Com. v. Ryan

March 29, 2011

Commonwealth v. Laura Ryan

Docket No. 09-P-1789.

Massachusetts Appellate Court

Contract, Larceny, Fraudulent Use of Credit Card, Common and Notorious Thief.

The defendant was found guilty of larceny over $250, fraudulent use of a credit card, and identity fraud, and a judge labeled her a common and notorious thief. See G.L. c. 266, § 40. On appeal, the defendant stated that 1) the evidence was not sufficient to sustain a conviction of credit card fraud pursuant to G.L. c. 266, § 37C. She also claimed that the judge erred in adjudging her a common and notorious thief, not providing a specific unanimity instruction, instructing on credit card fraud, and admitting evidence that the defendant was on work-release. The judgment was affirmed.

Facts

Lindsay Sullivan Morales worked at Bernardi Honda in Natick. There, Morales befriended the defendant, who began working as a receptionist in February 2006 under a work-release program for prerelease inmates committed to the Massachusetts Correctional Institution at Framingham (MCI Framingham). Morales, 21 years old, saw the defendant as a "mother figure". The defendant told Morales that was in prison because her boss had been trading stocks and bonds illegally.

One day in April, 2006, Morales noticed that the defendant was upset and asked what was wrong. The defendant told Morales that the cell phone company had shut off her husband's phone service because he had supplied the wrong bank information. She told Morales that she did not have a credit card of her own and needed one so the phone could be reconnected. The defendant convinced Morales to allow her to use Morales' debit card. She promised that no charges would accrue. The defendant then wrote Morales' debit card number on a scrap of paper. Morales thought this strange, but the defendant assured her that she only did that "in case [the transaction] doesn't go through".

About a week later, the defendant complained to Morales that she did not look professional in the uniform that the work-release program required her to wear. The defendant told Morales that she was going to order some clothing from an on-line clothing store, and she asked Morales if she could have the clothes sent to Morales' house. Morales agreed.

On May 7, 2006, Morales overheard the defendant placing an order for a pizza using Morales' debit card information. Morales decided to wait until a charge was posted to her account. Two days later, when Morales' bank statement reflected a charge of $50.62 from Pizza Plus, she questioned the defendant, who responded that she was sorry and must have confused her husband's credit card number with Morales' debit card number.

Morales telephoned the online clothing store and learned that rather than two separate orders there was but a single order in Morales' name alone for $1,200. Morales immediately telephoned her bank and later confronted the defendant. The defendant implored her not to send her back to jail. Their confrontation ended when the van arrived to transport the defendant back to MCI Framingham. Before she left, the defendant again implored the defendant not to tell anybody. The next day, Morales went to the bank and reported the unauthorized charges. In addition to the charge to the clothes, the defendant also used Morales' debit card without Morales' consent to make several purchases: 

Issue 1: The Sufficiency of the Evidence of Credit Card Fraud

G.L. c. 266, § 37C(e) provides that "Whoever, with intent to defraud ... obtains money, goods or services or anything else of value by representing without the consent of the cardholder that he is said cardholder ..., where the value of money, goods or services obtained ... is in excess of two hundred and fifty dollars ... shall be punished." The evidence established that, without Morales' knowledge or consent and with intent to defraud, the defendant used Morales' debit card to make in excess of $250. The defendant argued that the Commonwealth presented insufficient evidence to support conviction because the instrument used was Morales' "debit card" rather than her "credit card." The defendant claimed that because the debit card drew upon Morales' own funds at the bank, the transaction lacked the requisite obtaining of goods or services "on credit". The Court disagreed with this. See Commonwealth v. Roucoulet, 413 Mass. 647, 650, 653 (1992) (court must view statute in its entire context). For purposes of G.L. c. 266, §§ 37A-37C, a debit card is the functional equivalent of a credit card. Although a debit card does not involve the continued extension of credit that arises in a credit card transaction, a debit transaction is nevertheless "on credit" for purposes of the statutory proscription against fraudulent use. The court concluded that a debit card fits within the definition of a "credit card" as defined for purposes of G.L. c. 266, § 37C.

Issue 2: The Label “Common and Notorious Thief” 

General Laws c. 266, § 40, provides in pertinent part that: “Whoever, having been convicted upon indictment, of larceny ... afterwards commits a larceny ... and is convicted thereof upon indictment, and whoever is convicted at the same sitting of the court ... of three distinct larcenies, shall be adjudged a common and notorious thief, and shall be punished....” The defendant claimed that the judge erred by interpreting the statute to permit the defendant's adjudication as a common and notorious thief because, although the defendant had been previously convicted of larceny, she was not also convicted of three distinct larcenies at the same sitting of the court. There was no such requirement in G.L. c. 266, § 40. The defendant's proposed construction ignored the clear statutory language that permitted conviction as a common and notorious thief in two different instances. The first arises when one who has been convicted upon an indictment for larceny is later charged and convicted upon an indictment of another larceny. The second arises when, whether upon indictment or upon a complaint, one is tried and convicted of three separate larcenies at the same sitting of the court. See Commonwealth v. Mills, 436 Mass. 387, 388 (2002).

Issue 3: The Lack of Specific Unanimity

The judge did not err in refusing to provide a specific unanimity instruction. The Commonwealth said the defendant used the victim's debit card as a continuing course of conduct comprising a single criminal episode that amounted to larceny and fraudulent use of a credit card in excess of $250. A specific unanimity instruction applies "when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged." Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003). That did not apply here. Also, a specific unanimity instruction is not required where there is but a single larceny comprised of "successive takings ... actuated by a single, continuing, criminal impulse or intent ... pursuant to the execution of a general larcenous scheme." Commonwealth v. England, 350 Mass. 83, 86 (1966).

Issue 4: The Jury Instruction

Having provided a correct statement of the law, the judge was not required to elaborate further between express consent and implied consent in the words sought by the defendant. See Commonwealth v. Martinez, 437 Mass. 84, 92 (2002) (judge need not give particular instruction requested or use particular term). The defendant was free to argue, as she did, that the victim gave permission to use the card expressly or implicitly by her actions. That the jury rejected this view did not render the instruction erroneous.

Issue 5: The Evidence of the Defendant’s Work-Release Status

The defendant's status as a work-release inmate was intertwined with the facts of the case and essential to the jury's understanding of the entire picture. See Commonwealth v. Butler, 445 Mass. 568, 574-575 (2005). The judge’s decision to include that was not erroneous.

Judgments affirmed; sentence for larceny over $250 is vacated and subsumed within judgment as a common and notorious thief.

–Prepared by JWK.