Commonwealth v. Olusegun A. Adekunle.

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-70

COMMONWEALTH

vs.

OLUSEGUN A. ADEKUNLE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Olusegun Adekunle, appeals from a judgment

of conviction for larceny by false pretenses after a jury-waived

trial in the District Court, and from the denial of his motion

for a new trial asserting a claim of ineffective assistance of

trial counsel. We affirm.

Background. The judge could have found the following

facts. In February 2017, Ashley Day responded to a Facebook

Marketplace listing for a 2005 Honda Accord. She communicated

via Facebook's Messenger application with Olusegun Adekunle, who

told her that the vehicle was still available, and they arranged

to meet at a car lot adjacent to "an automotive place." The

next day, Day met with the man whom she identified as the

defendant in court. After a test drive -- during which the

defendant accompanied Day and the two had "a decent
conversation" that got "a little bit personal" -- and some

haggling, Day agreed to buy the car for $4,400. Day and the

defendant both signed a bill of sale reflecting that Day had

made a $400 deposit and owed a balance of $4,000, and the

defendant allowed Day to take a photograph of the certificate of

title, which she needed to insure the car. They agreed to meet

the next day for Day to pay the balance in exchange for the car.

Day returned at approximately noon the next day and, seeing

that the defendant was not there, called him to complete the

sale. The defendant asked her to meet him later in the day. As

Day was driving away, a woman called out, "Ashley," and waved

her down. The woman said that she had just got off the phone

with "Ogie," who had instructed her to complete the sale. The

woman invited Day into the woman's car and produced a manila

folder with information about the sale. The woman knew Day's

first and last name, the last four digits of Day's Social

Security number, the make and model of the car, how much money

Day had given the defendant the previous day, and how much Day

owed. After a brief conversation, Day handed the woman $4,000

in cash and two license plates she intended to transfer to the

Accord. The woman assured Day "that the car would be detailed

and the plates would be attached," and that the defendant would

give Day the keys and the title certificate when she returned

later in the evening. The woman gave Day two receipts that had

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already been filled out: an undated receipt showing that

"Ashley" had paid $400 to "Royal Motor," and a correctly dated

receipt showing that "Ashley" had paid $4,000 to "Royal Motor"

for a Honda Accord. 1

Day returned to the lot and met the defendant at

approximately 4:30 P.M. After the defendant showed her the

title, bill of sale, and car key, Day told him she had already

given the $4,000 to his coworker. The defendant denied having

any coworker or knowing the woman Day described and accused her

of lying to him. Day called the police, but she left within a

few minutes because the police were taking too long to arrive

and she had to pick up her children.

Day drove directly from the lot to the police station and

made an initial statement to an officer before leaving to get

her children. The following morning, she returned and made a

formal report to Brockton Police Sergeant Andrew Kalp. At some

point, Day gave Kalp a piece of paper with the spelling of the

defendant's name and his cell phone number. Kalp showed Day a

Registry of Motor Vehicles (RMV) driver's license photograph on

his computer screen, which Day confirmed was the person who had

sold her the vehicle.

1 Day had no knowledge of the defendant's affiliation with
Royal Motor, if any.

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The defendant testified in his own defense. His testimony

about the test drive, negotiation, and payment of a $400 deposit

was consistent with Day's. When he met Day the following

afternoon and asked for the $4,000 balance, and she responded

that she had already given it to "a girl that worked for [him],"

the defendant told her that "there's no girl that works for me"

and asked why she did not call him before handing $4,000 to a

stranger. The defendant told Day to call the police and offered

to help identify the woman who took the money. When asked on

direct examination why he did not refund Day's $400 deposit, the

defendant replied that Day had "voided the contract that we had"

by not paying the balance due. He testified that he suspected

Day of lying to him or running a scam.

Discussion. 1. Charging instrument. The criminal

complaint against the defendant charged a single count of

"larceny over $250 by false pretense . . . in violation of G. L.

c. 266, § 34 and § 30 (1)." The defendant argues that the

complaint was defective under art. 12 of the Massachusetts

Declaration of Rights because it impermissibly alleged

violations of two statutes in a single count and thus did not

give him fair notice of the charge against him.

Because Adekunle did not raise this issue before trial, and

it is not based on "a failure to show jurisdiction in the court

or to charge an offense," it is statutorily waived. G. L.

