NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-196
COMMONWEALTH
vs.
MICHAEL D. THOMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of larceny over $1,200 by false
pretenses in a jury-waived trial in the District Court. At the
close of the Commonwealth's case and again at the close of all
the evidence, the defendant moved for a required finding of not
guilty. The judge denied both motions, and ultimately found the
defendant guilty. After being sentenced to a six-month
commitment in the house of correction, the defendant filed a
renewed motion for a required finding of not guilty, which was
denied. On appeal, the defendant argues that the judge erred in
denying his motions for a required finding of not guilty because
the Commonwealth failed to present sufficient evidence to
sustain his conviction. We affirm.
Background. We summarize the background of this case in
the light most favorable to the Commonwealth. See Commonwealth
v. Latimore, 378 Mass. 671, 676-678 (1979). Ken Dedominici owns
Speedway Amusements LLC, located in East Bridgewater. The
defendant owned ASK Construction Company (ASK). In early June
2019, Dedominici met the defendant at his East Bridgewater
property to discuss erecting a building on the site. The
defendant gave Dedominici a proposal for the project that
included a "building deposit" of $21,355 and a "building payoff"
of $72,611.75. As part of these deposits, Dedominici gave the
defendant a check in the amount of $16,000 (check one) on or
around August 15, 2019, with the defendant's company ASK as the
recipient, and later a second check on or around September 10,
2019, also made out to ASK, in the amount of $5,355 (check two).
Dedominici and the defendant agreed that the defendant would
send the money from these checks to Chief Buildings (Chief), a
company specialized in the creation of steel buildings. Based
on his conversations with the defendant before he wrote checks
one and two, Dedominici understood that his upfront payment was
necessary so that Chief could create engineer-stamped drawings
of the building and begin construction of the building offsite. 1
The engineer-stamped drawings provided by Chief were necessary
1 Dedominici's testimony was inconsistent regarding whether
checks one and two were purely for the purpose of receiving
drawings of the building or if they were also intended for Chief
to begin construction of the building. Because we essentially
conclude that it was the defendant's later actions that were
criminal, we need not resolve this inconsistency.
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in order to obtain building permits. It was agreed that once
Chief delivered the constructed building, the defendant would
then erect the building on site. The defendant provided
Dedominici with the stamped drawings prepared by Chief and the
project appeared to be progressing as expected.
On November 6, 2019, the defendant gave Dedominici an
invoice for $72,611.75. The defendant told Dedominici that "the
building was ready and it was going to be delivered in two
weeks, so [Dedominici] needed to make a final payment so [the
defendant] could pay for the building." The defendant said he
"was a little bit short on the money [and] that it was required,
because Chief required [the defendant] to pay 100 percent of the
building up front to get it delivered." Dedominici paid the
balance owed in the amount of $72,611.75 by check made out to
ASK (check three). The defendant put Dedominici's money into
ASK's general account and used it "for everything from fuel to
truck rentals, equipment rentals, workers' comp insurance,
payroll." Despite Dedominici making the payments to the
defendant, the building was never delivered.
Chief's normal procedure was that a contractor would meet
in person or speak over the phone with a Chief employee to
discuss any drawings or plans they might have for a customer.
The Chief employee would then enter relevant information into a
computer program that would generate a design and a price. This
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information was then typically used to build the building once
it was paid for by the contractor. If the contractor was a
certified builder authorized to use Chief's computer program
themselves to generate pricing, Chief would not require advanced
payment but typically would accept cash on delivery. Once the
building was built, a Chief employee would contact the
contractor and tell them that the building was ready to be
delivered by Chief.
Around the same time the defendant entered into a contract
with Dedominici, the defendant also became a certified Chief
builder and completed a different project as a certified
builder. Inferentially, then, he knew that obtaining the status
of a certified Chief builder allowed the defendant to enter
building information into the Chief computer program himself and
allowed him to wait until delivery to pay Chief. Accordingly,
at the time the defendant presented Dedominici with an invoice
for $72,611.75, accompanied by a statement that payment of that
amount was required for Chief to deliver the building, the
defendant was aware that such payment was not in fact required.
