Commonwealth v. Thompson

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14-P-886 Appeals Court

COMMONWEALTH vs. BRENISHA THOMPSON.

No. 14-P-886.

Middlesex. March 24, 2016. - June 3, 2016.

Present: Katzmann, Rubin, & Wolohojian, JJ.

Fraud. False Impersonation & Identity Fraud. Receiving Stolen
Goods. Evidence, Fraud. Constitutional Law, Police power,
Assistance of counsel, Harmless error. Due Process of Law,
Jurisdiction over nonresident, Assistance of counsel.
Jurisdiction, Nonresident. Error, Harmless. Practice,
Criminal, Duplicative convictions, Lesser included offense,
Assistance of counsel, Harmless error.

Indictments found and returned in the Superior Court
Department on January 26, 2012.

The cases were tried before Sandra L. Hamlin, J.

Patricia E. Muse for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney
(Charles A. Koech, Assistant District Attorney, with her) for
the Commonwealth.

KATZMANN, J. The defendant was convicted by a Superior

Court jury of two counts of credit card fraud over $250 in

violation of G. L. c. 266, § 37C(e); two counts of credit card
2

fraud under $250 in violation of G. L. c. 266, § 37B(g); two

counts of identity fraud in violation of G. L. c. 266, § 37E(b);

one count of receiving stolen property with a value in excess of

$250 in violation of G. L. c. 266, § 60; and one count of

attempted credit card fraud in violation of G. L. c. 274, § 6.

The defendant now appeals. She challenges the sufficiency of

the evidence underlying the identity fraud convictions and the

credit card fraud convictions relating to one of the victims.

We conclude that the defendant's identity fraud convictions

are duplicative of her credit card fraud convictions, and that

her conviction of receiving a stolen purse is legally

inconsistent with her conviction of obtaining that purse through

fraudulent use of a credit card. Accordingly, we reverse and

vacate the defendant's convictions of identity fraud and

receiving stolen property. We conclude that jurisdiction on the

credit card fraud charges was properly laid in Massachusetts.

Although it was error to admit the contested portions of a

voicemail message the defendant left for the investigating

detective in which she indicates that she would not talk with

him unless an attorney was present and that she was asserting

her right not to speak, we conclude that the error was harmless

beyond a reasonable doubt, and that the error does not require

reversal of the remaining convictions in the context of the

trial as a whole. We thus affirm the credit card convictions.
3

Background. In March of 2011, Ranwa Raad of Boxborough

received a telephone call from Deckers.com, a seller of shoes,

inquiring about a $476 charge made to her credit card on March

22, 2011. Raad promptly contacted her credit card company to

report this as an unauthorized charge. As a result, the credit

card was canceled. On the same day of the Deckers.com charge,

Raad's card was also used for a $326 charge on Coach.com, which

markets purses. Raad had not made this purchase either.

On March 29, 2011, Raad went to her local police station to

report the unauthorized activity on her credit card. She met

with Detective Benjamin Levine, who began an investigation.

Levine obtained transaction detail records for the Coach.com

charge and determined that while the charge was billed to Raad

at her home address in Boxborough, the electronic mail (e-mail)

address associated with the order was "Brenisha@yahoo.com" and

the purchased item (a purse) was shipped via Federal Express

(FedEx) delivery service to "Bre Thompdon" at 145 Eastern

Avenue, apartment 203, in Manchester, New Hampshire.

Around the same time in March, 2011, Pat Luoto of Hudson

received a credit card statement with numerous charges from

February and March that she had not made or authorized,

including charges to Comcast, a digital cable television and

Internet service provider; New Hampshire Turnpike EZ Pass (EZ

Pass); Red Oak Property Management in Manchester, New Hampshire;
4

and Backcountry.com, which markets winter apparel. Luoto had

never used Comcast, did not have an EZ Pass registered in New

Hampshire, did not know what Red Oak Property Management was,

and did not frequent Backcountry.com. Luoto called her credit

card company to report the problem. In addition, there were

charges on her card for hotels in New York City, a restaurant in

Rye, New York, a prepaid wireless telephone company, and

Mycleanpc.com that Luoto had not made or authorized. Luoto's

credit card was canceled as a result of the fraud.

After meeting with Raad, Levine contacted Detective Jean

Roers of the Manchester, New Hampshire, police department and

asked her to visit 145 Eastern Avenue, apartment 203, in

Manchester to see if she could ascertain the status of the FedEx

delivery from Coach.com.

When Roers knocked on the door at the Eastern Avenue

apartment on March 29, 2011, it was the defendant, Brenisha

Thompson, who answered. The defendant acknowledged that she had

received a Coach brand purse in a FedEx package. She said that

she had not been expecting the purse, but that she thought it

was sent to her by her former boy friend, Vincent Rennie. The

defendant added that Rennie had previously asked her if she was

willing to make some extra money on the side by receiving

packages of clothing, shoes, and purses in the mail and

repackaging and shipping the merchandise elsewhere or
5

transferring the goods to others in person. She stated,

however, that Rennie was living in New York or New Jersey and

that, other than one e-mail message, they had not been in

contact since a fight at Christmas.

Roers told the defendant that the purse was evidence and

would have to be turned over to the police in Boxborough. The

defendant complied, first emptying the purse of her wallet,

keys, makeup, and other personal belongings before handing it

over to Roers.

Detective Levine initially suspected that the unauthorized

charges on Raad's credit card related to a larger international

scheme in which unassuming people are recruited on a classified

advertisement Web site such as Craigslist or social networking

sites to receive shipments of fraudulently obtained goods and

repackage and reship them, typically out of the country. As a

result, he obtained shipping records from both United Parcel

Service (UPS) and FedEx for the defendant's address. These

records revealed only one additional delivery to the defendant's

Manchester apartment, a UPS delivery from Backcountry.com.

Levine was later able to determine that the Backcountry.com

delivery was a woman's North Face brand fleece jacket that had

been ordered for $88.70 using Luoto's credit card on March 6,

2011. The billing address on the order was Luoto's Hudson

address. The e-mail address associated with the order, however,
6

was once again "Brenisha@yahoo.com." The online order for the

fleece jacket was placed from an "IP address" registered to

Comcast in Manchester, New Hampshire. Levine reached out to

Luoto and ultimately discovered the additional unauthorized

charges to Luoto's credit card recited above.

Levine's investigation also revealed that the apartment on

Eastern Avenue was rented in the name of "Bre Thompson" through

Red Oak Property Management, though the rent was sometimes paid

by the defendant and sometimes by Rennie. Levine further

obtained audio recordings of calls to a wireless telephone

company in which an individual identifies himself as Vincent

Rennie and uses Luoto's credit card information to add minutes

to a prepaid wireless account while claiming that Luoto's credit

card belonged to the defendant. The New York City hotel charges

on Luoto's card were linked to an e-mail address ostensibly

maintained by Rennie, "VRennie51@gmail.com."

Neither Raad nor Luoto had ever met the defendant,

authorized her to use their credit cards, or used the e-mail

account "Brenisha@yahoo.com." Luoto further testified that she

did not know Vincent Rennie.

