Opinion
No. 14–P–1960.
05-27-2016
COMMONWEALTH v. Kim ENAGBARE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After trial, a District Court jury convicted the defendant of larceny over $250 by false pretenses. There was uncontested evidence that from 2010 to 2012, the victim, a man in his nineties, had provided the defendant payments totaling at least $85,000. What was disputed was the nature of, and motivation for, the payments. The Commonwealth's theory of the case was that the defendant induced the victim to make the payments as loans, even though she never intended to repay the money. As the prosecutor acknowledged prior to trial, the Commonwealth's ability to prove its case was hampered by the victim's having died shortly before the trial commenced. The principal question on appeal is whether the evidence the Commonwealth was able to present nevertheless was sufficient to support the conviction. Although the case is close, we affirm.
The judge issued a required finding of not guilty on larceny from a person over age sixty-five because the testimony was to the effect that the payments at issue were voluntarily made.
Background. The victim, who was ninety years old in 2010, lived by himself in Ayer (his wife having died decades earlier). Historically, he was a happy and social person, in the words of his son, “a happy go lucky guy.” However, the victim also was known to be extremely parsimonious. As one witness testified, “[h]e was cheap,” and the type of person who “probably saved the first nickel he ever earned.” Before the period at issue, the victim had saved “hundreds of thousands of dollars” in his bank account.
The victim's son, who lived in California, would visit his father three to four times a year. In the spring of 2010, when the son was helping the victim gather his financial information for tax purposes, the son noticed that his father had “constantly [been] writing checks all of the time to the same person,” the defendant. The victim had known the defendant because she had been his neighbor. The discovered checks had been issued at a worrisome frequency: “Like, Monday there would be $250, Wednesday, there would be $350, the next Tuesday there would be another $375. It was constant, every-every-week, every day sometimes.” In addition to the checks, the victim had also given the defendant cash. When the son tried to raise the issue with his father, the victim became very agitated and refused to discuss the matter.
The payments continued in 2011, and the son confronted the defendant directly. She told him that the payments constituted a loan that she would repay “when she got her tax return.” The payments continued at an alarming rate into 2012. As the son noted, “in a three month period, it was like $25,000.” At one point, the victim's bank account had a negative balance, and the son had to loan him money to pay his taxes. The son also was concerned about the victim becoming increasingly withdrawn and fearful, especially when the subject of the defendant came up (or when the defendant called).
In addition to the payments themselves and the victim's personality changes, there were many other circumstances that raised concerns for the son and other members of the victim's family. One was the sheer frequency of the defendant's calling the victim's home. According to the son, “sometimes the calls would start at 5:30 in the morning and not end till like 10:30 at night.” Yet, when the son answered the calls when he was at his father's house, the defendant would hang up. Moreover, the calls were made from a disposable cellular telephone.
On one occasion in 2012, one of the victim's nephews, a retired State trooper, spotted a red car parked in the victim's driveway with two people waiting inside it. Because the situation “didn't look right,” the nephew went to investigate. The two individuals were “extremely nervous,” and they seemed to be “up to something.” The nephew tried the front door, which he found locked, something that surprised him given that he had never known the victim to lock the door when he was home. A couple of minutes later, the victim came out with the defendant. The nephew tried to ask the victim what the people were doing there, but the victim was “very evasive” and “wouldn't answer [his] questions.” On subsequent occasions, the nephew saw the same red car approach the victim's driveway as if it were about to turn in, but then just drive by “the minute they saw [him].”
The victim's bank had seen the defendant accompany him there, and it knew that he had given her money after he had made withdrawals. On July 25, 2012, the bank contacted the police because the victim was at that moment trying to withdraw a large amount of money from his account. Upon arriving at the bank, the assigned detective found the victim “very, very nervous and upset.” The detective told the victim that he “shouldn't be bringing money to [the defendant and t]hat it was a scam.”
The local police had been alerted to the family's suspicions in February or March of 2012, but a detective was not assigned to the case until July.
The following day, July 26, 2012, the defendant called the victim at his home, and the conversation was overheard on speakerphone by another of the victim's nephews. The defendant urged the victim to meet her. When he resisted, she became increasingly demanding, stating: “What do you mean you can't do it? I need some money. I need a check.... I need to meet you. I have someone coming in, ... [f]lying in down to the Cape, I need some money to get there. You want the money I owe you, I need this money to get down there.... [D]on't you want your money? I need this money to go down and get your big bunch of—big bunch of money.” The victim asked the defendant, “what did you do with the check I gave you yesterday?” to which the defendant responded, “[t]hat's gone. I need some money now.”
The victim was extremely agitated by the telephone call, but having been informed that the defendant was conducting a scam, he did not agree to meet her, and he did not make any additional payments to her. In fact, he obtained a restraining order against her. With his contact with the defendant having been brought to an end, the victim returned to his former ebullient self. In the words of the detective, who had known the victim a long time, he was “very relieved, very jovial[, v]ery talkative[, and n]ot withdrawn.” At trial, the detective, who was the “high risk domestic violence officer” for her department, testified that the victim's personality changes were characteristic of victims of elder abuse.
Specifically, in response to a question of what symptoms of elder abuse the detective had observed, she testified, without objection, “Very withdrawn. They tend to be embarrassed. They're in fear. Once something is found out, it's a relief, and that it was very similar to any other case that I've investigated with elder abuse being involved.”
