COMMONWEALTH v. BETHUNE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant, Allan D. Bethune, was convicted of larceny over $250 by false pretenses, pursuant to G. L. c. 266, § 30 (1). On appeal, he claims there was insufficient evidence to prove that he made a knowingly false statement and that he intended for the victim to rely on the false statement. He also claims that the judge improperly admitted irrelevant and prejudicial testimony, and that the prosecutor's closing argument was improper. We affirm.

Background. The jury could have found the following facts. In October 2011, the defendant approached a family member, D.S.,² and asked to borrow $50,000. He agreed to pay D.S.'s mortgage in return for the money. When asked about repayment, the defendant was “vague about it.” About a year later, C.K., a “good friend” of the defendant, loaned him $25,000 with the defendant promising to repay the money “within the next two weeks.” When C.K. asked about repayment, the defendant gave him two checks that were returned for insufficient funds.

In late December 2012, the defendant approached the victim, T.D. and asked T.D. to give him money. The defendant told T.D. that “he had a deal, that he had to get into it,” and asked whether T.D. could help him get into the deal. The defendant and T.D. were friends and neighbors. Their families socialized together and their children were very close. T.D. declined to provide any money at that time.

On January 15, 2013, the defendant again asked T.D. to help him get “into a deal that he had to get into,” and asked T.D. for $50,000. The next day, T.D. gave the defendant a cashier's check for the $50,000. The defendant promised to repay the money by June 25, 2013. The defendant did not provide any details regarding the deal, nor did he tell T.D. that he would use the money to pay off personal loans. He said that he would provide T.D. with paperwork in one or two days. T.D. believed that he would be paid back because they were friends and he trusted the defendant. He also believed that the defendant had sufficient assets to enable him to repay the money.³

Thereafter, the defendant never provided the promised paperwork and did not repay the money. Instead, the defendant used the money to pay off his personal debts. On the day he received the money from T.D., the defendant wrote a check to D.S. for $6,000. The next day, the defendant initiated a wire transfer to C.K. for $28,000. In addition, the defendant used the funds from T.D. to pay personal bills, ultimately reducing his account balance to zero.

On April 11, 2016, the defendant was interviewed by Lynnfield Police Sergeant Nicholas Secatore. He offered conflicting explanations of his initial intentions and the events that occurred after he received the money. The defendant told Sergeant Secatore that he originally intended to invest the funds that he received from T.D. -- potentially to T.D.'s ultimate benefit. He also said that his January 2013 transfers to D.S. and C.K. were made for the purpose of “cleaning [his] slate out, so everything was wide open for the whole year, for 2013.” Finally, the defendant stated that he told T.D. that he would invest the money -- “depending on what was going on with the stock market” -- and that T.D. would receive the proceeds.

Discussion. 1. Sufficiency of the evidence. We review the denial of a motion for a required finding of not guilty by determining “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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Here, the Commonwealth proceeded under a theory of larceny by false pretenses and was required to prove, beyond a reasonable doubt, 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. Occhiuto, 88 Mass. App. Ct. 489, 496-497 (2015), quoting Commonwealth v. Cheromcka, 66 Mas. App. Ct. 771, 776 (2006). The misrepresentation “need not be the sole or predominating motive that induced the victim to part with his money or property ․ [;] it is enough if [the statements] alone or with other causes materially influenced him to take the particular action.” Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426, 441 (1990), rev'd on other grounds, 409 Mass. 387 (1991), quoting Commonwealth v. Edgerly, 6 Mass. App. Ct. 241, 263 (1978).

To begin, the evidence was sufficient for the jury to find that the defendant's assertion that he needed the money because he had a “deal that he had to get into” was a false statement of fact. The defendant in fact took the money from T.D. and immediately used it to pay off other creditors, D.S. and C.K. This, together with the conflicting statements the defendant made to Sergeant Secatore sufficed to prove that the defendant knew the statement was false at the time it was made. See Commonwealth v. Reske, 43 Mass. App. Ct. 522, 525 (1997), quoting Commonwealth v. Morrison, 252 Mass. 116, 122-123 (1925) (“It is enough if all the circumstances considered together would warrant the jury in concluding that [the statement] was untrue”).

