Commonwealth v. Thompson

89 Mass.App.Ct. 456

50 N.E.3d 845

COMMONWEALTH

v.Brenisha THOMPSON.

No. 14–P–886.

Appeals Court of Massachusetts, Middlesex.

Argued March 24, 2016.

Decided June 3, 2016.

Patricia E. Muse, Salem, for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney (Charles A. Koech, Assistant District Attorney, with her) for the Commonwealth.

Present: KATZMANN, RUBIN, & WOLOHOJIAN, JJ.

KATZMANN, J.

The defendant was convicted by a Superior Court jury of two counts of credit card fraud over $250 in violation of G.L. c. 266, § 37C(e ) ; two counts of credit card fraud under $250 in violation of G.L. c. 266, § 37B(g ) ; two counts of identity fraud in violation of G.L. c. 266, § 37E(b ) ; one count of receiving stolen property with a value in excess of $250 in violation of G.L. c. 266, § 60 ; and one count of attempted credit card fraud in violation of G.L. c. 274, § 6. The defendant now appeals. She challenges the sufficiency of the evidence underlying the identity fraud convictions and the credit card fraud convictions relating to one of the victims.

We conclude that the defendant's identity fraud convictions are duplicative of her credit card fraud convictions, and that her conviction of receiving a stolen purse is legally inconsistent with her conviction of obtaining that purse through fraudulent use of a credit card. Accordingly, we reverse and vacate the defendant's convictions of identity fraud and receiving stolen property. We conclude that jurisdiction on the credit card fraud charges was properly laid in Massachusetts. Although it was error to admit the contested portions of a voicemail message the defendant left for the investigating detective in which she indicates that she would not talk with him unless an attorney was present and that she was asserting her right not to speak, we conclude that the error was harmless beyond a reasonable doubt, and that the error does not require reversal of the remaining convictions in the context of the trial as a whole. We thus affirm the credit card convictions.

Background. In March of 2011, Ranwa Raad of Boxborough received a telephone call from Deckers.com, a seller of shoes, inquiring about a $476 charge made to her credit card on March 22, 2011. Raad promptly contacted her credit card company to report this as an unauthorized charge. As a result, the credit card was canceled. On the same day of the Deckers.com charge, Raad's card was also used for a $326 charge on Coach.com, which markets purses. Raad had not made this purchase either.

On March 29, 2011, Raad went to her local police station to report the unauthorized activity on her credit card. She met with Detective Benjamin Levine, who began an investigation. Levine obtained transaction detail records for the Coach.com charge and determined that while the charge was billed to Raad at her home address in Boxborough, the electronic mail (e-mail) address associated with the order was “Brenisha@yahoo.com” and the purchased item (a purse) was shipped via Federal Express (FedEx) delivery service to “Bre Thompdon” at 145 Eastern Avenue, apartment 203, in Manchester, New Hampshire.

Around the same time in March, 2011, Pat Luoto of Hudson received a credit card statement with numerous charges from February and March that she had not made or authorized, including charges to Comcast, a digital cable television and Internet service provider; New Hampshire Turnpike EZ Pass (EZ Pass); Red Oak Property Management in Manchester, New Hampshire; and Backcountry.com, which markets winter apparel. Luoto had never used Comcast, did not have an EZ Pass registered in New Hampshire, did not know what Red Oak Property Management was, and did not frequent Backcountry.com. Luoto called her credit card company to report the problem. In addition, there were charges on her card for hotels in New York City, a restaurant in Rye, New York, a prepaid wireless telephone company, and Mycleanpc.com that Luoto had not made or authorized. Luoto's credit card was canceled as a result of the fraud.

After meeting with Raad, Levine contacted Detective Jean Roers of the Manchester, New Hampshire, police department and asked her to visit 145 Eastern Avenue, apartment 203, in Manchester to see if she could ascertain the status of the FedEx delivery from Coach.com.

When Roers knocked on the door at the Eastern Avenue apartment on March 29, 2011, it was the defendant, Brenisha Thompson, who answered. The defendant acknowledged that she had received a Coach brand purse in a FedEx package. She said that she had not been expecting the purse, but that she thought it was sent to her by her former boy friend, Vincent Rennie. The defendant added that Rennie had previously asked her if she was willing to make some extra money on the side by receiving packages of clothing, shoes, and purses in the mail and repackaging and shipping the merchandise elsewhere or transferring the goods to others in person. She stated, however, that Rennie was living in New York or New Jersey and that, other than one e-mail message, they had not been in contact since a fight at Christmas.