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c. 277, § 47A. See Commonwealth v. Lamont L., 438 Mass. 842,

845 (2003); Commonwealth v. Hrycenko, 417 Mass. 309, 312 (1994).

Even if we were to review for error creating a substantial risk

of a miscarriage of justice, see Commonwealth v. Fernandes, 430

Mass. 517, 521 n.13 (1999), cert. denied sub nom. Martinez v.

Massachusetts, 530 U.S. 1281 (2000), none is apparent. The

general larceny statute, G. L. c. 266, § 30 (1), encompasses the

common-law crime of larceny by false pretense. See Commonwealth

v. Labadie, 467 Mass. 81, 87 & n.7 (2014); Commonwealth v.

Mills, 436 Mass. 387, 391–392 (2002). Indeed, G. L. c. 266,

§ 34, merely states, "Whoever, with intent to defraud and by a

false pretence, induces another to part with property of any

kind . . . shall be guilty of larceny," without specifying the

punishment. Section 30 (1) provides the maximum fines and terms

of imprisonment for larceny, depending on the value of the

property taken. Thus, § 34 can only be understood in tandem

with § 30 (1). The complaint was "sufficient to enable the

defendant to understand the charge and to prepare his defense."

G. L. c. 277, § 34. 2 See Commonwealth v. Canty, 466 Mass. 535,

547 (2013).

2 G. L. c. 277, § 34, "is applicable to complaints, as well
as indictments." Commonwealth v. Lourenco, 438 Mass. 1018, 1019
n.2 (2003). See G. L. c. 277, § 79.

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2. Sufficiency of the evidence. The defendant asserts

that the evidence was insufficient to prove his guilt as a joint

venturer with the woman who took Day's money. Specifically, he

argues that his motion for a required finding of not guilty at

the close of the Commonwealth's case should have been allowed

because the Commonwealth failed to prove that the woman was

acting in concert with the defendant as opposed to on her own.

To prove the defendant's guilt as a joint venturer with the

unknown woman, the Commonwealth was required to show that he

knowingly participated with her to induce Day to part with

$4,000 under the false pretense that Day would receive the car

in return. 3 See Commonwealth v. Zanetti, 454 Mass. 449, 467–468

(2009) ("When there is evidence that more than one person may

have participated in the commission of the crime," Commonwealth

must prove "beyond a reasonable doubt that the defendant

knowingly participated in the commission of the crime charged,

alone or with others, with the intent required for that offense"

[footnote omitted]).

3 Because we conclude that the evidence was sufficient to
convict the defendant as a joint venturer, we need not address
whether his personal act of taking, and refusing to return, the
$400 deposit from Day is sufficient in itself to prove larceny
over $250. (The criminal complaint issued prior to the
effective date of St. 2018, c. 69, § 136, which increased the
property value for felony larceny from $250 to $1,200.)

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The defendant suggests that the unknown woman could have

acquired Day's first and last name, a plausible nickname for the

defendant, the make and model of the car in question, the fact

that Day had given the defendant a $400 deposit, and the fact

that she owed another $4,000 from a source other than the

defendant. 4 While the defendant's hypothesis is perhaps

possible, the detailed information that the woman possessed was

far more likely to have been intentionally supplied by the

defendant than by spying, eavesdropping, or casual conversation.

"When reviewing a motion for a required finding of not

guilty, the question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt" (quotation and citation omitted).

Commonwealth v. Schoener, 491 Mass. 706, 714 (2023). See

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The

relevant question is whether the evidence would permit a jury to

find guilt, not whether the evidence requires such a finding."

Commonwealth v. Brown, 401 Mass. 745, 747 (1988).

4 The evidence did not explain how the unknown woman might
have acquired Day's Social Security number. We do not consider
the woman's knowledge of Day's Social Security number as
evidence of the defendant's guilt, however, because there was no
evidence that Day gave the defendant her Social Security number.

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Based on the unknown woman's knowledge of details that only

someone familiar with Day's and the defendant's prior

negotiations would know, the judge could rationally conclude

that the defendant had provided the details that would trick Day

into parting with her money and that the woman was acting in

concert with him. The Commonwealth was not required to

foreclose all other possibilities. See Commonwealth v. Platt,

440 Mass. 396, 401 (2003) ("The Commonwealth need not exclude

every reasonable hypothesis of innocence to prove its case, if

the record viewed in its entirety supports a conclusion of guilt

beyond a reasonable doubt" [quotations and citation omitted]).

