Commonwealth v. Michael D. Thompson.

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.

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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.

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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

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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

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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

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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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