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Commonwealth v. Tavares

Appeals Court of Massachusetts, Barnstable

June 5, 2015

Commonwealth
v.
Daniel D. Tavares

Argued: December 9, 2014.

Complaints received and sworn to in the Barnstable Division of the District Court Department on October 31, 2011.

The cases were tried before Joan E. Lynch, J.

Kevin S. Nixon for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

Present: Cypher, Wolohojian, & Blake, JJ.

OPINION

Cypher, J.

A jury convicted the defendant, Daniel D. Tavares, of possessing counterfeit currency, uttering a counterfeit note, and larceny by false pretenses of property not exceeding $250 in value. The defendant appeals and asks us to hold that the judge erred by denying the defendant's motion for a required finding of not guilty. The defendant argues, as he did below, that there was insufficient evidence of identity, when viewed in the light most favorable to the Commonwealth, to support the conclusion beyond a reasonable doubt that the [31 N.E.3d 1168] defendant was the person who had uttered a counterfeit note and committed larceny by false pretenses. The defendant also argues, for the first time on appeal, that there was insufficient evidence to prove that he knew the $100 bills in question were counterfeit.[1] We disagree.

Page 472

1. Factual background.

The jury could have found the following facts. On October 30, 2011, at approximately 9:00 p.m., a man asked for $30 of gasoline at West Main Gas, a gasoline station in Barnstable. The man was driving a black sport utility vehicle (SUV). There was a woman in the passenger seat.

The gasoline station employee, Sherif Nakhla, pumped the gasoline as requested. The man had a $100 bill in his hand. Nakhla gave the man $70 in cash, and then the man handed Nakhla the $100 bill. Nakhla examined the $100 bill and realized " it d[id]n't look like money at all." Nakhla told the man that the $100 bill was not real. The man responded by saying, " I don't know, man," and then drove off. Nakhla tried to catch the SUV but was unable to do so. At trial Nakhla did not identify the defendant as the gasoline station customer, and provided only a very general physical description.[2]

Meanwhile, after the SUV drove away from the gasoline station, at approximately 12:37 a.m. on October 31, 2011, Barnstable police Officer Carl Hill initiated a traffic stop of an SUV in Hyannis. The vehicle failed to stop and drove on a bike path, speeding away from Officer Hill. Officer Hill eventually stopped the SUV in Hyannis, approximately one mile from West Main Gas.

When the stop was made, a woman was driving the SUV. Other officers arrived on scene, including Barnstable police Officer Daniel Ruth. The defendant, who was identified at trial by both Officer Ruth and Officer Hill, was seated in the passenger seat. Officer Hill spoke with the woman, while Officer Ruth approached the defendant on the passenger side of the vehicle. Ruth saw the defendant reach down to his right side. Ruth did not know if the defendant was hiding something. The defendant began yelling obscenities at Ruth, including calling Ruth " the 'f-ing devil.'" Ruth did not see anything in the defendant's hand. Ruth asked the defendant to step out of the vehicle. Ruth smelled an odor of alcohol on ...


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