As part of Levine's investigation, he sought to meet with

the defendant to discuss the case. On April 6, 2011, the

defendant called Levine and left him the following voicemail

message:
7

"Hi, Detective [Levine]. This is Brenisha
Thompson. I was calling to leave you a message to say
that I would not be able to make it down today for
[indiscernible] my mom's house down in [Hampden] this
past weekend looks good, so I just wanted to see her
and my family and I was planning on going down there
next weekend to see her, but I'm going to go down
there [indiscernible] and actually to go and see her.

"I feel that if I did go down there without legal
representation, I just wanted to have you know an
attorney there I want to be very cooperative with you
and I just wanted to assert my right to not to say
anything and you know if they're going to proceed with
this [investigation] I guess, you know, where are we
going to go from there. I mean I think I know
[Vincent] did not do this. I know [who did it], but
you know I can't prove that this person he did it
because he's been [wrecking] my life for the past few
years and he has [indiscernible]. It's something that
I've been dealing with between you and I all these
[indiscernible].

"I will contact you back. You have my number.
Okay. Sorry. Have a nice day."

Following indictment, the defendant was tried and convicted

by a Superior Court jury on the charges identified above. She

now appeals.

Discussion. We first consider the defendant's challenges

to the identity fraud convictions and the question whether they

are duplicative of the credit card convictions, the

jurisdictional viability of her receiving stolen property and

credit card convictions, and the sufficiency of the evidence

with respect to the convictions in connection with the use of

Luoto's credit card. Finally, we address the defendant's claim
8

of reversible error in the admission of her April 6 voicemail

message.

1. Identity fraud convictions. The defendant challenges

the sufficiency of the evidence underlying her identity fraud

convictions, contending, in part, that if the Commonwealth could

rely on the same proof concerning use of the victims' credit

cards to support both the credit card fraud convictions and

identity fraud convictions, then identity fraud would

effectively be a lesser included offense of credit card fraud.

While we do not accept the argument in the form presented by the

defendant, we conclude, based on the elements of the offenses of

credit card fraud and identity fraud pursued by the Commonwealth

here, that identity fraud is a lesser included offense.1

"[A] lesser included offense is one which is necessarily

accomplished on commission of the greater crime." Commonwealth

1
"When statutory crimes can be violated in multiple ways,
comparison of their elements must focus on the specific
variations that the defendant is alleged to have committed. For
example, if a greater offense contains two independent theories
of liability, it is sufficient that a lesser offense be subsumed
within the particular theory that was alleged." Commonwealth v.
Roderiques, 462 Mass. 415, 421 (2012). Here, the Commonwealth
alleged that the defendant violated G. L. c. 266, § 37C(e), as
amended by St. 1987, c. 468, § 3, "by representing without the
consent of the cardholder that [s]he is said cardholder" as
opposed to "by representing that [s]he is the holder of a card
and such card has not in fact been issued." Accordingly, we
focus on that specific variation of credit card fraud, as well
as the specific variation of identity fraud charged by the
Commonwealth, in conducting the elements-based test infra.
9

v. Porro, 458 Mass. 526, 531 (2010), quoting from Commonwealth

v. D'Amour, 428 Mass. 725, 748 (1999). When comparing the two

crimes, we consider the elements of the crimes rather than the

facts of any particular case. See Commonwealth v. Vick, 454

Mass. 418, 431 (2009). "A crime is a lesser-included offense of

another crime if each of its elements is also an element of the

other crime." Commonwealth v. Roderiques, 462 Mass. 415, 421

(2012) (quotation omitted). With these principles in mind, we

turn to the elements of the two crimes at issue here.

The parties have not alerted us to any authority that has

distilled the elements of credit card fraud, and we are not

aware of any. Cf. Commonwealth v. Pearson, 77 Mass. App. Ct.

95, 98 n.9 (2010) (noting that "neither the Superior Court nor

the District Court has a model instruction for violations of

[G. L. c. 266,] § 37B or § 37C"). Under the provision of G. L.

c. 266, § 37C(e), relevant here, "[w]hoever, with intent to

defraud . . . obtains money, goods or services or anything else

of value by representing without the consent of the cardholder

that he is said cardholder . . . , where the value of money,

goods or services obtained in violation of this section is in

excess of two hundred and fifty dollars . . . shall be punished

. . . ." The statute further defines the term "cardholder" as

"the person named on the face of a credit card to whom or for
10

whose benefit the credit card is issued by an issuer." G. L.

c. 266, § 37A, as amended by St. 1969, c. 832.

We therefore discern that conviction under this variation

of credit card fraud requires proof beyond a reasonable doubt

that the defendant (1) represented himself as the person named

on a credit card; (2) did so without the consent of the person

named on the card; (3) by doing so obtained money, goods, or

services or anything else of value in excess of $250; and (4)

did so with the intent to defraud.2 Aside from relaxing the

requirement that the thing obtained have a value in excess of

$250, we do not see that the fraudulent use of a credit card

under $250 penalized by G. L. c. 266, § 37B(g), comprises

different basic elements.

In terms of the variation of identity fraud at issue here,

a conviction under G. L. c. 266, § 37E(b), "requires that the

2
The elements we identify here generally track those
recited by the judge in her final charge: (1) that the
defendant falsely represented herself, directly or indirectly,
as another person; (2) that she did so without that person's
consent; (3) that she made such a representation to obtain
money, goods, services or anything of value; and (4) that she
did so with the intent to defraud. Although the judge's
recitation of the elements does not include the term
"cardholder," the judge had previously recited portions of some
of the indictments that use the "cardholder" language,
repeatedly referred to the charge as fraudulent use of a credit
card, and, immediately before breaking down the elements,
specified that the statute at issue "prohibits anyone from
intending to defraud, by obtaining money, goods, services or
anything of value, by representing, without the consent of the
cardholder, that she is the cardholder" (emphasis added).
11

Commonwealth prove beyond a reasonable doubt four elements,

specifically, that a defendant (1) posed as another person; (2)

did so without that person's express authorization; (3) used the

other person's identifying information to obtain, or attempt to

obtain, something of value; and (4) did so with the intent to

defraud." Commonwealth v. Giavazzi, 60 Mass. App. Ct. 374, 376

(2004) (footnote omitted). See Commonwealth v. Catalano, 74

Mass. App. Ct. 580, 582 (2009). The statute explains that to

"pose" means "to falsely represent oneself, directly or

indirectly, as another person or persons" and that "personal

identifying information" means "any name or number that may be

used, alone or in conjunction with any other information, to

assume the identity of an individual, including," inter alia,

"any name" and a "credit card number." G. L. c. 266, § 37E(a),

inserted by St. 1998, c. 397, § 1. Thus, we might restate the

first element of identity fraud to read that a defendant (1)

falsely represented himself, directly or indirectly, as another

person.