Roers told the defendant that the purse was evidence and would have to be turned over to the police in Boxborough. The defendant complied, first emptying the purse of her wallet, keys, makeup, and other personal belongings before handing it over to Roers.

Detective Levine initially suspected that the unauthorized charges on Raad's credit card related to a larger international scheme in which unassuming people are recruited on a classified advertisement Web site such as Craigslist or social networking sites to receive shipments of fraudulently obtained goods and repackage and reship them, typically out of the country. As a result, he obtained shipping records from both United Parcel Service (UPS) and FedEx for the defendant's address. These records revealed only one additional delivery to the defendant's Manchester apartment, a UPS delivery from Backcountry.com.

Levine was later able to determine that the Backcountry.com delivery was a woman's North Face brand fleece jacket that had been ordered for $88.70 using Luoto's credit card on March 6, 2011. The billing address on the order was Luoto's Hudson address. The e-mail address associated with the order, however, was once again “Brenisha@yahoo.com.” The online order for the fleece jacket was placed from an “IP address” registered to Comcast in Manchester, New Hampshire. Levine reached out to Luoto and ultimately discovered the additional unauthorized charges to Luoto's credit card recited above.

Levine's investigation also revealed that the apartment on Eastern Avenue was rented in the name of “Bre Thompson” through Red Oak Property Management, though the rent was sometimes paid by the defendant and sometimes by Rennie. Levine further obtained audio recordings of calls to a wireless telephone company in which an individual identifies himself as Vincent Rennie and uses Luoto's credit card information to add minutes to a prepaid wireless account while claiming that Luoto's credit card belonged to the defendant. The New York City hotel charges on Luoto's card were linked to an e-mail address ostensibly maintained by Rennie, “VRennie51@gmail.com.”

Neither Raad nor Luoto had ever met the defendant, authorized her to use their credit cards, or used the e-mail account “Brenisha@yahoo.com.”

Luoto further testified that she did not know Vincent Rennie.

As part of Levine's investigation, he sought to meet with the defendant to discuss the case. On April 6, 2011, the defendant called Levine and left him the following voicemail message:

“Hi, Detective [Levine]. This is Brenisha Thompson. I was calling to leave you a message to say that I would not be able to make it down today for [indiscernible] my mom's house down in [Hampden] this past weekend looks good, so I just wanted to see her and my family and I was planning on going down there next weekend to see her, but I'm going to go down there [indiscernible] and actually to go and see her.

“I feel that if I did go down there without legal representation, I just wanted to have you know an attorney there I want to be very cooperative with you and I just wanted to assert my right to not to say anything and you know if they're going to proceed with this [investigation] I guess, you know, where are we going to go from there. I mean I think I know [Vincent] did not do this. I know [who did it], but you know I can't prove that this person he did it because he's been [wrecking] my life for the past few years and he has [indiscernible]. It's something that I've been dealing with between you and I all these [indiscernible].

“I will contact you back. You have my number. Okay. Sorry. Have a nice day.”

Following indictment, the defendant was tried and convicted by a Superior Court jury on the charges identified above. She now appeals.

Discussion. We first consider the defendant's challenges to the identity fraud convictions and the question whether they are duplicative of the credit card convictions, the jurisdictional viability of her receiving stolen property and credit card convictions, and the sufficiency of the evidence with respect to the convictions in connection with the use of Luoto's credit card. Finally, we address the defendant's claim of reversible error in the admission of her April 6 voicemail message.

1. Identity fraud convictions. The defendant challenges the sufficiency of the evidence underlying her identity fraud convictions, contending, in part, that if the Commonwealth could rely on the same proof concerning use of the victims' credit cards to support both the credit card fraud convictions and identity fraud convictions, then identity fraud would effectively be a lesser included offense of credit card fraud. While we do not accept the argument in the form presented by the defendant, we conclude, based on the elements of the offenses of credit card fraud and identity fraud pursued by the Commonwealth here, that...