COMMONWEALTH v. FRANKS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the District Court, the defendant was convicted of larceny under $1,200 in violation of G. L. c. 266, § 30 (1).² The conviction was based on evidence that the defendant accepted $820 from the victim for the purpose of posting bail for the victim's husband (husband) and then kept the money without posting the bail. In this consolidated appeal, the defendant claims that the evidence against him was insufficient and that the judge abused her discretion in denying his motions for a new trial. We affirm.

Background. The judge could have found the following facts. In June of 2018, the victim had an active restraining order against the husband. On June 6, 2018, the husband was arrested for violating the restraining order and was held at a house of correction on $1,000 bail.

On June 8, 2018, the victim received a Facebook message from an account she recognized as one associated with the defendant, the husband's uncle.³ The message stated, “I heard [the husband] is in jail, what the hell happened?” In a lengthy written response, the victim explained why she sought the restraining order, that the husband had violated the order, and that the husband was being held on $1,000 bail. The victim stated that she had $820, but could not post the husband's bail because she had sought the restraining order.

As part of that same communication, the victim received a telephone number and a request to call the defendant. The victim called the number and spoke with the defendant, whose voice she recognized. The defendant offered to post the victim's money as bail for the husband and to pay any outstanding amount. Based on that conversation, the victim wired $820 to the defendant and sent him a photograph of the Western Union receipt. The defendant responded with a message that he was on his way to post the husband's bail. Thereafter, the victim received multiple messages from the defendant stating that he was “[w]aiting” and “[s]till sitting here.”

The next day, the victim contacted the house of correction and learned that the husband was still in custody. The victim called and sent Facebook messages to the defendant, asking about her money and stating that she would go to the police. The defendant did not respond. On June 10, 2018, the victim reported to the police that her money had been stolen by the defendant. A criminal complaint issued charging the defendant with larceny. Approximately three months later, the victim secured the husband's release from jail when she obtained a modification of the restraining order and posted the $1,000 bail herself. The defendant never returned any of the $820 to the victim.

Discussion. 1. Sufficiency. “To support a conviction of larceny under G. L. c. 266, § 30, the Commonwealth is required to prove the unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently” (quotation omitted). Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985). The defendant claims that his motion for a required finding of not guilty should have been allowed because there was insufficient evidence of the defendant's intent to permanently deprive the victim of her money.⁴ We review this claim 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.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

An inference that the defendant intended to permanently deprive the victim of her money was supported by evidence that the defendant offered to post the husband's bail, received $820 from the victim for that purpose, sent false messages to the victim suggesting he was waiting at the court house to post the bail, and never posted the bail or returned the $820. The conflicting inference the defendant suggests -- that the defendant posted the husband's bail at some point after June 2018 but failed to mention it to the victim -- was not supported by the evidence. Moreover, it was for the judge, as fact finder, to resolve any such discrepancy. See Commonwealth v. Lopez, 484 Mass. 211, 215 (2020). Where the defendant ceased communicating with the victim after she threatened to go to the police, and the husband was still incarcerated when the victim posted the $1,000 bail three months later, the judge could reasonably have inferred that the defendant kept the money and never intended to post the bail.

2. Motion for relief under Mass. R. Crim. P. 25. The defendant filed a motion to set aside the verdict or for a new trial, see Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), claiming that the Commonwealth failed to disclose that the victim's impact statement, filed in connection with the defendant's sentencing hearing, was inconsistent with the victim's trial testimony regarding the duration of the husband's incarceration.⁵ According to the defendant, the Commonwealth's failure to disclose this “exculpatory” information before trial so prejudiced the defendant that a new trial should be ordered. We disagree.

Prior to the sentencing hearing, the prosecutor submitted a written victim impact statement prepared approximately three months before the trial, on July 23, 2018. In describing the impact of the defendant's conduct, the victim stated, “[I]f [the husband] was bailed out he would have been in the jail for 5 days and not the 35 days that he ultimately was.” According to the defendant, this statement was inconsistent with the victim's trial testimony that the husband was not released until late August or early September, which would have meant that the husband remained incarcerated for approximately ninety days. The defendant asserts on appeal that this contradiction “went to the heart of the case.”

However, after the defendant raised the issue at the sentencing hearing, the judge heard testimony from the victim regarding the alleged inconsistency. The victim testified that she thought that the husband had been incarcerated for “well over 35 days” at the time she wrote the victim impact statement. After considering the victim's testimony, the judge concluded that the victim impact statement was not inconsistent with the victim's trial testimony. Bearing in mind the deference owed to the judge's familiarity with the proceedings and her credibility assessments, see Commonwealth v. Preston, 393 Mass. 318, 324 (1984), we discern no abuse of discretion in the denial of the defendant's rule 25 (b) (2) motion. See Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 409-410 (2013).

3. Motion for new trial under Mass. R. Crim. P. 30. The defendant subsequently filed a motion for a new trial pursuant Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), arguing that his trial counsel was ineffective for failing to pursue a claim that the judge improperly accessed the defendant's criminal offender record information (CORI) prior to rendering a finding. We review the judge's order denying the motion for a new trial without an evidentiary hearing for substantial error of law or abuse of discretion. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986); Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). We extend “special deference” to the judge's decision in this case because she presided over the trial and had a first-hand view of trial counsel's performance. Grace, supra. “Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). The defendant has failed to meet that burden here.

The rule 30 motion was supported by an affidavit from trial counsel, who averred that, while the judge was deliberating during the lunch recess, she observed a probation officer “hand a court officer what [counsel] believed to be a copy of the defendant's CORI report.” Counsel then “saw the court officer take what [counsel] believed to be the defendant's CORI into the judge's chambers.”⁶ In a written order denying the motion for a new trial, the judge stated that she had no memory of ever being presented with the defendant's CORI at any time during her deliberations, and that she “would not have considered, or even reviewed” that information had it been presented to her prior to rendering the finding. Where that ruling is entitled to substantial deference, see Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995), and trial counsel asserts only what she thought she saw, we discern no abuse of discretion in the order denying the rule 30 motion without an evidentiary hearing.

Conclusion. We affirm the judgment and the orders denying the motions for a new trial.

So ordered.

Affirmed.

FOOTNOTES

2.   A second count, larceny by false pretenses, was dismissed by the Commonwealth before trial.

3.   The victim and the defendant were Facebook “friends.” The victim had communicated with the defendant through Facebook and had seen family photographs of the defendant and photographs that the defendant posted on his Facebook page.

4.   The defendant's brief also claims that evidence of the defendant's identity was insufficient. That argument was withdrawn at oral argument.

5.   The defendant did not file a timely notice of appeal from the denial of this motion. However, in the interest of judicial economy we exercise our discretion to allow the defendant's motion to apply the notice of appeal filed on July 19, 2019, after the denial of a subsequent Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), motion for a new trial, to the denial of the defendant's rule 25 (b) (2) motion.

6.   We note that the affidavit sets forth no facts to support an inference that the document was in fact the defendant's CORI. See Commonwealth v. Vaughn, 471 Mass. 398, 403 (2015) (“The defendant bears the burden of proving the facts on which he relies in his motion for a new trial”).