In comparing the elements of the two offenses, it is

immediately apparent that they share an identical fourth element

in the requirement of an intent to defraud. There is also

overlap between the first elements of the two offenses because

it is implicit in credit card fraud's lack of consent

requirement (the second element) that the person representing
12

himself as the cardholder in the first element is falsely

representing himself, whether directly or indirectly, as another

person, namely the cardholder.3 The second element of credit

card fraud requires that the defendant make this representation

without the cardholder's consent. Identity fraud's second

element requires that the defendant represent himself as another

person without the other person's express authorization. We do

not see a meaningful difference between the use of "consent" and

"authorization" in this context and so note that anything

accomplished without consent is necessarily also done without

express authorization.4 Finally, with respect to their third

elements, when, by using the name on a credit card, someone

obtains money, goods, or services or anything else of value,

whether it be in excess of $250 or less than $250, that person

has necessarily obtained or attempted to obtain something of

3
In expounding on the elements of identity fraud, the
Supreme Judicial Court recently highlighted this overlap: "A
false representation may be made . . . indirectly, e.g., through
an electronic program where a person enters the credit card
number of another attempting to act as the owner of that card."
Commonwealth v. Mattier (No. 2), 474 Mass. 261, 267 n.9 (2016).
4
We understand the Legislature's unqualified use of
"consent" in the credit card fraud statute to encompass both
implicit and express consent. Cf. Commonwealth v. Ryan, 79
Mass. App. Ct. 179, 187-188 (2011). Thus, a lack of "consent"
under this statute implies lack of both implicit and express
consent and, consequently, lack of express authorization.
13

value by using personal identifying information, which includes

names and credit card numbers.

In sum, the variation of identity fraud under G. L. c. 266,

§ 37E(b), of which the defendant was convicted here "is

necessarily accomplished on commission of the greater crime[s]"

of the variations of credit card fraud under G. L. c. 266,

§§ 37C(e) and 37B(g), of which the defendant was convicted, and

so it is a lesser included offense. Porro, 458 Mass. at 531.

While there are many ways to commit identity fraud without

committing credit card fraud, there are no ways to commit the

credit card fraud charged here without committing the identity

fraud charged here.5 Because its third element encompasses

attempts to obtain anything of value, identity fraud is also a

lesser included offense of the attempted credit card fraud of

which the defendant was convicted as the Commonwealth's theory

is that the defendant "fail[ed] in perpetration" or was

"prevented in . . . perpetration," G. L. c. 274, § 6, of credit

card fraud with respect to the Deckers.com order (by which she

5
It matters not that there are multiple ways of posing and
using personal identifying information that would satisfy the
elements of identity fraud and yet which do not involve the use
of a credit card. "[W]hen a lesser offense contains an element
that can be satisfied in multiple ways, and the purportedly
greater offense can be satisfied in only one of those ways, the
former is still included within the latter. Any person who
violates the greater offense will still always violate the
lesser offense." Roderiques, 462 Mass. at 421.
14

attempted to purchase three pairs of Ugg brand shoes and boots)

only to the extent that she did not actually obtain the things

of value that she sought.

Because we have concluded that identity fraud is a lesser

included offense of the defendant's convictions of credit card

fraud (both over $250 and under $250) and attempted credit card

fraud, it is apparent that the defendant stands convicted of

cognate offenses, raising the specter of duplicative convictions

and attendant double jeopardy concerns. See Porro, 458 Mass. at

531 ("[D]ouble jeopardy prohibits a defendant from being

convicted and, therefore, sentenced, for both the greater and

lesser offense as a result of the same act").6 Where a defendant

is charged with both greater and lesser included offenses and

"the judge does not clearly instruct the jury that they must

find that the defendant committed separate and distinct criminal

acts to convict on the different charges, the conviction of the

lesser included offense must be vacated as duplicative, even in

the absence of an objection, if there is any significant

possibility that the jury may have based convictions of greater

6
We note that because the issue whether identity fraud is a
lesser included offense of credit card fraud was not raised at
trial, neither the judge nor the jury were asked to consider
whether the offenses rested on separate and distinct acts or the
prospect of duplicative convictions.
15

and lesser included offenses on the same act or series of acts."

Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).

Not surprisingly, given that the issue whether identity

fraud is a lesser included offense of credit card fraud was not

raised at trial, the record does not reflect that a separate and

distinct acts instruction was given. "That the judge instructed

the jury several times that they must consider each indictment

separately did not equate to informing the jury that the

[greater and lesser included] offenses must be factually based

on separate and distinct acts." Id. at 701.

Moreover, it is apparent from the record that all of the

Commonwealth's evidence relating to identity fraud concerned

actions the defendant took in furtherance of her various

fraudulent credit card transactions and her attempted credit

card fraud. Contrast id. at 702 ("[E]ven where, as here, there

was evidence of separate and distinct acts sufficient to convict

with respect to each assault and battery charge, the judge's

failure to instruct the jury that each charge must be based on a

separate and distinct act created a substantial risk of a

miscarriage of justice"). We therefore conclude that the

identity fraud convictions must be vacated as duplicative, and

the indictments dismissed.

2. Receiving stolen property. The defendant was also

convicted of receiving stolen property for her possession of the
16

Coach purse retrieved by Detective Roers from the defendant's

Manchester apartment in violation of G. L. c. 266, § 60.7 The

indictment for this offense alleges that the offense occurred

"at Boxborough, in the County of Middlesex." We, however, are

dubious of the jurisdictional basis for prosecuting this crime

in the Commonwealth. Although not initially raised by either

party, jurisdictional questions "may be raised at any time in

the progress of a case, including at the appellate level, and,

indeed, it is the duty of an appellate court, if it becomes

aware of a jurisdictional point, to raise it on its own motion."

Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392, 394 (1996).

See Commonwealth v. Andler, 247 Mass. 580, 581-582 (1924).8

"The general rule, accepted as 'axiomatic' by the courts in

this country, is that a State may not prosecute an individual

for a crime committed outside its boundaries." Vasquez,

petitioner, 428 Mass. 842, 848 (1999). Our jurisdictional

7
General Laws c. 266, § 60, as amended by St. 1987, c. 468,
§ 4, provides, in pertinent part: "Whoever . . . receives or
aids in the concealment of stolen or embezzled property, knowing
it to have been stolen or embezzled, . . . shall, . . . if the
value of such property exceeds two hundred and fifty dollars, be
punished . . . ." The statute was amended in 2014, effective
April 6, 2015 (St. 2014, c. 451, § 3); the amendment has no
bearing on this case.
8
After initial argument of this appeal, we ordered
supplemental briefing on the questions of jurisdiction for the
receiving stolen property and credit card offenses. We also
ordered supplemental briefing on the question whether identity
fraud is a lesser included offense of credit card fraud.
17

doubts are reinforced by long-standing precedent indicating that

Massachusetts lacks jurisdiction in cases of this kind where the

defendant is found in possession of stolen goods outside the

territorial boundaries of our Commonwealth even where the goods

in question were first stolen in the Commonwealth. See

Commonwealth v. Phelps, 192 Mass. 591, 593-594 (1906) ("Although

possession out of the Commonwealth of goods stolen in the

Commonwealth would not of itself warrant a conviction for

receiving them and aiding in their concealment here, evidence of

such possession would be competent against one accused of that

offence"); Commonwealth v. Obshatkin, 2 Mass. App. Ct. 1, 3

(1974).

