March 24, 2016.
Indictments found and returned in the Superior Court
Department on January 26, 2012.
cases were tried before Sandra L. Hamlin, J.
Patricia E. Muse for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney (
Charles A. Koech, Assistant District Attorney, with her) for
Katzmann, Rubin, & Wolohojian, JJ.
N.E.3d 849] 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.
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.
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
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.
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 [50
N.E.3d 850] 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.
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.
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
ages 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.
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
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.
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
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 [50 N.E.3d 851] on
Luoto's card were linked to an e-mail address ostensibly
maintained by Rennie, " VRennie51@gmail.com."
Raad nor Luoto had ever met the defendant, authorized her to
use their credit cards, or used the e-mail account "
email@example.com." Luoto further testified that she did
not know Vincent Rennie.
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
" 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
" 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
" I will contact you back. You have my number. Okay.
Sorry. Have a nice day."
indictment, the defendant was tried and convicted by a
Superior Court jury on the charges identified above. She now
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.
Identity fraud convictions.
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 identity fraud is a lesser included
N.E.3d 852] " [A] lesser included offense is one which
is necessarily accomplished on commission of the greater
crime." Commonwealth v. Porro, 458 Mass. 526,
531, 939 N.E.2d 1157 (2010), quoting from Commonwealth v.
D'Amour, 428 Mass. 725, 748, 704 N.E.2d 1166 (1999).
When comparing the two crimes, we consider the elements of
the crimes rather than the facts of any particular case. See
Commonwealth v. Vick, 454 Mass. 418, 431, 910 N.E.2d
339 (2009). " A crime is a lesser-included offense of
another crime if each of its elements is also an element of
the other crime." Commonwealth v. Roderiques,
462 Mass. 415, 421, 968 N.E.2d 908 (2012) (quotation
omitted). With these principles in mind, we turn to the
elements of the two crimes at issue here.
parties have not alerted us to any authority that has
distilled the elements of credit card fraud, and we are not
aware of any. Cf. Commonwealth v. Pearson, 77
Mass.App.Ct. 95, 98 n.9, 928 N.E.2d 961 (2010) (noting that
" neither the Superior Court nor the District Court has
a model instruction for violations of [G. L. c. 266,] §
37B or § 37C" ). Under the provision of G. L. c.
266, § 37C( e ), relevant here, "
[w]hoever, 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 in
violation of this section is in excess of two hundred and
fifty dollars ... shall be punished ... ." The statute
further defines the term " cardholder" as "
the person named on the face of a credit
card to whom or for whose benefit the credit card is issued
by an issuer." G. L. c. 266, § 37A, as amended by
St. 1969, c. 832.
therefore discern that conviction under this variation of
credit card fraud requires proof beyond a reasonable doubt
that the defendant (1) represented himself as the person
named on a credit card; (2) did so without the consent of the
person named on the card; (3) by doing so obtained money,
goods, or services or anything else of value in excess of
$250; and (4) did so with the intent to
defraud. Aside from relaxing the requirement
that the thing obtained have a value in excess of $250, we do
not see that the fraudulent use of a credit card under $250
penalized by G. L. c. 266, § 37B( g ),
comprises different basic elements.
terms of the variation of identity fraud at issue here, a
conviction under G. L. c. 266, § 37E( b ),
" requires that the Commonwealth prove beyond a
reasonable doubt four elements, specifically, that a
defendant (1) posed as another person; (2) [50 N.E.3d 853]
did so without that person's express authorization; (3)
used the other person's identifying information to
obtain, or attempt to obtain, something of value; and (4) did
so with the intent to defraud." Commonwealth v.
Giavazzi, 60 Mass.App.Ct. 374, 376, 802 N.E.2d 589
(2004) (footnote omitted). See Commonwealth v.
Catalano, 74 Mass.App.Ct. 580, 582, 908 N.E.2d 842
(2009). The statute explains that to " pose" means
" to falsely represent oneself, directly or indirectly,
as another person or persons" and that " personal
identifying information" means " any name or number
that may be used, alone or in conjunction with any other
information, to assume the identity of an individual,
including," inter alia, " any name" and a
" credit card number." G. L. c. 266, § 37E(
a ), inserted by St. 1998, c. 397, § 1. Thus,
we might restate the first element of identity fraud to read
that a defendant (1) falsely represented himself, directly or
indirectly, as another person.
In comparing the elements of the two offenses, it is
immediately apparent that they share an identical fourth
element in the requirement of an intent to defraud. There is
also overlap between the first elements of the two offenses
because it is implicit in credit card fraud's lack of
consent requirement (the second element) that the person
representing himself as the cardholder in the first element
is falsely representing himself, whether directly or
indirectly, as another person, namely the
cardholder. The second element of credit card
fraud requires that the defendant make this representation
without the cardholder's consent. Identity fraud's
second element requires that the defendant represent himself
as another person without the other person's express
authorization. We do not see a meaningful difference between
the use of " consent" and "
authorization" in this context and so note that anything
accomplished without consent is necessarily also done without
express authorization. Finally, with respect to their third
elements, when, by using the name on a credit card, someone
obtains money, goods, or services or anything else of value,
whether it be in excess of $250 or less than $250, that
person has necessarily obtained or attempted to obtain
something of value by using personal identifying information,
which includes names and credit card numbers.
the variation of identity fraud under G. L. c. 266, §
37E( b ), of which the defendant was convicted here
" is necessarily accomplished on commission of the
greater crime[s]" of the variations of credit card fraud
under G. L. c. 266, § § 37C( e ) and 37B(
g ), of which the defendant was convicted, and so it
is a lesser included offense. Porro, 458 Mass. at
531. While there are many ways to commit identity fraud
without committing credit card fraud, there are no ways to
commit the credit card fraud charged here without committing
the identity fraud charged here.
Because its [50 N.E.3d 854] third element encompasses
attempts to obtain anything of value, identity fraud is also
a lesser included offense of the attempted credit card fraud
of which the defendant was convicted as the
Commonwealth's theory is that the defendant "
fail[ed] in perpetration" or was " prevented in ...
perpetration," G. L. c. 274, § 6, of credit card
fraud with respect to the Deckers.com order (by which she
attempted to purchase three pairs of Ugg brand shoes and
boots) only to the extent that she did not actually obtain
the things of value that she sought.
we have concluded that identity fraud is a lesser included
offense of the defendant's convictions of credit card
fraud (both over $250 and under $250) and attempted credit
card fraud, it is apparent that the defendant stands
convicted of cognate offenses, raising the specter of
duplicative convictions and attendant double jeopardy
concerns. See Porro, 458 Mass. at 531 ( "
[D]ouble jeopardy prohibits a defendant from being convicted
and, therefore, sentenced, for both the greater and lesser
offense as a result of the same act" ). Where a
defendant is charged with both greater and lesser included
offenses and " the judge does not clearly instruct the
jury that they must find that the defendant committed
separate and distinct criminal acts to convict on the
different charges, the conviction of the lesser included
offense must be vacated as duplicative, even in the absence
of an objection, if there is any significant possibility that
the jury may have based convictions of greater and lesser
included offenses on the same act or series of acts."
Commonwealth v. Kelly, 470 Mass. 682, 700, 25 N.E.3d
surprisingly, given that the issue whether identity fraud is
a lesser included offense of credit card fraud was not raised
at trial, the record does not reflect that a separate and
distinct acts instruction was given. " That the judge
instructed the jury several times that they must consider
each indictment separately did not equate to informing the
jury that the ...