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Commonwealth v. Thompson

Appeals Court of Massachusetts, Middlesex

June 3, 2016

Commonwealth
v.
Brenisha Thompson

         Argued March 24, 2016.

Page 457

          Indictments found and returned in the Superior Court Department on January 26, 2012.

         The 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 the Commonwealth.

         Present: Katzmann, Rubin, & Wolohojian, JJ.

          OPINION

          Katzmann, J.

          [50 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.

         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

Page 458

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 [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.

         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 pack-

Page 459

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.

         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 [50 N.E.3d 851] 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 " Bren-

Page 460

isha@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

Page 461

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 offense.[1]

          [50 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.

         The 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

Page 462

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.

         We 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.[2] 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.

         In 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.

Page 463

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.[3] 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.[4] 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.

         In sum, 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.[5]

Page 464

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.

         Because 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" ).[6] 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 288 (2015).

         Not 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 ...


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