Commonwealth v. Dasilva

99 Mass.App.Ct. 1117

167 N.E.3d 873 (Table)

COMMONWEALTH

v.Kaiany F. DASILVA.

20-P-527

Appeals Court of Massachusetts.

Entered: March 29, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of a single count of larceny over $1,200 by false pretenses under G. L. c. 266, §§ 30 (1) & 34.² He now appeals from that conviction, arguing that (1) a police officer's testimony about a telephone call from a male who identified himself as the defendant was not properly authenticated and was thus inadmissible, and (2) with or without the testimony about the telephone call, there was insufficient evidence of reliance on his false statements to convict him of the crime as charged. We affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following. Tarik Absar, the victim of the theft, had previously contracted with the defendant for renovations of his house in Chelsea in 2013. In 2017 and 2018, Absar contacted the defendant several times to discuss some potential work on the basement of his home in Northbridge.

The two met at Absar's home on Friday, November 30, 2018. After viewing the basement, the defendant informed Absar that he would require one-half of the payment up front, with the balance due when the work was halfway completed. Absar wrote out a check to the defendant for $6,500 (approximately one-half of the quoted price), but the defendant stated that he did not need payment right then -- he had forgotten to bring the contract, and would e-mail it over the weekend. Absar placed the check on a nearby table and, after some subsequent small talk, left the room to get a glass of water at the defendant's request.

Unbeknownst to Absar, while he was out of the room the defendant took the check. Absar did not discover its absence until that following Monday. He called his bank to stop payment on the check but it had already been cashed. The defendant stopped responding to Absar's communications, never sent Absar a contract, and never returned to the Northbridge home to perform the work.

On Wednesday, two days after discovering the missing check, Absar reported the theft to Officer Randy Lloyd of the Northbridge Police Department and gave a statement. Officer Lloyd made investigatory telephone calls,³ and on Friday he received an incoming call from a male who identified himself as the defendant. During the ensuing conversation, the caller admitted to discussing a basement renovation with Absar, and to taking the check and cashing it.⁴

Telephone call. "The role of the trial judge in jury cases is to determine whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be." Commonwealth v. Purdy, 459 Mass. 442, 447 (2011), quoting M.S. Brodin & M. Avery, Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). The fact that a caller identifies himself as the defendant is not sufficient proof that the call is authentic, see Purdy, supra, but authenticity may nevertheless be established by a wide range of "confirming circumstances," including other information conveyed by the caller, Commonwealth v. Anderson, 404 Mass. 767, 770 (1989), and facts about the call itself, such as the time it was made and the number from which it originated. See Commonwealth v. Hartford, 346 Mass. 482, 488 (1963).

Here, the content of the conversation strongly suggests that the caller was the defendant because the caller relayed facts that few others besides the defendant could have known. The defendant was knowledgeable about the past work he did for Absar and the proposed renovations to Absar's basement, and not only did he know about the missing check, he admitted to taking and cashing it. Furthermore, the call occurred shortly after Officer Lloyd began attempting to contact the defendant; a fact finder could reasonably infer that the officer's inquiries prompted the incoming call. Taken together, these facts provide sufficient confirmatory evidence to establish that it was more likely than not that the defendant was the caller. See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 440-441 (2018) ("pattern of conduct" from same contact number and content of messages sufficient to authenticate text messages). Compare Commonwealth v. Howard, 42 Mass. App. Ct. 322, 325 (1997) (insufficient evidence to authenticate call where "the caller did not reveal any special knowledge about the events under investigation"). The trial judge therefore did not abuse his discretion in admitting Officer Lloyd's testimony regarding the call.

Larceny by false pretenses. "In a prosecution for larceny by false pretenses, the Commonwealth must prove that ‘(1) a false statement of fact was made; (2) the defendant knew or believed the statement was false when he made it; (3) the defendant intended the person to whom he made the false statement to rely on it; and (4) the person to whom the false statement was made did rely on it and, consequently, parted with property.’ " Commonwealth v. Alvarez, 90 Mass. App. Ct. 158, 159-160 (2016), quoting Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489, 496-497 (2015). The defendant challenges the proof of the fourth element, arguing that there was insufficient evidence presented at trial to show that Absar relied on the defendant's misrepresentation, and that deprivation of property resulted. The evidence, viewed in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 676-677, reveals otherwise: the defendant's false statements were essential to his taking Absar's property.

The uncontroverted testimony at trial established that the defendant promised Absar that he would finish the basement in...