Commonwealth v. Tavares

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

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.