Heard: September 14, 2016.
received and sworn to in the Plymouth Division of the
District Court Department on December 16, 2011.
case was tried before James M. Sullivan, J.
Muscato-Wolter for the defendant.
Jessica Heaton, Assistant District Attorney, for the
Present: Green, Wolohojian, & Massing, JJ.
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. 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.
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,
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.
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."
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.
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.
close of the Commonwealth's case, the defendant moved for
a required finding of not ...