongings, and left again through the same doors at 5:56 p.m.

Kanavich also obtained video footage from Nordstrom Rack on the evening in question. The footage showed a man entering the store at 7:29 p.m. wearing a hat with fur on the ear flaps and front, eyeglasses, a dark waist-length coat, a dark backpack with vertical stripes on the straps, jeans, and dark shoes. He is seen shopping and then at a register buying several items between 7:45 p.m. and 7:48 p.m. At 7:47 p.m. at the register, the man removes a wallet from his pocket and uses something that appears to be a credit card for the purchases. When he starts to leave the store at 7:48 p.m., the door alarm sounds, and he returns to a register escorted by a store employee. At 7:51 p.m., the man leaves the store with his purchases.

Records from Nordstrom Rack revealed that five items worth $473.41 were purchased at 7:46 p.m. with an American Express credit card ending in 3002. A second record shows a purchase of a satchel which had activated the door alarm. The purchase was made at 7:50 p.m. for $138.09. The purchase of this satchel was also captured on video footage and it was made by the same man who made the prior purchase.

The defendant's face was clearly visible for much of the video footage at the school and at the store.

Discussion. Sufficiency of evidence. In assessing the sufficiency of the evidence, we ask “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” (emphasis omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Circumstantial evidence may be sufficient to prove guilt beyond a reasonable doubt, Commonwealth v. Grandison, 433 Mass. 135, 141 (2001), and the inferences drawn from such evidence “need not be necessary and inescapable, only reasonable and possible,” Commonwealth v. Goddard, 476 Mass. 443, 449 (2017), quoting Commonwealth v. Jones, 432 Mass 623, 628 (2000).

Receiving stolen property.³ The defendant claims that the evidence did not suffice to prove that he knew the wallet in his possession was stolen. We disagree. The Commonwealth argues that circumstantial evidence and “reasonable inferences” established the defendant's knowledge that the wallet was stolen. See Commonwealth v. Dellamano, 393 Mass. 132, 136 (1984) (“A person's knowledge ․ is a matter of fact ․ which may not be susceptible of proof by direct evidence”). While the defendant is correct that there is no direct evidence that he possessed the wallet, the evidence was sufficient to establish that he possessed a wallet with the victim's stolen American Express card. The short time that elapsed from the defendant entering the school to his purchases at Nordstrom Rack further supports the inference that he could not have obtained the stolen credit card without obtaining the stolen wallet. The fact that the defendant contends that he left the school before the victim arrived is of no moment as the Commonwealth only had to prove the defendant acquired possession or control of the wallet, not that he stole it. See Commonwealth v. Ramos, 470 Mass. 740, 750 (2015). Moreover, we view the timeline, and any discrepancies therein, in the light most favorable to the Commonwealth.

Credit card crimes. The defendant's claim that the evidence was insufficient for the convictions related to his use of the credit card fails for the same reason that the sufficiency of the receiving stolen property claim fails. To prove credit card fraud and the improper use of a credit card, the Commonwealth must prove that the defendant obtained something of value over $250. G. L. c. 266, § 37C.⁴ The defendant contends that the Commonwealth did not prove that he knew the credit cards were stolen, but on appeal, he fails to cite to any authorities in support of this claim. As such, it does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).⁵ Assuming it did, the possession of two stolen credit cards in another person's name used fewer than two hours after they went missing suffices to prove the defendant's knowledge. Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 569 & n.2 (2000).

Instead, the defendant contends that the Nordstrom Rack video footage was not clear enough to identify him as the person who used the victim's credit card. “Proof of the identity of the person who committed the offense may be established in a number of ways.” Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 483 (2010), quoting Commonwealth v. Davila, 17 Mass. App. Ct. 511, 512 (1984). The defendant does not cite, nor can we find, any case that holds that a video recording of someone committing a crime is insufficient to prove his identity. To the contrary, we have held that “videotapes are ‘on balance, a reliable evidentiary resource.’ ” Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294 (2006), quoting Commonwealth v. Harvey, 397 Mass. 351, 359 (1986). Whether or not the video footage was blurry does not affect the sufficiency analysis. Rather, it goes to the weight of the evidence. Moreover, the defendant's face is visible in both the Nordstrom Rack video footage and the school video, and his distinctive hat and backpack, along with his other clothing are identical to the clothing worn and carried by the person in both recordings. The jury could have reasonably found that the defendant was the person on the video recordings at the school and at Nordstrom Rack. See Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 163-164 (2019) (jury could reasonably conclude that defendant was individual in recording wearing distinctive clothing and closeness of timing to shooting).

