Opinion
No. 15–P–572.
07-14-2016
COMMONWEALTH v. Susan S. ROBINSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Susan S. Robinson, was convicted of two counts of uttering a false check. On appeal, the defendant argues that: (1) the Commonwealth failed to provide sufficient evidence to support her convictions; (2) the trial judge erroneously admitted other bad acts evidence; and (3) the trial judge improperly admitted unauthenticated surveillance photographs. We affirm.
Discussion. 1. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to support her convictions. We review such sufficiency challenges under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), and consider the evidence in the light most favorable to the Commonwealth.
We recite the facts as the jury could have found them, reserving certain details for later discussion. Surveillance footage placed the defendant entering the Fresh Pond TD Bank branch in Cambridge at 12:06 P.M. on August 9, 2011. She approached one of the teller windows and presented a check for deposit into a savings account in the name of Bonnie Green. The check was in the amount of $8,539.29, made payable to Bonnie Green, and was drawn on a Wells Fargo account in the name of the “Clark S. Binkley Company.”
On August 11, 2011, at 8:36 A.M., the defendant made an in-person withdrawal at the Braintree TD Bank branch from the same savings account held by Bonnie Green. That same day, the paying bank, Wells Fargo, returned the check, unpaid, to TD Bank marked as an “altered fictitious check.” Additionally, TD Bank fraud investigator Bruce Peterson determined that Wells Fargo did not return the check based upon insufficient funds. Peterson obtained the surveillance footage associated with the check deposit into, and the funds withdrawal from, Green's account.
On August 15, 2011, the defendant entered the Harvard Square branch of Citizens Bank in Cambridge and presented a check for deposit into Megan Neilson's bank account in the amount of $8,789.68 . The check was made payable to Megan Neilson and was drawn on the USAA Federal Savings Bank account belonging to the “Helen Hardacre Company.” The check was returned to Citizens Bank unpaid on August 24, 2011, and Citizens Bank commenced a fraud investigation. A Citizens Bank fraud investigator collected the surveillance footage for the relevant date, time, and branch associated with the deposit of the returned check.
The bank records associated with the deposit show that it occurred at approximately 1:03 P.M., and the still surveillance photographs show the defendant engaged in a transaction at approximately 1:10 P.M. Citizens Bank's fraud investigator, Beth Ryan, noted that on the day in question there was an eight-minute time difference between the video surveillance system and the bank's record-keeping system (electronic journal). On cross-examination, Ryan stated that the time difference was unintentional, she could not explain why it occurred, and that she did not conduct the investigation.
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Neilson, the account holder, confirmed that although she had a bank account with Citizens Bank in 2011, she did not make this deposit, and that Citizens Bank closed her account shortly thereafter. Helen Hardacre confirmed that she was not the maker of the check and that she was not familiar with a “Helen Hardacre Company.” Additionally, Hardacre noted that although she does live at the street address listed on the check, her address is an apartment and not a “suite” as stated on the check, she does not own a business, and she did not know the defendant. Hardacre also confirmed that in August, 2011, there were three unauthorized withdrawals from her bank account, totaling over $26,000.
Less than two hours after the defendant completed her transaction at Citizens Bank on August 15, 2011, she deposited a check at the Copley Square branch of TD Bank in Boston. The check was made payable to Rosalita Skinner, was in the same amount, $8,789.68, as the deposit in the Megan Neilson account, and was drawn on the same account purporting to be in the name of “Helen Hardacre Company.” After the paying bank returned the check unpaid, Peterson began a fraud investigation that led him to surveillance footage depicting the defendant at the Copley Square branch during the relevant time period. Two days after the defendant deposited the check into Skinner's account, the defendant made two in-person withdrawals from Skinner's account, totaling $7,500, at the Winter Street TD Bank branch in Boston.
Detective Brian O'Connor of the Cambridge police department contacted Peterson as part of his investigation into the fraudulent activity associated with Green's bank account. Peterson gave O'Connor the bank surveillance photographs associated with that transaction. O'Connor sent the photographs by electronic mail message (e-mail) to other members of the Cambridge police department “to see if anybody [was] familiar with the individual in the photos .” Based on the response from another Cambridge police officer, O'Connor obtained the Registry of Motor Vehicles (RMV) photograph of the defendant. O'Connor and other members of the Cambridge police department executed a search warrant on the defendant's home on October 20, 2011.