In Phelps, the defendant had admitted to receiving the

goods in question in Williamstown. The defendant, however,

claimed that he did not learn that the goods were stolen until

the goods had been shipped out of State. In response to this

argument, the court approved a jury instruction that would have

led the jury to understand "that in order to convict they must

find that the defendant had acquired a guilty knowledge or

belief when the goods first came into his possession, which was

in this State or while they were in his possession subsequently

in this State." Phelps, 192 Mass. at 594. The clear

implication is that the defendant must both possess the stolen
18

goods and know that they are stolen while he is in the

Commonwealth in order to be convicted here.

Obshatkin also indicated that possession of the goods

within Massachusetts was essential. Obshatkin was "not a case

in which the crime, or part of the crime, was shown to have been

initiated beyond the boundaries of the Commonwealth but, rather,

a case in which certain links in the chain of circumstantial

evidence tending to prove the commission of a crime within the

Commonwealth were discovered elsewhere." Obshatkin, 2 Mass.

App. Ct. at 4 (citations omitted). Those links tended to

warrant an inference by the jury that "that the receipt did take

place in Massachusetts." Id. at 3. No similar inference is

available to the Commonwealth here.

It has been held that jurisdiction in the Commonwealth on

charges of receiving stolen property is proper regardless of

where the property was stolen so long as the defendant is in

possession, or aids in the concealment, of this property in

Massachusetts. See, e.g., Commonwealth v. White, 123 Mass. 430,

433 (1877); Commonwealth v. Carroll, 360 Mass. 580, 586 (1971).

But we are aware of no case, and the parties have not directed

us to any, that stands for the obverse proposition that one can

be convicted of receiving stolen property for control of stolen

goods outside the Commonwealth so long as the property was first

stolen in the Commonwealth. In this case, there is the added
19

complication of determining whence, and from whom,9 the item in

question, a Coach bag ordered over the Internet and apparently

shipped to New Hampshire from Florida, was "stolen."10

In considering the possibility that the underlying

fraudulent use of the credit card used to effectively steal the

bag serves as the basis for the proposition that the bag was

stolen in or from Massachusetts, we are led to the conclusion

that, in addition to an apparent lack of jurisdiction, the

defendant's conviction of receiving stolen property must be

vacated for a wholly separate reason. Where the defendant

stands convicted both of credit card fraud and knowing receipt

of the fruits of that fraud, the latter conviction must fall

because of the "well-established" principle, "as has been the

9
For example, the indictment alleges that the "leather bag"
in question is "the property of Coach."
10
The Commonwealth also invokes G. L. c. 277, § 58A, which
provides that the crime of receiving stolen property defined
under G. L. c. 266, § 28, as amended by St. 1971, c. 694, "may
be prosecuted and punished in the same jurisdiction in which the
larceny or embezzlement of any property involved in the crime
may be prosecuted and punished." Even if we agree for the sake
of argument that the Coach bag was stolen in Massachusetts, the
statute invoked by the Commonwealth "deals only with venue, and
does not confer jurisdiction." Commonwealth v. Armstrong, 73
Mass. App. Ct. 245, 253-254 (2008) (interpreting G. L. c. 265,
§ 24A, which "conveys dual venue for trial of a crime in which a
victim is transported within Massachusetts from one county to
another in order to commit the crime"). We interpret language
in Commonwealth v. Parrotta, 316 Mass. 307, 310-311 (1944),
citing G. L. c. 277, § 58A, and discussing "exten[sion of] the
territorial jurisdiction of the court" to similarly refer only
to venue.
20

law of the Commonwealth for more than a century, that a person

cannot be convicted of both larceny and receipt of the same

goods." Commonwealth v. Corcoran, 69 Mass. App. Ct. 123, 125,

128 (2007). See Commonwealth v. Nascimento, 421 Mass. 677, 683

(1996), citing Commonwealth v. Haskins, 128 Mass. 60, 61 (1880)

("It is well established that it is inconsistent in law for a

defendant to be convicted both of stealing property and of

receiving the same property").11

The defendant was found guilty on the indictment charging

her with fraudulent use of a credit card in obtaining "a leather

Coach bag." Thus, although it may be challenging to state

definitively from whom and where the bag was stolen, it is clear

from the jury's verdict that, to the extent the bag was

"stolen," the jury determined that it was stolen by the

defendant.

Consequently, we vacate the receiving stolen property

conviction and direct that the indictment be dismissed on the

11
As the Nascimento court explained, in cases such as this,
"[t]he jury should have been instructed that the defendant could
not be convicted of receiving stolen property if they found that
the defendant had stolen the same property. . . . When the
inconsistent verdicts were returned, the judge might have sent
the jury back for further deliberations with explanatory
instructions." 421 Mass. at 683.
21

basis of the legal inconsistency12 between the credit card fraud

conviction relating to the Coach purse and the receiving stolen

property conviction relating to the same purse. See Nascimento,

421 Mass. at 684-685; Corcoran, 69 Mass. App. Ct. at 125 n.2.

3. Credit card fraud. We are satisfied that jurisdiction

on the credit card fraud charges is properly laid in

Massachusetts. Under well-established principles, a State has

the power to make conduct or the result of conduct a crime if

the conduct takes place or the result happens within its

territorial jurisdiction. That the defendant was in New

Hampshire when she put into motion the credit card fraud by

using the victims' credit cards without authorization does not

deprive Massachusetts of jurisdiction where the defendant's

actions (including inputting the Massachusetts addresses of the

two victims as billing addresses) victimized two Massachusetts

residents who were present in Massachusetts when the fraud was

committed, and who were forced to account for unauthorized

charges and to have their cards canceled in Massachusetts.

12
Our cases have explained that "[t]he same facts cannot
lead to the conviction of a single defendant for both crimes
because a conviction of receipt of stolen goods requires that
the property already be stolen at the time of receipt."
Corcoran, 69 Mass. App. Ct. at 127 n.6. Here, the credit card
fraud -- and so the underlying theft -- was not complete until
the defendant obtained goods of value in excess of $250 (the
leather bag), which was the same point at which she received the
stolen property.
22

Under its broad police powers, Massachusetts "has power to

enact rules to regulate conduct, to the extent that such laws

are necessary to secure the health, safety, good order, comfort,

or general welfare of the community." Commonwealth v. Ora, 451

Mass. 125, 129 (2008) (quotation omitted). It is beyond dispute

that the credit card fraud statute -- by protecting

Massachusetts residents from credit card fraud and punishing

conduct that is violative of the safety and good order of

Massachusetts and the interests of the Commonwealth in ensuring

that those who are within its borders do not suffer from

criminality -- is a proper exercise of that police power. The

prosecution by Massachusetts in redress of the two cardholder

victims who resided in Massachusetts at the time of the

defendant's fraud thus falls squarely within that power.