Moreover, the defendant intended for T.D. to rely on the false statements and T.D. did, in fact, so rely. Each time the defendant asked T.D. for money, he referenced a deal. At that time, the defendant owed $75,000 to D.S. and C.K., a check to C.K. had been returned for insufficient funds, and his account had a zero balance. The defendant's dire financial circumstances supported the inference that he believed he needed to mislead T.D. as to the purpose of the loan, and intended T.D. to rely on his false statements. See Commonwealth v. Jerome, 56 Mass. App. Ct. 726, 732 (2002) (evidence of intent can “be proved by inferences drawn from evidence of relevant circumstances”). The same facts support the inference that T.D. in fact relied on the false statements that the purpose of the loan was to get into a deal.

T.D.'s reliance on the defendant's false statements was further evidenced by his close, personal relationship with the defendant and their respective families, and his belief that the defendant had sufficient assets to repay him. It is not necessary for the Commonwealth to show that the defendant's misrepresentation was the sole reason that T.D. gave him the money, only that it was a “material factor” in his decision. Commonwealth v. Stovall, 22 Mass. App. Ct. 737, 742 (1986).⁴

2. Testimony from D.S. and C.K. The defendant claims that the testimony of D.S. and C.K regarding their loans to him was irrelevant and prejudicial. The Commonwealth counters that it was relevant to show the defendant's intent in making the false statement. We review to determine whether the judge abused his discretion, and if so, whether the defendant was prejudiced by it. See Commonwealth v. Wood, 90 Mass. App. Ct. 271, 275 (2016). “Evidence of prior bad acts is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as ․ intent.” Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). “Even if such evidence is relevant for other purposes, however, its probative value must not be outweighed by its prejudicial effect.” Id. “To be sufficiently probative the evidence must be connected with the facts of the case [and] not be too remote in time.” Commonwealth v. Butler, 445 Mass. 568, 574 (2005), quoting Commonwealth v. Barrett, 418 Mass. 788, 794 (1994). “Determinations of the relevance, probative value, and prejudice of such evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error.” Oberle, supra, quoting Commonwealth v. Robidoux, 450 Mass. 144, 158-159 (2007).

We discern no error in the admission of this testimony, as it was relevant and any prejudice to the defendant was outweighed by its probative value. The testimony was proof of the defendant's intent, an essential element of the crime.⁵ It also demonstrated the defendant's consciousness of guilt as reflected by the lies he told to each person to whom he owed money.

The judge instructed the jury that they were not to consider any references to other acts done by the defendant as evidence of his guilt, and that the verdict was to only relate to the charge contained in the complaint.⁶ A jury is presumed to follow the instructions given. See Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012).

3. Closing argument. The defendant claims that the prosecutor made improper remarks during closing argument when he said that the defendant created a “web of lies,” he “betrayed” his friend, and he “robb[ed] Peter to pay Paul.” Because the defendant did not object to the statements, “we review for any ‘substantial risk of miscarriage of justice,’ ” Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016), quoting Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), to determine “whether the result of the trial might have been different had the error not been made.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. LaFave, 430 Mass. 169, 174 (1999). The first two statements were fair inferences from the evidence and the last was in direct response to the defendant's closing argument. “Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Lugo, supra, quoting Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). “Prosecutors may ‘[argue] forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.’ ” Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 234 (2013), quoting Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). In addition, the judge instructed the jury that closing arguments are not evidence and, as such, mitigated any perceived prejudice. See Commonwealth v. Carriere, 470 Mass. 1, 19 (2014).

Judgment affirmed.

FOOTNOTES

2.   The defendant was married to D.S.'s niece.

3.   When T.D. gave the money to the defendant, he was aware that the defendant had real estate valued at $2 million.

4.   The defendant's contention that this is “merely a civil matter” is unavailing. “The wrong being punished is not merely a private one reflecting common practices in the business world. The Commonwealth's case ․ involved the use of an outright lie to obtain ․ the use of the victim's savings.” Stovall, 22 Mass. App. Ct. at 742-743.

5.   C.K.'s testimony that the defendant put him “through hell” was stricken from the record and thus does not constitute error.

6.   The judge did not give a limiting instruction at the time the evidence was proffered and neither party asked for one.