The defendant entered the measurements of the building into the
Chief computer program, received a price, and alerted Wayne
Hickey, a regional sales manager at Chief, that billing would
"be in order." Chief prepared a standard written agreement for
the defendant to order a building. The defendant signed the
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form and sent an email message back, and Chief began
constructing the building.
A couple of weeks before November 27, 2019, what Chief
understood to be the anticipated delivery date, and within days
of receiving check three under the premise that it was required
for delivery, the defendant contacted Hickey and stated that the
delivery would have to be postponed. After this conversation,
Hickey was unable to get in touch with the defendant regarding
this project and was in possession of the constructed building.
By November 19, 2019, Hickey had only received $3,600 from the
defendant in relation to the construction of this building.
The building never arrived and was accordingly never
erected. At some point after he told Hickey to stop delivery of
the building and stopped communicating with Hickey, in an effort
to justify the delays, the defendant told Dedominici that his
daughter had died. The defendant's daughter had not, in fact,
died. Although Chief was prepared to deliver the building on or
around November 27, 2019, the defendant continued to evade
Hickey and tell Dedominici that the project was delayed.
Dedominici and the defendant continued to stay in communication
until December 2019, at which point the defendant told
Dedominici that, due to an error attributable to Chief, the
building was not completely ready. In late December of 2019,
Dedominici contacted Chief directly and was referred to Hickey.
5
At this point, it became clear to Dedominici that the building
was ready to be delivered, that the defendant had not paid
Chief, and that now, without payment in full, Chief would not
deliver it. Shortly after Dedominici contacted the police, he
lost contact with the defendant. Hickey later found the
defendant working on a different project, but the defendant did
not talk to Hickey about Dedominici's project.
Discussion. "[P]rosecution for larceny by false pretenses
requires proof that (1) a false statement of fact was made; (2)
the defendant knew or believed that the statement was false when
he made it; (3) the defendant intended that the person to whom
he made the false statement would rely on it; and (4) the person
to whom the false statement was made did rely on it and,
consequently, parted with property." Commonwealth v. Cheromcka,
66 Mass. App. Ct. 771, 776 (2006), quoting Commonwealth v.
Williams, 63 Mass. App. Ct. 615, 620 (2005). The defendant
argues that the judge erred in denying his motions for a
required finding of not guilty because the Commonwealth failed
to provide any evidence of the second element: the defendant
knew or believed that the statement was false when he made it.
"We review the denial of a motion for a required finding of not
guilty to determine 'whether the evidence offered by the
Commonwealth, together with reasonable inferences therefrom,
when viewed in its light most favorable to the Commonwealth, was
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sufficient to persuade a rational jury beyond a reasonable doubt
of the existence of every element of the crime charged.'"
Commonwealth v. Barry, 481 Mass. 388, 397-398 (2019), quoting
Commonwealth v. Whitaker, 460 Mass. 409, 416 (2011). "Because
the defendant moved for [a] required finding[] at the close of
the Commonwealth's case and again at the close of all the
evidence, '[w]e consider the state of the evidence at the close
of the Commonwealth's case to determine whether the defendant's
motion should have been granted at that time. We also consider
the state of the evidence at the close of all the evidence, to
determine whether the Commonwealth's position as to proof
deteriorated after it closed its case.'" Commonwealth v.
O'Laughlin, 446 Mass. 188, 198 (2006), quoting Commonwealth v.
Sheline, 391 Mass. 279, 283 (1984).
"A defendant . . . cannot be convicted of larceny by false
pretenses absent proof of an intention to deprive at the time of
the representation." Commonwealth v. Long, 90 Mass. App. Ct.
696, 700 (2016), quoting Cheromcka, 66 Mass. App. Ct. at 782.
Because the defendant's state of mind often cannot be proven
with direct evidence, the Commonwealth may attempt to meet its
burden with "inferences drawn from evidence of relevant
circumstances." Long, supra, quoting Commonwealth v. Oliver, 60
Mass. App. Ct. 770, 776 (2004).