Quite apart from this victimization, jurisdiction is proper

where the defendant violated her duty under G. L. c. 266,

§ 37C(e), to obtain consent from the cardholders to use their

credit cards. See Commonwealth v. Liotti, 49 Mass. App. Ct.

641, 642 n.2 (2000) ("A cardholder may consent to another person

using his or her credit card"). Where each cardholder victim

resided in Massachusetts at the time that her credit card was

fraudulently used, we consider the victim's nonconsent as a

"predicate act proving an offense element" that took place in

Massachusetts for purposes of establishing a jurisdictional
23

basis for the defendant's convictions of credit card fraud and

attempted credit card fraud.13 Commonwealth v. Armstrong, 73

Mass. App. Ct. 245, 251 (2008). See Vasquez, petitioner, 428

Mass. at 850 (referring to "general criminal-law rule that a

crime involving a failure to act is committed at the place where

the act is required to be performed" [quotation omitted]);

Cypher, Criminal Practice and Procedure § 2:18, at 56-57 (4th

ed. 2014) ("Crimes of omission are ordinarily regarded as

committed at the place where the required act should have been

performed, and the courts at such places have jurisdiction of

the offender even if he was not personally present at any time

therein"); Model Penal Code § 1.03(1)(e), at 34 (1985) (State

has jurisdiction where "the offense consists of the omission to

perform a legal duty imposed by the law of this State with

13
We further note that sound public policy reasons overlap
with this exercise of jurisdiction in that we should not require
victims to travel out-of-State to hold accountable those who
have defrauded them, especially where, as we discuss further
infra, there is nothing to suggest that they were victimized
because of their own out-of-State conduct. Although the
defendant here resided in a neighboring State (New Hampshire) at
the time of her crimes, in the era of online credit card fraud,
this same fact pattern might just as easily have involved a
defendant living on the other side of the country. The victim's
presence at the trials of these types of offenses is not a mere
courtesy, but a virtual necessity for sufficient proof for
conviction. Thus, in the context of the analogous lack of
"express authorization" element of identity fraud, we have
observed that "[o]rdinarily, absence of authorization will be
shown by the testimony of the person whose identity has been
used by another." Giavazzi, 60 Mass. App. Ct. at 377-378.
24

respect to domicile, residence or a relationship to a person,

thing or transaction in the State"). See also State v. Roberts,

143 So. 3d 936, 936 (Fla. Dist. Ct. App. 2014).14

Nor is prosecution in Massachusetts barred by "[t]he

general rule, accepted as 'axiomatic' by the courts in this

country, . . . that a State may not prosecute an individual for

a crime committed outside its boundaries." Vasquez, petitioner,

428 Mass. at 848. "Despite this general rule, . . . a State is

not deprived of jurisdiction over every criminal case in which

the defendant was not physically present within the State's

borders when the crime was committed." Ibid. Our courts have

recognized "a very limited exception allowing a State

extraterritorial jurisdiction over a criminal offense: the

'effects' doctrine." Commonwealth v. Armstrong, 73 Mass. App.

14
In Roberts, 143 So. 3d at 936, the court concluded that
Florida had jurisdiction over charges of fraudulent use of
personal identification filed against an out-of-State defendant
who used a Florida resident's name and Social Security number to
establish a utility account in Indiana because the defendant's
failure to obtain the victim's prior consent "was both an
omission of a duty imposed by Florida law and an element of the
underlying offense." The court reasoned that where the
underlying statute prohibited use of personal identification
information without authorization or prior consent, the duty to
the victim "is best characterized as an affirmative obligation
to obtain her prior permission in order to use her personal
information." Id. at 938. Jurisdiction was therefore
appropriate under a State statute providing that an offense
based on an omission to perform a duty imposed by Florida law,
which in this case was the "gravamen of the offense," is
committed within Florida regardless of whether the offender is
within or outside the State. Id. at 939.
25

Ct. at 249. "The 'effects' doctrine provides that '[a]cts done

outside a jurisdiction, but intended to produce and producing

detrimental effects within it, justify a State in punishing the

cause of the harm as if he had been present at the effect."

Vasquez, petitioner, 428 Mass. at 848-849, quoting from

Strassheim v. Daily, 221 U.S. 280, 285 (1911) (footnote

omitted).15 In the case before us, we are satisfied that the

effects of the credit card fraud were felt in the Commonwealth,

especially where the conduct specifically victimized citizens of

our Commonwealth while they were present in the Commonwealth.

Contrast Armstrong, 73 Mass. App. Ct. at 252-253.

Our conclusion, based on the effects test of Strassheim and

Vasquez, petitioner, is consistent with the decisions of other

courts that have confronted similar questions. For example, in

State v. Allen, 336 P.3d 1007, 1009 (N.M. Ct. App. 2014), the

Court of Appeals of New Mexico was presented with the question

whether the defendant could be prosecuted for identity theft in

New Mexico "when he never set foot in New Mexico, and all the

15
Insofar as the defendant appears to argue that the
Massachusetts courts lacked personal jurisdiction over her, we
note that a similar claim was rejected in Vasquez, petitioner,
428 Mass. at 846 ("The jurisprudence of personal jurisdiction
has no bearing on the question whether a person may be brought
to a State and tried there for crimes under that State's laws. .
. . The petitioner's claim is more properly viewed as an
argument [rejected by the court] that Oregon has no legislative
jurisdiction to criminalize acts that occur outside the
boundaries of the State").
26

acts of using Victim's identity occurred in other states." The

Allen court relied on Strassheim to "conclude that if a crime

has a detrimental effect in a state, that state has territorial

jurisdiction to prosecute the perpetrator notwithstanding that

the acts were committed entirely within another state." Id. at

1013. Where the victim "encountered issues trying to get a

driver's license in New Mexico" and "was mailed rental car bills

in New Mexico that were incurred by Defendant outside of New

Mexico," the court was satisfied that the defendant's

extraterritorial action had detrimental effects in New Mexico.

Id. at 1014. Here, the detrimental effects in Massachusetts of

the defendant's conduct, forcing the victims to account for

unauthorized charges and cancel their credit cards, are of

equally sufficient jurisdictional weight. Cf. G. L. c. 266,

§ 37E(d) (defining "financial loss sustained by a victim as a

result" of identity fraud, for which convicted offenders "shall"

be ordered to make restitution, to "include any costs incurred

by such victim in correcting the credit history of such

victim").

