COMMONWEALTH v. JOAN BROOSLIN (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of three offenses related to her misappropriation of funds from her elderly parents: larceny over $250 from a person over sixty or disabled, uttering a false check, and forgery of a check. In this appeal, she challenges the sufficiency of the evidence to support those convictions and maintains that she suffered from ineffective assistance of trial counsel. We affirm.

We review the defendant's sufficiency claim, considering the evidence introduced at trial in the light most favorable to the Commonwealth, to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), bearing in mind that guilt may be established by circumstantial evidence “and that the inferences a jury may draw from the evidence 'need only be reasonable and possible and need not be necessary or inescapable.'” Commonwealth v. Linton, 456 Mass. 534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). We direct our analysis at the defendant's argument that the evidence was insufficient to show that she had specific intent to steal, or to defraud the victims, when she signed the subject checks, an element common to all three crimes. See G. L. c. 266, § 30 (1) (larceny); G. L. c. 267, § 5 (uttering); G. L. c. 267, § 1 (forgery). See also Commonwealth v. O'Connell, 438 Mass. 658, 664 (2003) (“The crimes of forgery and uttering both require proof of an intent to injure or defraud”).

The defendant did not contest that, between December 31, 2015, and February 11, 2016, she signed her stepfather's name to twenty checks totaling over $18,000 and cashed those checks. Her defense, advanced through her own testimony and through cross-examination of witnesses, was that she had authority to write these checks because she had a power of attorney for her parents, and that her stepfather had asked her to sign his name and withdraw the cash.

The evidence, considered in the light most favorable to the Commonwealth, was that there was no power of attorney in effect until February 11, 2016, at the end of the charged conduct, when the stepfather signed a “durable power of attorney” that authorized the defendant thereafter to sign and issue checks from the parents' accounts. The stepfather testified that he did not authorize the defendant to write any of the twenty checks the defendant cashed. See Commonwealth v. Deane, 458 Mass. 43, 52 (2010) (“Credibility determinations are the province of the jury, and as recounted above, there was sufficient evidence to support the jury's rejection of the defendant's version of events”).

In addition, there was ample evidence of motive for the defendant to have engaged in the charged conduct. The jury heard that, in 2015, the defendant was “having some financial issues” and had no stable housing. She began living in her parents' home after her home was foreclosed on. There, she had access to her parents' checkbook, which was kept in the kitchen table. During the period of the charged conduct, the defendant lived in the parental home with the stepfather while the mother lived in a nursing home.

By June 2016, the stepfather had also moved to the nursing home, and the jury could reasonably have concluded that the defendant was making efforts to keep her parents from moving back into their home. After retaining a geriatric care manager, the parents moved back to their home in early August 2016, finding it in a bad state of disrepair. The defendant resisted their return, which precipitated her moving out. A few months later, the defendant called the stepfather's nephew asking for money, saying she needed funds to prevent her from being evicted.

“[P]roof of intent to injure or defraud may be inferred from the circumstances.” O'Connell, 438 Mass. at 664. Here, as in O'Connell, supra, “there was evidence that the defendant presented checks for payment over signatures that [s]he forged”; the only power of attorney in evidence did not authorize her to sign the checks in question; her stepfather disclaimed any such authorization; and the bank paid out the money to the defendant. Under these circumstances, “[t]he evidence was sufficient to show that [s]he acted with an intent to injure or defraud someone,” and we will not disturb the jury's verdict. Id.

The defendant's claim of ineffective assistance of counsel is similarly unavailing. Absent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal. See Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006), and cases cited. Because the factual basis for the defendant's claim does not “appear[ ] indisputably on the trial record,” Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), it does not fall “within that narrow category of claims that an appellate court can resolve on the trial record alone,” Zinser, supra at 811-812, and we therefore decline to address it.

Judgments affirmed.