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We need not decide whether the Commonwealth met its burden
by presenting evidence of the defendant's intent while making
statements prior to receiving the first two checks. The
evidence regarding the defendant's intent while making a false
statement in an effort to secure check three, when viewed in
conjunction with all of the other evidence, is sufficient to
satisfy the Commonwealth's burden. The evidence was that
Dedominici paid the November 6, 2019, invoice of $72,611.75,
because the defendant told Dedominici that the building was
ready and was going to be delivered once the defendant paid for
it, but he (the defendant) did not have enough money, so
Dedominici needed to make a final payment for the building to be
delivered. Given that this was a false statement because the
defendant did not need to pay for the building for it to be
delivered, we examine the evidence in connection to this
statement to determine if it was sufficient to establish that
the defendant possessed the requisite knowledge and intent when
he made it. We hold that it was.
The testimony was that Hickey met with the defendant
shortly after the defendant told Dedominici that he was short on
cash, received check three, and deposited it in ASK's general
account. At that meeting the defendant, knowing from recent
experience that Chief accepted cash on delivery from certified
builders, stated that the delivery would have to be postponed.
8
Then he used Dedominici's money to pay ASK's operating expenses
and lied to Dedomonici about the delivery delays by attributing
them to errors by Chief and the death of a child. Given the
close proximity of the meeting with Hickey and these other
events to the defendant's false statement, and viewing this
evidence in the light most favorable to the prosecution, we
believe the evidence was sufficient to establish beyond a
reasonable doubt that the defendant knew when he asked for check
three that the money was not required for the building to be
delivered and that, in fact, he was going to direct that it not
be delivered because ASK needed the cash to operate. While the
defendant argues that the evidence simply indicates only that he
was not good at conducting business, we examine evidence in this
context in the light most favorable to the Commonwealth. See
Latimore, 378 Mass. at 676-678. The judge, since this was a
bench trial, was presented with this defense and was free to
either accept it or disregard it.
We also take a moment to examine the evidence as it relates
to the fourth element of larceny by false pretenses: the person
to whom the false statement was made did rely on it and,
consequently, parted with property. See Long, 90 Mass. App. Ct.
at 700. Although it could be argued that Dedominici had a
preexisting contractual obligation to pay the defendant, the
payment of the third check at that time was not necessary
9
because the defendant was a Chief builder. The final payment
could thus be made at the time when the building was actually
delivered. Instead, the defendant told Dedominici that the
invoice balance needed to be paid before the building could be
delivered. A review of the trial transcript reveals that the
parties viewed Dedominici's payment obligations under the
contract differently, however when viewing the evidence in the
light most favorable to the Commonwealth, we believe it
supported a reasonable inference that he was not required to pay
the deposit when the defendant gave him the final invoice.
While we have considered the parties' arguments regarding
whether the defendant possessed the requisite intent at the
inception of the contract between the defendant and Dedominici,
we take this opportunity to note that we do not examine this
case in a contract law framework and need not decide when the
contract was formed and what work, if any, was performed after
the contract's inception. The criminal statement at issue need
not be a statement intended to form a contract. In this
context, we need only decide whether the evidence presented was
sufficient to establish beyond a reasonable doubt that the
defendant made a false statement of fact that he knew or
believed was false when he made it and did so with the intent
that the person to whom he made the false statement would rely
on it and that the person to whom the false statement was made
10
did rely on it when parting with the property at issue. See
Cheromcka, 66 Mass. App. Ct. at 776.
In summary, the Commonwealth presented sufficient evidence
that did not deteriorate after the defendant testified and from
which a reasonable finder of fact could conclude the following:
(1) the defendant's statement that check three was required for
the building to be delivered was false; (2) the defendant knew
the statement was false when he made it; (3) the defendant made
the statement intending to cause Dedominici to part with his
money; (4) Dedominici relied on the statement; and (5) the
statement caused Dedominici to part with his money in a way he
may not have had the false statement not been made. We
therefore need not examine the closer issue whether the
Commonwealth's evidence of statements and actions prior to the
payment of check one and check two are similar or dissimilar to
the type of evidence presented in Long, 90 Mass. App. Ct. at 700
(evidence only sufficient to show nonperformance of contract and
11
insufficient to show that defendant possessed requisite intent
to defraud when making assurances to victim). Accordingly, we
affirm.
Judgment affirmed.
By the Court (Green, C.J.,
Walsh & Smyth, JJ. 2),
Assistant Clerk
Entered: March 20, 2024.
2 The panelists are listed in order of seniority.
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