The Allen court's finding of jurisdiction was further

supported by its construal of the identity theft venue

provisions of N.M. Stat. Ann. § 30-16-24.1(G) (2009). That

statute directs that the crime "shall be considered to have been

committed in the county: (1) where the person whose identifying
27

information was appropriated . . . or . . . resided at the time

of the offense; or (2) in which any part of the offense took

place, regardless of whether the defendant was ever actually

present in the county." The court reasoned that this provision

served the dual purpose of establishing venue and,

notwithstanding the distinction between venue and jurisdiction,

setting forth "a legislative determination that because the

crime has an effect upon the victim in New Mexico, New Mexico

has territorial jurisdiction over the offense, even if the acts

are committed in another state." Allen, 336 P.3d at 1014.16

We find a similar legislative determination in the

Massachusetts Legislature's inclusion of subsection (f) of the

identity fraud statute, which provides, "police incident reports

[concerning identity fraud] may be filed in any county where a

victim resides, or in any county where the owner or license

holder of personal information stores or maintains said personal

information, the owner's or license holder's principal place of

business or any county in which the breach of security occurred,

in whole or in part." G. L. c. 266, § 37E(f), inserted by

16
Like the crimes of identity fraud and credit card fraud
charged here, one of the elements of identity theft in New
Mexico is that the defendant acted "without authorization."
Because of its conclusion based on Strassheim and the venue
statute, the Allen court determined that it was not necessary
"to determine whether the 'without authorization' of the crime
must occur where the victim resides." Allen, 336 P.3d at 1010.
28

St. 2007, c. 82, § 18. In empowering and directing local police

departments to pursue identity fraud investigations, the statute

reflects the Legislature's intent to protect victims of identity

fraud who reside in Massachusetts. This legislative intent

should apply equally to credit card fraud victims where, as we

have already discussed, a violation of G. L. c. 266, § 37C(e),

automatically includes an identity fraud violation. It is only

logical, if not inevitable, that the prosecution of the offense

will proceed, as it did here, in the jurisdiction where the

crime is reported to police and investigated. It would be

absurd to allow victims to effectively commence prosecution of

identity fraud where they reside but require them to report and

prosecute credit card fraud predicated on the same conduct in

another jurisdiction.

The kind of jurisdictional issue we confront in this case

is likely to appear with increasing frequency as criminals

exploit our digital and virtual interconnectedness to prey on

victims at a geographic remove. We do not suggest that our

analysis will govern all factual variations. But the potential

for complex factual variation need not detain us here. Because

the defendant failed to challenge the court's jurisdiction

below, "the issue of territorial jurisdiction was not a live one

at trial," Commonwealth v. Jaynes, 55 Mass. App. Ct. 301, 308

(2002), and any factual nuances that might bear on jurisdiction
29

were not explored. Although, as noted, we raised sua sponte the

question of jurisdiction and received supplemental briefing, we

are satisfied that there was jurisdiction (even if not exclusive

jurisdiction) in Massachusetts17 where the undisputed evidence

and inferences to be drawn therefrom support the conclusion that

the victims resided in Massachusetts at all relevant times and

felt the effects of the fraud in Massachusetts. See LaFave,

Substantive Criminal Law § 4.4(c)(1), at 308 (2d ed. 2003)

(discussing Strassheim's "effects doctrine" and noting that

"[o]n the other hand, a state probably has no power to protect

its own citizens from conduct by non-citizens taking place in

other states and resulting in harm there").18

17
Even prior to the Model Penal Code's rejection of "the
old common law doctrines of strict territoriality and of
assigning exclusive jurisdiction to the state where the last
element occurred," Model Penal Code § 1.03 Explanatory Note, at
35, courts in Massachusetts recognized the validity of
concurrent criminal jurisdiction in at least some cases, such as
larceny and homicide. For example, Commonwealth v. White, 358
Mass. 488, 492 n.7 (1970), quotes Justice Sedgwick's summary
disposal of the argument against overlapping jurisdiction in
Commonwealth v. Andrews, 2 Mass. 14, 22 (1806): "It is,
however, said that although . . . [one defendant] might be
punished in this state, he may still be punished in New
Hampshire. And wherefore should he not? For myself I feel no
such tenderness for thieves, as to desire that they should not
be punished wherever guilty. If they offend against the laws of
two states, I am willing they should be punished in both."
18
Our cases establish that where there is at least "a
'reasonable and possible inference'" that the offense was
committed outside the confines of Massachusetts, Commonwealth v.
Adelson, 40 Mass. App. Ct. 585, 590 (1996), the question
30

4. Sufficiency of evidence of use of Luoto's credit card.

The defendant contends that the Commonwealth failed to adduce

sufficient evidence of her use of Luoto's credit card to sustain

her credit card fraud convictions with respect to that victim.

For the reasons discussed below with respect specifically to

charges to pay her landlord (Red Oak Property Management) and

her EZ Pass fees as well as the purchase of the North Face

jacket from Backcountry.com, we are satisfied that, viewed in

the light most favorable to the Commonwealth, Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979), there was sufficient

circumstantial evidence to convict the defendant. The jury

could have inferred that, with the intent to defraud and without

Luoto's consent, the defendant represented that she was the

person named on Luoto's credit card in order to consummate each

of these transactions and, thereby, obtain goods and services in

violation of G. L. c. 266, § 37C(e).

"[w]hether a criminal act occurred within the territorial
boundaries of the Commonwealth, and thus whether the
Commonwealth has jurisdiction over the individual charged with
that act, is a question of fact to be settled by proof. As
such, it is an issue entrusted to the deliberative process of
the jury." Commonwealth v. Travis, 408 Mass. 1, 8 (1990)
(quotation omitted).

However, "[w]here none of the relevant facts as developed
during the trial [gives] rise to a reasonable and possible
inference [that the relevant conduct took place] outside the
confines of Massachusetts . . . the issue [is] properly within
the province of the judge, as matter of law." Commonwealth v.
Jaynes, 55 Mass. App. Ct. at 309 (quotation omitted).
31

5. The unredacted voicemail message and the rights to

counsel and silence. At the end of the direct examination of

Levine, the Commonwealth introduced a tape recording of a

telephone message left by the defendant for Levine. The

admissibility of the voicemail message was discussed at multiple

points in the proceedings. The Commonwealth sought to admit the

recording because its content conflicted with the defendant's

statement to Roers in which she blamed Rennie, enabling the

Commonwealth to argue that the "shift in stories" showed

consciousness of guilt. The Commonwealth contended that the

communication showed that the defendant was evasive and

"waffled" in her communication with the detective and provided

the jury with an opportunity to assess from her tone of voice

whether she was forthcoming. The defendant objected, noting,

inter alia, that the recording refers to the defendant's having

made and broken a number of appointments to see Detective

Levine, and that the defendant states that she does not want to

speak to the police without an attorney. Defense counsel argued

that the jury would draw an adverse inference against the

defendant based on her reluctance to meet with the police and

her desire for a lawyer.

The judge initially asked the Commonwealth if the voicemail

message could be played without the reference to the defendant's

wanting to talk to a lawyer. Although the Commonwealth had
32

initially expressed doubts about how quickly that could be done,

the prosecutor was confident it could be done by the following

morning and was to look into the technological feasibility of

redacting during a recess while the judge researched the

underlying legal issues. However, when the judge resumed the

bench twenty minutes later, she decided to play the voicemail

recording without redaction and give a limiting instruction.