It was the judge's province, as trier of fact, to determine

where the truth lay. See id.

3. Ineffective assistance of counsel. The defendant

asserts that his trial counsel was ineffective for failing to

move to suppress Day's pretrial identification of the defendant

from the RMV photograph. He argues that the identification was

inadmissible because it was unnecessarily suggestive and, had it

been suppressed, Day's in-court identification at trial would

also have been inadmissible.

To prevail on a motion for new trial premised on

ineffective assistance of counsel, "the defendant must show that

the behavior of counsel fell measurably below that of an

ordinary, fallible lawyer and that such failing 'likely deprived

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the defendant of an otherwise available, substantial ground of

defence.'" Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255

(2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). Where the motion arises from trial counsel's failure to

file a motion to suppress, the defendant must also establish

that the motion to suppress likely would have been granted. See

Commonwealth v. Comita, 441 Mass. 86, 91 (2004); Commonwealth v.

Lykus, 406 Mass. 135, 142-143 (1989).

"One-on-one identification procedures are generally

disfavored as inherently suggestive." Commonwealth v. Carlson,

92 Mass. App. Ct. 710, 712 (2018). "To succeed in suppressing

evidence of such an identification, however, the defendant must

prove by a preponderance of the evidence that the police

procedure was 'so unnecessarily suggestive and conducive to

irreparable mistaken identification as to deny [the defendant]

due process of law.'" Id., quoting Commonwealth v. Dew, 478

Mass. 304, 306-307 (2017). One-on-one identification procedures

may be permissible where "the police have good reason to use the

procedure and they avoid any special elements of unfairness,

indicating a desire on the part of the police to stack the deck

against the defendant" (quotations and citation omitted).

Commonwealth v. Sylvia, 57 Mass. App. Ct. 66, 69 (2003).

At the motion hearing, trial counsel testified that she did

not move to suppress the pretrial identification because Day

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would likely have been able to identify the defendant from their

multiple interactions. The judge, referring to the

communications between Day and the defendant online, in person,

and over the phone, concluded that Kalp's display of the

defendant's RMV photo to Day "did not create a substantial risk

of mistaken identification" such that "a motion to suppress the

identification had no realistic chance of success." We agree. 5

Showing Day the RMV photo was not unduly suggestive;

indeed, it was not suggestive at all. The procedure was not

"designed by the police to suggest to the victim that the

defendant is the criminal." Commonwealth v. Coy, 10 Mass. App.

Ct. 367, 372 (1980). To the contrary, Kalp showed Day the photo

to confirm the information that Day had brought to him. Thus,

Kalp had the "good reason" to show Day the photo in the interest

of "prompt confirmation of the accuracy of investigatory

information, which, if in error, will release the police quickly

to follow another track." Commonwealth v. Austin, 421 Mass.

357, 362 (1995). The procedure was not designed to "stack the

deck" against the defendant.

5 We need not belabor the standard of review for the denial
of the defendant's new trial motion, as we would reach the same
result whether we were conducting de novo review or according
"special deference" to the motion judge, who also presided at
trial. See Commonwealth v. Zagrondy, 443 Mass. 93, 103 (2004).

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Moreover, because Day had "a solid basis for focusing on,

and remembering, the appearance of the person" she had

encountered on Facebook and in two face-to-face meetings,

including a "decent" and somewhat "personal" conversation during

the test drive, viewing the RMV photo "was not particularly

suggestive." Commonwealth v. Fielding, 94 Mass. App. Ct. 718,

722 (2019). Cf. Commonwealth v. Thomas, 476 Mass. 451, 461

(2017) ("[W]here a witness believes [she] knows the perpetrator

from prior interactions and knows the perpetrator's name, the

risk of misidentification . . . is less than where the witness

looks at an array in search of an unknown person [she] saw only

during the commission of the crime").

As a motion to suppress the out-of-court identification was

not likely to succeed, counsel's failure to pursue such a motion

did not amount to conduct falling measurably below that of

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reasonably competent counsel. The judge did not err or abuse

his discretion in denying the new trial motion.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Milkey,
Massing & Neyman, JJ. 6),

Assistant Clerk

Entered: May 22, 2024.

6 The panelists are listed in order of seniority.

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