Commonwealth v. Watterson

99 Mass.App.Ct. 746

171 N.E.3d 1182

COMMONWEALTH

v.Daniel A. WATTERSON.

No. 19-P-53

Appeals Court of Massachusetts, Worcester.

Argued March 2, 2021.

Decided June 17, 2021.

Joseph N. Schneiderman for the defendant.

Susanne G. Reardon, Assistant Attorney General, for the Commonwealth.

Present: Green, C.J., Neyman, & Grant, JJ.

NEYMAN, J.

The defendant, Daniel A. Watterson, provided services as an oil burner technician, plumber, and drain specialist. The Commonwealth alleged that he targeted and stole from various elderly and unsuspecting customers. Following a jury-waived trial in the Superior Court, a judge found him guilty of one count of larceny by false pretenses and one count of larceny from an elderly person.¹ On appeal, he argues that the judge erred in deferring action on his motion for a required finding of not guilty after the Commonwealth rested, the Commonwealth presented insufficient evidence to sustain the larceny convictions, and the admission of a photograph in evidence constituted prejudicial error. We affirm.²

Background. Because the defendant challenges the sufficiency of the evidence, we summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

1. The Thomas incident. In late January of 2009, there was a problem with the heating system at the home of Toufe and Katia Thomas in Worcester. Mr. Thomas, who was seventy-seven years old at the time, contacted "the plumber who usually comes in to work on that furnace, but he was kind of busy." Accordingly, Mr. Thomas looked in the telephone book and called the defendant, who operated "DW Plumbing and Heating."³ The defendant came to the Thomas home, looked at the furnace, and said he "needed a part" that would cost between $100 and $150. Mr. Thomas provided his credit card number to the defendant to pay for the part. The defendant left and returned the next day with a "credit card slip for $250." Mr. Thomas signed the slip.

The defendant worked for thirty to forty-five minutes and installed the part. He then provided a copy of an updated slip or invoice to Mr. Thomas. The invoice was for the $250 plus what Mr. Thomas thought was an additional $150. Mr. Thomas told the defendant that $400 was more than the job should cost. The defendant replied that "[t]his is not 150, it's 1,500." In response, Mr. Thomas said, "1,500? That's 1,750 total. The furnace [did not] cost me that much." The defendant replied, "Well, flat rate," and began to walk away. At this time, Mr. Thomas told him, "Don't charge this to my credit card. I don't agree to that price." Mrs. Thomas came downstairs and Mr. Thomas told her about the minimal work and the charges. She followed the defendant and questioned him about the charges and the work. She stated, "We're not going to pay you the fifteen hundred." The defendant retorted, "Flat rate, flat rate," and "took off" in his truck. Testimonial and physical evidence confirmed that the defendant charged $250 and then an additional $1,500 to the Thomases’ credit card. The Thomases’ complaints and efforts to dispute the charges with the credit card company were unsuccessful.

After the defendant left, the heat "worked for about ten minutes, then it went off." Mr. Thomas contacted the defendant's business and advised that the furnace was again not working. The defendant's "helper" returned to the Thomas home, worked on the furnace for approximately fifteen minutes, and left. Although the helper was able to start the furnace, it stopped working, yet again, after he departed. Mr. Thomas contacted the defendant's business and spoke to the helper again, who said that "the problem is electrical." As a result, Mr. Thomas contacted an electrician who came to the Thomas home. After approximately forty-five minutes, the electrician reported that there were no electrical problems. Mr. Thomas then called the defendant's business and left a message that there was no electrical problem. He placed five more calls to the defendant's business, but the defendant never responded. Because it was so cold outside, Mr. Thomas purchased two electric heaters to put near the furnace to prevent the pipes from freezing. He then called his usual plumber who "came up," worked for approximately forty-five minutes on the furnace, "[a]nd after that, everything was okay." That plumber charged $296 for the work.

On February 6, 2009, Mr. Thomas "made a complaint to the Worcester plumbing department about" the defendant. The Worcester plumbing and gas inspector visited the Thomas home in response to the complaint. He reviewed the invoice from the defendant and opined that the charge was unreasonable, "very high," and "excessive." He testified that for that repair, "we're talking maybe an hour's worth of labor and a part that should have cost about $110, $120."