On appeal, the defendant contends that admitting the

portion of her voicemail recording where she indicated that she

did not want to speak with the police without an attorney and

that she was asserting her "right to not to say anything"

violated her right to counsel and due process as guaranteed by

the Sixth and Fourteenth Amendments of the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights. While we agree that it was error to admit that portion

of the recording, we conclude that it was harmless beyond a

reasonable doubt and reject the defendant's claim that the

credit card convictions should be reversed.

a. Basic principles. "The right to the advice of counsel

would be of little value if the price for its exercise is the

risk of an inference of guilt." Commonwealth v. DePace, 433

Mass. 379, 383 (2001), quoting from Commonwealth v. Person, 400

Mass. 136, 141 (1987). Indeed, Massachusetts cases establish

that, at least under the State Constitution, even prearrest,
33

non-Mirandized invocations of the rights to silence or counsel

should not be used to argue consciousness of guilt before the

jury and should not even be introduced as evidence at trial

because of the risk that the jury will draw that adverse

inference. See Person, 400 Mass. at 141 (stating that it was

improper for prosecutor to seek "to have the jury draw an

inference of guilt from the defendant's decision to consult an

attorney promptly after the shooting" and prearrest);

Commonwealth v. Isabelle, 444 Mass. 416, 419 (2005) (testimony

regarding defendant's prearrest, post-Miranda request for

attorney in course of police questioning at hospital where her

minor child was treated for injuries for which she was later

charged "violated her State and Federal constitutional rights");

Commonwealth v. Nolin, 448 Mass. 207, 222 (2007) ("[T]he due

process protection embodied in the prohibition against arguing

guilt from a defendant's decision to consult a lawyer extends

beyond the police interrogation context").

While there are multiple contexts in which a defendant may

exercise her right to counsel (prearrest or postarrest, pre-

Miranda or post-Miranda, in comments to the police or others),

the general principle is that "requests to confer with counsel

are not a proper subject for comment." Commonwealth v.

Johnston, 467 Mass. 674, 689 (2014). "A defendant's decision to

consult an attorney is not probative in the least of guilt or
34

innocence, and a prosecutor may not imply that only guilty

people contact their attorneys." Person, 400 Mass. at 141

(quotation omitted).

"Assertion of the right to remain silent is highly

protected under Federal and State constitutional law. See,

e.g., Commonwealth v. Mahdi, 388 Mass. 679, 694-698 (1983)."

Commonwealth v. Chase, 70 Mass. App. Ct. 826, 830-831 (2007).

In the context of a noncustodial, prearrest exercise of the

right to silence, our courts have cautioned that where a

"defendant, who was clearly suspected of a crime and had good

reason to be cautious about what he said to the police,

expressly asserted his right to remain silent," "[s]uch an

assertion is 'not competent testimony against such defendants.'"

Id. at 832 (quotation omitted). See Commonwealth v. Sazama, 339

Mass. 154, 157 (1959) ("A man, being interrogated under

circumstances which reveal that he is suspected of crime, even

if not under arrest, certainly may properly assert his

constitutional right to consult counsel and may refuse, on the

advice of counsel or otherwise, to make statements. See art. 12

of the Declaration of Rights of the Constitution of

Massachusetts").

The risk that a jury will draw an improper adverse

inference from evidence of a defendant's desire to seek counsel

or stay silent is sufficiently great that even evidence
35

concerning a defendant's failure to meet with law enforcement

officers when requested should not be put before the jury.

"[E]vidence of a defendant's refusal to comply with a police

request may not be admitted because in so refusing a defendant

furnishes evidence against himself, and admission of that

evidence would violate art. 12." Commonwealth v. Conkey, 430

Mass. 139, 141 (1999) (evidence of defendant's initial assent

and subsequent failure to appear for fingerprinting should not

have been admitted).

In light of the clear guidance in the case law and

implications for the defendant's rights to counsel, silence, and

refusal to cooperate with the police, we conclude that the judge

should have insisted that the Commonwealth redact the voicemail

recording before it was played for the jury and submitted as

evidence for their use in deliberations. See Johnston, 467

Mass. at 689 ("All references to counsel . . . should have been

the subject of a motion to redact"). The failure to remove

portions of the recording addressing the defendant's failure to

meet with police, her desire to have counsel, and her desire to

assert her right not to say anything to the police was error.

b. Harmlessness beyond a reasonable doubt. Where the

defendant preserved her objection to the erroneous admission of

material that burdened her rights to counsel and silence, we

determine whether the error was harmless beyond a reasonable
36

doubt by considering the factors initially set out in Mahdi, 388

Mass. at 696-697: "(1) the relationship between the evidence

and the premise of the defense; (2) who introduced the issue at

trial; (3) the weight or quantum of evidence of guilt; (4) the

frequency of the reference; and (5) the availability or effect

of curative instructions" (footnotes omitted). See Johnston,

467 Mass. at 690 & n.5; Commonwealth v. Letkowski, 469 Mass.

603, 617 n.22, 619 (2014).19

"We proceed to analyze this case under the Mahdi factors,

keeping in mind our standard that in addressing an error of this

nature 'reversal is the norm, not the exception.'" Chase, 70

Mass. App. Ct. at 834, quoting from DePace, 433 Mass. at 385.

19
This is the most exacting standard of review to which the
defendant's claim would be entitled consistent with our case
law, discussed supra, that the error here violated the
defendant's constitutional rights, at least under the State
Constitution. That standard has not been applied in all cases
where prearrest, pre-Miranda references to counsel are involved.
See, e.g., Commonwealth v. Stuckich, 450 Mass. 449, 452-453
(2008). In Stuckich, 450 Mass. at 453, the court applied the
prejudicial error standard from Commonwealth v. Flebotte, 417
Mass. 348 (1994), to the defendant's challenge of an erroneous
jury instruction on consciousness of guilt where evidence had
been presented both (i) that the defendant responded to the news
from a detective that complaints had issued against him by
saying that either the defendant or his lawyer would follow up
with the detective and (ii) that the detective never heard back
from the defendant. While determining that the underlying
evidence did not qualify as consciousness of guilt evidence, the
court did not address whether the evidence should not have been
admitted in the first place or whether it (or comments by the
prosecutor referencing that evidence in closing) constituted
constitutional error. Stuckich, 450 Mass. at 452-454, 460.
37

Nevertheless, reversal is not automatic. The circumstances of

any given case will determine the outcome of the harmlessness

analysis. See, e.g., Commonwealth v. Peixoto, 430 Mass. 654,

661 (2000) (concluding that error in introduction of evidence of

defendant's reluctance to speak with police without counsel was

harmless where strength of Commonwealth's case was substantial,

"truly objectionable part of the exchange came from" defendant's

own testimony, defendant eventually gave statement to police,

prosecutor did not dwell on challenged evidence, and judge gave

"explicit and thorough" curative instruction).

i. The relationship between the evidence and the premise

of the defense. The defense was that Rennie was the culprit.

The defendant suggested that Rennie used her name, e-mail

address, and shipping address to have a plausible cover when he

was ordering women's merchandise and that any benefits the

defendant received (like rental payments) were just so Rennie

could continue to use her address to keep his scheme going. The

defense also pointed to the circumstantial nature of the

Commonwealth's case -- that there was no eyewitness who could

identify the defendant as having used the credit cards.