On cross-examination, the detective testified that the victim had considered the defendant his “friend.” On redirect, the prosecutor asked the detective if she considered the defendant the victim's friend. She answered, “absolutely not,” explaining that the defendant participated in “a scheme to steal a substantial amount of money” and that “in doing so, she appeared friendly to an elderly man who was lonely, and used that in her advantage to take a substantial over—over $100,000.” As explained further below, after an objection and a lengthy sidebar colloquy, the judge told the jury to disregard the word “scheme,” but otherwise let the answer stand.
Based on the bank records, the detective testified to $85,000 in payments to the defendant. However, the specific bank record did not cover the full period in question, and some of the payments the victim made were in cash. Therefore, the specific total amount of the payments may well have exceeded $85,000.
The defendant testified that the payments to her were all gifts not loans, and that she never made the statements that had been attributed to her by the victim's son and nephew. Both in her testimony and through her lawyer's questioning, she also suggested that the allegations against her were rooted in racial bias. For example, she testified that the victim had no problem with her race (African American), but that his family did.
In fact, the defendant testified that she had never met the victim's son.
Discussion. Sufficiency. “[I]f there was competent evidence of a material false representation made by the defendant to [the victim] for the purpose of inducing [him] to make the loan, and a transfer of money by [him] in reliance on the representation, the essential elements of the offense [of larceny by false pretenses] were satisfied.” Commonwealth v. Stovall, 22 Mass.App.Ct. 737, 741 (1986). The Commonwealth need not supply direct proof of such a false representation; “[i]t is enough if all the circumstances considered together would warrant the jury in concluding that [the statement] was untrue.” Commonwealth v. Reske, 43 Mass.App.Ct. 522, 525–526 (1997), quoting from Commonwealth v. Morrison, 252 Mass. 116, 122–123 (1925). In evaluating the sufficiency of the evidence, we, of course, view the evidence, including all reasonable inferences that can be drawn from it, in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
Although the defendant's 2011 reference to the payments as a loan was made to the victim's son, not the victim himself, the jury reasonably could infer that the defendant had used the same characterization with the victim (since she would have been aware that father and son could have “shared notes”). Such an inference is reinforced by her 2012 statement (made directly to the victim) about his wanting to be paid back, and by the victim's parsimonious nature. We believe that rational jurors could have concluded from the entire course of conduct revealed by this record, that the victim paid the defendant over $250 based on her representations—which she knew to be false when she made them—that she would pay him back. Compare Commonwealth v. Reske, supra at 525–527. Although the issue is close, the evidence was sufficient.
We recognize that the victim did not make any payments after the 2012 statement was made. However, that statement can still serve as the basis of inferences that the jury could have drawn regarding the nature of the defendant's and victim's relationship.
Evidentiary issues. The defendant also argues that reversal is required by the admission in evidence of two of the detective's answers: (1) that she told the victim that he should not pay the defendant because “it was a scam,” and (2) that the defendant “appeared friendly to an elderly man who was lonely, and used that in her advantage to take” the money. It is uncontested that the first answer came in without objection, and is therefore subject to review only as to whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967). The defendant contends that her objection to the second answer preserved her claim of error. However, a closer examination of the sidebar colloquy that followed the objection demonstrates that it was not. During that colloquy, the judge invited the defendant to address the issue on recross, and told counsel that he would strike the term “scheme.” Defense counsel then stated that “I will deal with it on [recross]” and did not renew any objection. Under these circumstances, we conclude that the defendant's initial objection was insufficient to preserve the issue for appeal. See Commonwealth v. Benjamin, 399 Mass. 220, 224 (1987) (failure to request additional action after trial judge's resolution “suggests that [the] objection was resolved to [the defendant's] satisfaction”). See also Commonwealth v. Vickery, 82 Mass.App.Ct. 234, 235 (2012) (“The acquiescence of defense counsel to actions taken by the trial judge can constitute a waiver of any objection to the judge's actions”).
Turning to the merits, we do not view the admission of either statement as requiring reversal. The detective's having told the victim that “it was a scam” was admissible for the fact that such a statement was made (as it helped to explain, for example, the victim's observed change in demeanor). Had the defendant objected, she would have been entitled to a limiting instruction (i.e., that the statement could not be taken as direct proof that the defendant was working a scam), but we do not view the absence of such a limiting instruction as causing a substantial risk of a miscarriage of justice.
We do not rely on the Commonwealth's argument that the “it” necessarily referred only to the defendant's most recent demand for money. As noted, that most recent demand is best seen as part of a larger pattern and practice.
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Assuming arguendo that the detective's statement that the defendant “appeared friendly to an elderly man who was lonely, and used that in her advantage” should not have been admitted, we do not view this as having caused a substantial risk of a miscarriage of justice. First, the testimony “does not directly offer an opinion regarding the defendant's guilt or innocence.” Commonwealth v. Canty, 466 Mass. 535, 543 (2013) (affirming conviction for operating under influence despite testimony stating that defendant had been driving while impaired by alcohol). Second, this testimony did not interfere with the two defenses that the defendant put forward at trial: that the payments were gifts, not loans, and that the allegations of wrongdoing were grounded in racial bias.
Judgment affirmed.