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14-P-190 Appeals Court
COMMONWEALTH vs. DANIEL D. TAVARES.
No. 14-P-190.
Barnstable. December 9, 2014. - June 5, 2015.
Present: Cypher, Wolohojian, & Blake, JJ.
Uttering Forged Instrument. Tendering a False Note. Larceny.
False Pretenses. Practice, Criminal, Required finding.
Evidence, Inference, Identity.
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.
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
2
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
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.
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
1
Although the defendant did not make that contention below,
or make any other required finding argument on the charge of
possessing counterfeit currency, we examine the claim on appeal
because a conviction on insufficient evidence inherently
presents a substantial risk of a miscarriage of justice. See
Commonwealth v. Joyner, 467 Mass. 176, 180 (2014).
3
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
2
Nakhla kept the counterfeit bill separate from the night's
other receipts and gave it to his boss the next day. Nakhla and
his boss then brought the bill to the police together.
4
smelled an odor of alcohol on the defendant's breath. The
defendant was also unsteady on his feet. His eyes were
bloodshot. Ruth placed the defendant in handcuffs in protective
custody.
While pat frisking the defendant, Ruth found a $100 bill in
the defendant's pocket. Another $100 bill had been discovered
in the center console of the vehicle, between the female driver
and the defendant. Ruth noticed that the two bills were
obviously counterfeit. The bills had been glued together with
sheets of paper. The color of the bills was "off." The serial
number of the bill found in the center console was the same as
the serial number of the bill found in the defendant's pocket.
As a result of investigation, Ruth learned of the other
counterfeit $100 bill that had been used that night at the
gasoline station. That bill was identical, including the serial
number, to the two bills recovered from the defendant.
The jury were able to examine the three $100 bills, which
were admitted as evidence, and determine their validity. On
appeal, the Commonwealth filed a motion to transmit the exhibits
so that the panel could examine the bills for itself. After
doing so, the panel concludes that any rational jury would have
found the bills so beyond what would constitute the appearance
and feel of legitimate bills as to be patently counterfeit. The
5
counterfeit bills most obviously consist of two sheets of paper
strips glued together -- and poorly at that.
2. Sufficiency of the evidence. We must review the
evidence in the light most favorable to the Commonwealth to
determine if any rational fact finder could have found the
essential elements of the crimes charged beyond a reasonable
doubt from the evidence submitted. Commonwealth v. Latimore,
378 Mass. 671, 677 (1979).3 "Circumstantial evidence is
competent to establish guilt beyond a reasonable doubt."
Commonwealth v. Murphy, 70 Mass. App. Ct. 774, 777 (2007),
quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989).
Circumstantial evidence may be coupled with "inferences drawn
therefrom that appear reasonable and not overly remote" to
establish guilt. Commonwealth v. Dussault, 71 Mass. App. Ct.
542, 546 (2008), quoting from Commonwealth v. Andrews, 427 Mass.
434, 440 (1998). Inferences made by the jury need only be
"reasonable and possible," not "necessary or inescapable."
Commonwealth v. Casale, 381 Mass. 167, 173 (1980), citing
Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). Compare
Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014)
(Commonwealth did not provide evidence to support any reasonable
3
Because the defendant here presented no evidence after the
Commonwealth rested, there was no possible deterioration of the
Commonwealth's case. See Commonwealth v. O'Laughlin, 446 Mass.
188, 203-204 (2006).
6
and possible inferences satisfying element of offense that
defendant had been notified of suspension or revocation of
driver's license); Commonwealth v. Simpkins, 470 Mass. 458, 461-
462 (2015) (mere presence of white Ford Taurus automobile at
both incidents at issue may have shown some causal link between
them, but that was not enough to suggest defendant's
participation in either incident, even if it were assumed that
he rode in vehicle, because "such an inferential leap asks too
much" of rational fact finder).
In this appeal, the defendant raises two sufficiency
challenges. First, regarding the charges of uttering and
larceny by false pretenses, he contends the evidence was
inadequate to identify him as the gasoline station customer who
passed the counterfeit $100 bill and made away with gasoline and
cash in exchange. Second, on those counts as well as possessing
counterfeit currency, the defendant argues the evidence could
not support an inference that he knew the bills in question were
counterfeit.4 We address each point in turn.