As a result of the search, O'Connor found numerous documents containing financial information belonging to a number of individuals, such as names, addresses, dates of birth, social security numbers, and bank account information. One such individual, Manindra Jwarchan, confirmed the authenticity of his information found in the defendant's home, including his name, birth date, Social Security number, home address, and savings account information, including the name of his wife, with whom he shared the account. Jwarchan also stated that he did not know the defendant or anyone by her name.
The officers also found multiple RMV drivers' licenses and identification cards, insurance cards, student identification cards, a check-writing software registration form belonging to the defendant, and blank check paper.
a. Bonnie Green's TD bank account—Indictment 1904. “In order to support a conviction for uttering, the Commonwealth must show that the defendant ‘(1) offer[ed] as genuine; (2) an instrument; (3) known to be forged; (4) with the intent to defraud.’ “ Commonwealth v. Bonilla, 89 Mass.App.Ct. 263, 265 (2016), quoting from Commonwealth v. O'Connell, 438 Mass. 658, 664 n. 9 (2003). See G.L.c. 267, § 5 (“Whoever, with intent to injure or defraud, utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in the four preceding sections, knowing the same to be false, forged or altered, shall be punished”). “A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Murphy, 70 Mass.App.Ct. 774, 777 (2007), quoting from Commonwealth v. Casale, 381 Mass. 167, 173 (1980).
Here, viewing the evidence in the light most favorable to the Commonwealth, Latimore, 378 Mass. at 677, we conclude that there was sufficient evidence for the jury to have found that the defendant uttered a false, forged, or altered check at the TD Bank on August 9, 2011. The defendant deposited a check made payable to Green into Green's account that was returned to TD Bank marked “altered fictitious check.” The jury were instructed that they could not consider the “altered fictitious check” notation on the returned check for its truth. However, the jury were provided with ample evidence to have found that the check was false, forged, or altered beyond a reasonable doubt. The jury heard Peterson's testimony that the check was not returned due to insufficient funds, and were provided with evidence that the defendant deposited and withdrew funds from an account that belonged to another individual, and that the check was returned shortly thereafter. Compare Bonilla, 89 Mass.App.Ct. at 265 (insufficient evidence of false, forged, or altered check where checks were written from defendant's own accounts but the accounts had insufficient funds).
The jury also could have found that the defendant intended to defraud the bank because two days after the defendant deposited the check into a bank account belonging to another person (Green), she made an in-person withdrawal from that same account, and the check was returned to TD Bank unpaid on that same day. See Murphy, 70 Mass.App.Ct. at 777–778. Similarly, the jury could infer the defendant's knowledge and intent based on the several documents containing numerous individuals' financial information and check-making materials that were found in the defendant's home. Additionally, the defendant deposited another check into Skinner's account from the same purported payee at a Boston TD Bank branch, withdrew the bulk of the funds shortly thereafter, and the check was also returned unpaid. See ibid.; Mass. G. Evid. § 404(b)(2) (2016).
b. Megan Neilson's Citizens Bank account—Indictment 1903. The defendant argues that the evidence was insufficient to prove that she was the individual who deposited the false check for deposit at Citizens Bank on August 15, 2011, because the surveillance photographs place her at the bank approximately eight minutes after the check was deposited into Neilson's account. We disagree. The jury viewed still surveillance photographs of the defendant engaged in a transaction at approximately 1:10 P.M. at the Harvard Square branch. The jury were able to compare the photographs with the defendant's RMV photograph to determine whether she was the person depicted in the photographs. The jury also heard Ryan's testimony regarding the eight-minute discrepancy between the time stamp on the surveillance photographs and the time stamp on the bank's electronic journal. “If the evidence lends itself to several conflicting interpretations, it is the province of the jury to resolve the discrepancy and ‘determine where the truth lies.’ “ Commonwealth v. Platt, 440 Mass. 396, 401 (2003), quoting from Commonwealth v. Lydon, 413 Mass. 309, 312 (1992).
Additionally, the jury could have found beyond a reasonable doubt that the check was false, forged, or altered, as the account holder, Neilson, confirmed that she did not make the deposit and Hardacre stated that (1) she was not the maker of the check; (2) she does not own a company; and (3) there were three unauthorized withdrawals from her USAA account during 2011. Furthermore, as mentioned above, the defendant deposited another check drawn from the “Helen Hardacre Company” in the exact same amount of $8,789.68 during August, 2011, withdrew the bulk of the funds, and the check was returned to the bank unpaid. See Murphy, 70 Mass.App.Ct. at 777–778.