Duplicative convictions. The defendant claims that his convictions of improper use of a credit card are duplicative of his convictions of credit card fraud. The defendant did not raise this issue in the trial court and thus we review to determine, if error, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Kelly, 470 Mass. 682, 699 (2015). The defendant concedes that the crime of credit card fraud has one element -- representing oneself as the cardholder -- that the crime of improper use of a credit card does not. In addition, the crime of improper use of a credit card contains an element -- knowledge that the card was taken from the cardholder -- that the crime of credit card fraud does not. Accordingly, the convictions are not duplicative. See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 188 (2015).

Jury instructions. The defendant claims that he is entitled to a new trial because during jury instructions, the judge said “the Commonwealth has established” instead of “the Commonwealth has to establish,” and the judge said “the Commonwealth has proved” instead of “the Commonwealth has to prove.” The defendant did not object to the instructions. Therefore we review to determine, if error, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464 (2013). We agree with the Commonwealth that these two statements amount to no more than the proverbial slip of the tongue. See Commonwealth v. AdonSoto, 475 Mass. 497, 511 (2016) (omissions during jury instructions that constituted “slip of the tongue” and not likely to mislead jury did not create substantial risk of miscarriage of justice); Commonwealth v. Rodriguez, 76 Mass. App. Ct. 59, 66 (2009) (judge's correction of his “slip of the tongue” did not improperly prohibit jury from considering defendant's intoxication in operating while under the influence case); Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 204 (2008) (“A mere slip of the tongue does not constitute a substantial risk of a miscarriage of justice”). “Our review of claimed jury instruction errors requires us to ‘evaluate the instructions as a whole, looking for the interpretation a reasonable juror would place on the judge's words.’ Commonwealth v. Trapp, 423 Mass. 356, 361, cert. denied, 519 U.S. 1045 (1996). ‘We do not consider bits and pieces of the instructions in isolation.’ Commonwealth v. Young, 461 Mass. 198, 207 (2012).” Arias, supra at 465. Here, there was no error, let alone a substantial risk of a miscarriage of justice.

Closing argument. The defendant argues that it was error for the prosecutor to argue in closing that the defendant was unconnected to the school. Because he did not object at the trial, we review to determine whether, if error, it created a substantial risk of a miscarriage of justice. Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017). Kanavich testified that to the best of her knowledge, “[the defendant] is not a student, nor was he a student.” The prosecutor's statement that the defendant “is not a student” was firmly grounded in the evidence. The prosecutor continued that the defendant was “not a resident” of the school. Whether this was a reasonable inference from Kanavich's testimony or not, it was a collateral issue that could not have affected the verdicts. See Commonwealth v. Goddard, 476 Mass. at 449-450; Commonwealth v. Bois, 476 Mass. 15, 33 (2016). There was no error.

Prejudicial testimony. Kanavich testified that the video recordings from the school and from Nordstrom Rack depicted the same person -- the defendant. The judge struck this testimony and sustained the defendant's timely objection. Notwithstanding, the defendant claims he was prejudiced by this struck testimony. Because the defendant objected to this testimony, we review for prejudicial error. See Commonwealth v. Pina, 481 Mass. 413, 429 (2019). Not only did the judge strike the testimony, but she also instructed the jury, on multiple occasions, to disregard any testimony she struck. Moreover, jurors are presumed to follow the instructions given. See Commonwealth v. Caldwell, 459 Mass. 271, 278 (2011). On this record, there was no prejudice.

Judgments affirmed.

FOOTNOTES

2.   The defendant was convicted of receiving stolen property over $250, credit card fraud under $250, credit card fraud over $250, two counts of receiving a stolen credit card, improper use of a credit card under $250, and improper use of a credit card over $250.

3.   The elements of receiving stolen property are that the defendant “received ․ property that was stolen ․; and ․ knew the property had been stolen.” Commonwealth v. Mauricio, 477 Mass. 588, 597 (2017).

4.   The statute was amended after the convictions at issue in this case to raise the value to $1,200. St. 2018, c. 69, §§ 143-144. The defendant also was convicted of the credit card crimes for something of value under $250. See G. L. c. 266, § 37B, and its amendment, St. 2018, c. 69, §§ 141-142.

5.   Now codified at Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1629-1630 (2019).