4
It is an element of uttering under G. L. c. 267, § 10,
that the defendant act "knowing the [instrument] to be false,
altered, forged or counterfeit." Likewise, the crime of
possession of a counterfeit bill or note under G. L. c. 267,
§ 12, requires the possessor to "know[] the same to be false,
forged or counterfeit." That knowledge is also needed here for
the charge of larceny by false pretenses, G. L. c. 266, § 34, as
appearing in St. 2010, c. 258, § 10 ("Whoever, with intent to
defraud and by a false pretence, induces another to part with
7
a. Identity. The evidence showed that the defendant
possessed one false $100 bill in his pocket and constructively
possessed another such bill within arm's reach in the vehicle
console. As the Commonwealth points out, both of these bills
were identical to the counterfeit $100 bill used to buy $30
worth of gasoline at West Main Gas. The bills' identical nature
extended to being manufactured in the same manner, by gluing two
pieces of paper together. In addition, because all three bills
bore the same serial number, they had plainly all been
reproduced from the same original bill.
The evidence also showed that the defendant possessed these
bills within several hours of the purchase at West Main Gas with
a counterfeit $100 bill. Both incidents were approximately one
mile in distance from each other. Last, the vehicle driven in
both instances was an SUV and there were two parties inside -– a
man and a woman.
From this evidence, and considering the totality of the
circumstances, a fact finder rationally could have inferred that
the incidents at issue were related. Because both police
officers identified the defendant as the man at the traffic
stop, a fact finder could also have inferred that the defendant
was the same man who used the counterfeit $100 bill to purchase
property of any kind or with any of [certain] benefits . . .
shall be guilty of larceny" [emphasis supplied]).
8
gasoline at West Main Gas. In light of the circumstantial
evidence here, the jury could properly draw the inferences
needed to find the identity of the defendant in the incidents at
issue beyond a reasonable doubt. Compare Commonwealth v.
Henault, 54 Mass. App. Ct. 8, 11-13 (2002) (circumstantial
evidence was sufficient). The judge did not err in denying the
defendant's motion for a required finding of not guilty.
b. Knowledge. Knowledge is a question of fact, and proof
is frequently made by inference from the facts and circumstances
developed at trial. Commonwealth v. Casale, 381 Mass. at 173,
citing Commonwealth v. Sandler, 368 Mass. 729, 741 (1975), and
Commonwealth v. Holiday, 349 Mass. 126, 128 (1965).
Here, the jury reasonably could have inferred from the
circumstantial evidence and the conduct of the defendant that he
knew the $100 bills were counterfeit. See Commonwealth v.
Murphy, 70 Mass. App. Ct. 774, 776-778 (2007) (circumstantial
evidence, when considered in totality, gave rise to inference
that defendant knew bills were counterfeit); United States v.
Rice, 652 F.2d 521, 526 (5th Cir. 1981). As noted above, the
bills were patently fake in appearance, and the jury could use
their own observations of the bills, which were in evidence, to
infer the defendant would have known they were fake.
The evidence was sufficient to establish that (1)
counterfeit bills were possessed and passed by the defendant;
9
(2) the bills were poor quality counterfeits; (3) the defendant
used one such bill to purchase gasoline, then immediately drove
away when its authenticity was challenged (displaying
consciousness of guilt); (4) the counterfeit bills recovered
from the defendant's pocket and the vehicle console were
identical to the one used to purchase gasoline; and (5) instead
of using bills of smaller denomination, the defendant used a
comparatively large bill ($100) to make a comparatively smaller
($30) purchase, see Murphy, supra at 777-778, citing Rice,
supra. From this evidence, a rational trier of fact could have
concluded beyond a reasonable doubt that the defendant knew the
bill he passed and the bills he possessed were counterfeit. On
the issue of knowledge we conclude no required finding was
warranted.
Judgments affirmed.