2. The DeOliveira incident. On January 21, 2009, the oil burner heating system at the home of Francisco and Denise DeOliveira in Leominster "stopped working." Through a "colleague," Mrs. DeOliveira "received the name and phone number of [the defendant]." She contacted him and he agreed to fix the heating system. The defendant, accompanied by his assistant,⁴ arrived at the home and Mr. DeOliveira walked them to the basement and showed them the oil burner. Mr. DeOliveira went upstairs for about fifteen minutes, returned downstairs, and observed the defendant and the assistant cleaning. Mr. DeOliveira asked, "How's everything?" The defendant responded, "We are done." Mr. DeOliveira returned upstairs and approximately ten minutes later, the defendant came upstairs and provided an invoice in the amount of $500. In response, Mr. DeOliveira said, "Are you kidding?" The defendant replied, "That's the flat rate charge that I always do." Mr. DeOliveira asked what work had been performed. The defendant said that he had replaced or fixed the "[f]iring assembly." Mr. DeOliveira had never heard that term.

At 5 P.M. , while the defendant was still at his home, Mr. DeOliveira called Mrs. DeOliveira to discuss which credit card to use for payment. Mrs. DeOliveira then spoke to the defendant and "asked him to explain to [her] what exactly he had done with the oil burner." His response "really didn't make any sense to [her]." She asked some questions, but she "really didn't understand anything he had said they had done that afternoon." However, insofar as the heating system appeared to be working, she and her husband "paid in good faith."

When Mrs. DeOliveira awoke the next morning, she noticed that the heat was not working again. She called the defendant, who said that he could not respond until the afternoon. Mrs. DeOliveira then called her oil company, which referred her to another licensed oil burner technician, Dwight Wheeler. Wheeler came to the DeOliveira home and "restored the heat within a minute." Mrs. DeOliveira showed Wheeler the invoice that the defendant had provided to the DeOliveiras. Upon seeing the invoice, Wheeler "laugh[ed] about it." Despite being a licensed oil burner technician since approximately 1974, with ninety to ninety-five percent of his business involving work on oil burners, he did not use the term "firing assembly" and "wanted to see what a firing assembly was, so [he] went back down in the basement and inspected the burner to see what was changed" by the defendant. Upon inspecting the system, Wheeler observed that the only new part was the nozzle to the drawer assembly, which cost $3.25. Wheeler concluded that no other part appeared to have been newly replaced. Wheeler did not charge the DeOliveiras for this visit.⁵

Following her conversation with Wheeler, Mrs. DeOliveira contacted the defendant and asked for an itemized bill with a listing of parts he had replaced. The defendant agreed to do so, but did not follow up. Mrs. DeOliveira contacted the defendant again several days later and asked again for the information. The defendant said, "no problem," but neither followed up nor provided the requested information. The DeOliveiras both testified that had they known that the defendant had only replaced a $3.25 nozzle, they would not have agreed to pay $500 for the "repair."

3. Additional evidence. William Hackett, called by the Commonwealth, testified that he worked with the defendant on "[h]undreds" of jobs on "most days of the week for several years." He also testified that the defendant had told him, when pricing jobs for "older customers," that "[t]hey had more time to save up money for him." The defendant also told Hackett that when he commenced a new job, "he looked at people's possessions" in order "to see how they were living." Finally, when customers "would start questioning the [defendant's] pricing," he had a practice of saying "that he would have to call his boss and find out the final price." The defendant had no boss.

The defendant testified at trial, and claimed, inter alia, that he performed the work for which he was paid; that he believed that he had installed the correct parts; that he charged for travel time to get to the DeOliveiras’ house as he did not customarily make service calls to Leominster; and that he traveled to the Thomas home in Worcester during a blizzard. On cross-examination, the Commonwealth introduced a printout from the National Climactic Data Center showing weather data in Worcester in January of 2009. The exhibit showed that there had been no precipitation in Worcester on the dates the defendant traveled to the Thomas residence.

Discussion. 1. Deferring rule 25 (a) decision. At the close of the Commonwealth's case, the defendant moved under Mass. R. Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995), for a required finding of not guilty as to all counts. Following argument, the judge stated that he would need to take some time because he could not decide the motion "without reviewing all [of his] notes and maybe the transcript." In response, couns...