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Commonwealth v. Long

Appeals Court of Massachusetts, Plymouth

November 23, 2016

COMMONWEALTH
v.
DAMIEN LONG.

          Heard: September 14, 2016.

         Complaint received and sworn to in the Plymouth Division of the District Court Department on December 16, 2011.

         The case was tried before James M. Sullivan, J.

          Amy Muscato-Wolter for the defendant.

          Jessica Heaton, Assistant District Attorney, for the Commonwealth.

          Present: Green, Wolohojian, & Massing, JJ.

          MASSING, J.

          The defendant, Damien Long, prepared an estimate to do some home improvement work for a married couple, who owned a house in Marshfield. He cashed their deposit check, bought some supplies, performed a few days of minimal work that was not to the homeowners' satisfaction, and then abandoned the job. A week later he slipped a final invoice under the door, purporting to show that the homeowners owed him money. On those facts, he was charged and convicted in District Court, after a jury trial, of larceny over $250 by false pretenses.[1] To sustain the conviction, the Commonwealth was required to prove that at the time the defendant promised the homeowners he would do the work, inducing them to write him a check, he did so with the intention of never performing the job. Because we conclude that the evidence did not establish that essential element of the crime beyond a reasonable doubt, we reverse.

         Background.

         We begin by summarizing the facts presented in the Commonwealth's case-in-chief in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Joseph and Maryann Watts, [2] the homeowners, wanted new windows, new window sills, a new sliding door, and some other minor improvements done on their house in Marshfield. Joseph made some calls and eventually contacted the defendant. On September 23, 2011, the defendant met the Wattses at their house to discuss the work they wanted done. They agreed on a price of about $32, 000 for the entire project, and Joseph gave the defendant a check for $11, 800, dated either September 25 or 26, 2011, as a down payment. The deposit was for "purchasing the windows and getting those in, " as well as the "trim and all that stuff [the defendant] need[ed] to finish it." The defendant cashed the check on September 26, 2011.

         The defendant had requested an estimate for seventeen windows at the Home Depot store in Rockland on September 24, 2011. Home Depot quoted him a price of $4, 409.63, but he never purchased the windows associated with that quote. He did purchase various other items including "steps, caulking, trays, casings, brushes, drop cloths, [a] claw hammer, ... a re-framing nail gun; . . . adapters, portable work lights; . . . various nails; ... a steel door; [and] sponges."

         On September 26, 2011, the defendant and an assistant installed some crown moldings in the house and put some plywood under a countertop. Joseph was not satisfied with how the molding was installed, and Maryann left notes for the defendant when he returned to the house the next day, communicating her approval or disapproval of his work. The defendant did no more work on the house after September 27, 2011, and Joseph was unable to reach him by telephone.

         The defendant never repaid the Wattses. However, on October 4, 2011, they received from the defendant a final invoice, labelled "Bid Memo, " itemizing his charges, and some receipts. Accounting for his and his assistant's hourly wage for three days of work, the purchase of windows and supplies, the rental of a dumpster, and a ten percent cancellation fee, the defendant's bill totaled $13, 694.01. Subtracting the refunded dumpster rental fee and the original deposit, the defendant claimed that the Wattses owed him $1, 059.01. Joseph was able to return the steel door and some moldings with the receipts the defendant left him.

         At the close of the Commonwealth's case, the defendant moved for a required finding of not ...


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