2. Evidentiary issues. The defendant argues that the trial judge erroneously admitted other bad acts evidence and unauthenticated surveillance photographs. We disagree.
a. Other bad acts evidence. “It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing [her] bad character or propensity to the commit the crime charged, but such evidence may be admissible if relevant for some other purpose ... such as to show a common scheme, pattern of operation, absence of accident of mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2). The judge's determination of whether the evidence is relevant and more prejudicial than probative “will be upheld on appeal absent palpable error.” Commonwealth v. Marrero, 427 Mass. 65, 67–68 (1998), quoting from Commonwealth v.. Valentin, 420 Mass. 263, 270 (1995).
Here, the trial judge properly admitted evidence that was probative of the defendant's knowledge that the checks she passed were false, forged, or altered, and her intent to defraud. The financial and personal information and the check-making materials found in the defendant's home allowed the jury to reasonably infer that the defendant was engaged in a pattern of conduct and that she knowingly passed checks that were false, forged, or altered, and did so with an intent to defraud. See Helfant, 398 Mass. at 224. Furthermore, evidence tending to show that the defendant passed other forged, false, or altered checks was properly admitted to show motive, knowledge, intent, and lack of mistake. See ibid.
The defendant's argument that the judge's limiting instruction was insufficient is unavailing. The judge specifically instructed the jury that they could not consider the evidence of the financial and personal information, check-making software, check paper, and other uncharged conduct by the defendant as “proof that the defendant committed the crimes for which she's charged. Nor may [it be] consider[ed] ... as proof that the defendant has a criminal personality or bad character, but you may consider it solely on the limited issue of knowledge ... [o]r motive.” The judge further instructed the jury that they could not consider “this evidence for any other purpose, specifically you may not use it to conclude that if the defendant committed the other acts, then she must also have committed the [uttering] charges that are before you today.” The jury are presumed to follow instructions. See Helfant, supra at 228 (“The judge's instructions were clear, and we must presume the jury followed them”).
b. Surveillance photographs. The defendant argues that the surveillance photographs from both banks were improperly admitted because they were unauthenticated and irrelevant. We disagree. “The requirement of authentication as a condition precedent to admissibility of real evidence is satisfied by a foundation sufficient to support a finding that the item in question is what its proponent claims it to be.” Commonwealth v. Siny Van Tran, 460 Mass. 535, 546 (2011). Mass. G. Evid. § 901(a). “A judge making a determination concerning the authenticity of a communication sought to be introduced in evidence may look to ‘confirming circumstances' that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be.” Commonwealth v. Purdy, 459 Mass. 442, 448–449 (2011). “Evidence may be authenticated by direct or circumstantial evidence, including its ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics.’ “ Id. at 447–448, quoting from Mass. G. Evid. § 901(b)(1), (4).
On the facts of this case, there was no error in the judge's ruling that the surveillance video was properly authenticated and therefore admissible. See Commonwealth v. Siny Van Tran, supra. Peterson and Ryan properly authenticated the still surveillance photographs by testifying to the procedure each used in procuring the still photographs from the video surveillance system at their respective bank. Both investigators confirmed: (1) the time of the scene portrayed in the still photographs; (2) that the photographs were in substantially the same condition as they were when the photographs were created from the video surveillance; (3) that the video surveillance was kept during the ordinary course of business; and (4) that the images captured were a fair and accurate representation of the interior of the banks. More was not required. Mass. G. Evid. § 901(a) & note at 329. See Commonwealth v. Leneski, 66 Mass.App.Ct. 291, 295 (2006) (images from store surveillance sufficiently authenticated where owner testified to procedure used in surveillance process and process of converting video surveillance to compact disc). Finally, “[a]ny concerns that the defendant had regarding the surveillance procedures, and the method of storing and reproducing the video material, ‘were properly the subject of cross-examination and affected the weight, not the admissibility, of the’ [photographs].” Ibid., quoting from Commonwealth v. Mahoney, 400 Mass. 524, 529–530 (1987). We discern no error or abuse of discretion. See Marrero, 427 Mass. at 67–68.
Judgments affirmed.