Evidence of consciousness of guilt from the defendant's shift in

stories and exculpation of Rennie was therefore important to the

Commonwealth's trial strategy to refute these arguments and to

impeach the defense. But the defendant's expression of her
38

desire to have counsel and to remain silent, as well as her

failure to cooperate with the investigation, were also

susceptible to consciousness of guilt interpretation and so

could have impermissibly undermined the premise of the defense.

As in Chase, 70 Mass. App. Ct. at 834, however, the

Commonwealth's proof of consciousness of guilt did not rely

heavily on the invocations of counsel and silence in the

voicemail. The Commonwealth relied on the nonobjectionable

portions of the voicemail message for that proof, specifically

the inconsistency between the defendant's implication of Rennie

to Roers and an unidentified third-party culprit in the

voicemail message, and "her tone of voice, her evasiveness in

that voicemail." Yet, it cannot be totally discounted that the

evasiveness could have been interpreted as a reference to the

defendant's failure to meet with Levine as much as her

inculpation of an anonymous, new, third-party culprit who she

claimed had been "wrecking" her life for years.

Still, this is not a case where the prosecution explicitly

argued that the defendant's desire to consult a lawyer (or

remain silent or decline to meet with police) was consciousness

of guilt. Compare Person, 400 Mass. at 142 ("The assistant

district attorney erred in arguing that the decision to consult

an attorney rather than a friend was evidence of consciousness

of guilt"). This factor (the relationship between the evidence
39

and the defense) weighs in favor of the defendant, but not

heavily so.

ii. Who introduced the issue at trial. As noted, the

Commonwealth sought to introduce the voicemail recording and it

was admitted over the defendant's objection. Thus, this factor

supports the defendant.20

iii. The weight and quantum of evidence of guilt. As in

Chase, 70 Mass. App. Ct. at 835, "[t]he circumstantial evidence

of guilt here was very strong." As discussed more fully below,

in order to sustain a conviction of credit card fraud, the

Commonwealth must prove that, with the intent to defraud, the

defendant represented herself as the person named on a credit

card without the cardholder's consent and thereby obtained

money, goods, or services. See G. L. c. 266, § 37C(e).

The evidence of the defendant's knowing participation in

the credit card fraud, alone or jointly with Rennie, is nearly

20
On the other hand, we note that after the introduction of
the voicemail recording, the defendant's cross-examination of
Detective Levine elicited context for the investigation and her
interactions with him. Thus, Levine testified that he had
initially thought that the defendant was basically a pawn and
remailer in a larger international scheme (and that remailers
often do not get paid for their labor as promised and are out of
pocket on shipping expenses). Levine had told the defendant
that she would likely not be charged if she cooperated with his
investigation, but that she would be charged if she failed to do
so. He also told the defendant that he could not force her to
come in for an interview, and he testified that she was
"certainly free to exercise whatever . . . will she wants to and
come in or not come in."
40

overwhelming. The Commonwealth introduced ample proof that the

defendant either represented herself as each of the victims, or

assisted Rennie in doing so, in the course of numerous

transactions using the victims' respective credit cards. The

purchases on the victims' credit cards directly benefited the

defendant and were made under circumstances that strongly

indicated her knowledge and involvement, such as the payment of

rent on her apartment, payment of her EZ Pass fees, and the

purchase of clothing and accessories that the defendant wanted

(like the North Face jacket) and retained (like the Coach purse

in which she was already storing personal items when Roers

collected it as evidence). Levine traced at least one of the

orders to a Comcast "IP address" in Manchester, and the jury

heard evidence that the defendant used Comcast at her Manchester

apartment.

More damningly, all of the online orders used the

"Brenisha@yahoo.com" e-mail address. The Commonwealth

introduced extensive evidence that this was the e-mail address

used by the defendant for personal and professional

communication, and that she was the only one who used it. This

evidence included e-mail messages in which she sent her resume

to apply for jobs and sent photographs of herself to Rennie and

another individual. In addition, the password used in

connection with the order of the Ugg shoes through Deckers.com
41

was "Corvell83," a combination of the defendant's middle name

and the year of her birth. The defendant used this same

password when creating other accounts, such as job recruiting

Web sites, a Wal-Mart money card, and an account on the social

media Web site Twitter, often in conjunction with the

"Brenisha@yahoo.com" e-mail address.

Some of the e-mail messages introduced further cemented the

connection between the defendant and the fraudulent use of the

victims' credit cards. For example, when the defendant

attempted to purchase the three pairs of Ugg shoes through

Deckers.com, the purchase was rejected on suspicion of fraud.

In addition to the call that alerted Raad to the suspicious

activity on March 23, 2011, at 8:32 A.M., the manufacturer of

Ugg shoes sent an e-mail message addressed to Raad requesting

that she contact the manufacturer's order processing department

to provide more information for her protection. However,

because the defendant's e-mail address had been entered in the

purchase interface, this message intended for Raad was routed to

the defendant's Yahoo account. An e-mail message was then sent

from the defendant's Yahoo account at 5:30 P.M. that same day

asking, "What type of info do you need?" The Commonwealth also

introduced a March 10, 2011, e-mail message from the defendant's

Yahoo account sent in response to an inquiry from a Web site

called Bizrate seeking confirmation of receipt of the North Face
42

jacket ordered from Backcountry.com in which the defendant

replied: "Love my fleece, I will be buying the thicker fleece."

The jury could permissibly infer that the defendant input

the victims' names, contact information, and credit card numbers

into various online order forms or otherwise conveyed that same

information to vendors and that in so doing, and in responding

to customer service inquiries, the defendant was fraudulently

representing herself to be the victim named on the card she was

using in order to obtain goods and services. The circumstantial

nature of the evidence does not undermine its strength. Cf.

Chase, 70 Mass. App. Ct. at 835 ("Although the evidence is

purely circumstantial in the instant case, it singles out the

defendant"). Despite the defendant's insistence to the

contrary, much of the evidence here did in fact single her out.

While Rennie is not excluded, the evidence clearly indicates the

defendant's knowing participation, such as the payments for her

rent and EZ Pass.

Moreover, because the Commonwealth requested and received

an instruction pursuant to Commonwealth v. Zanetti, 454 Mass.

449 (2009), the defendant's theory concerning Rennie's

involvement would not diminish the quantum of evidence of the

defendant's guilt in light of the strong evidence that she

"knowingly participated in the commission of the crime charged,

with the intent required to commit the crime." Id. at 468. The
43

Commonwealth not surprisingly had already teed up Zanetti

arguments in its closing, pointing out that it would be hard for

someone who is behind on her bills to claim she had no idea

payments on her behalf were made by someone else and that

"regardless of who is more or less involved, the fact is just

because she wasn't in on it alone doesn't mean that she wasn't

in on it."

The evidence that the defendant was aware of any scheme in

which Rennie was involved came from the defendant's own comments

to Roers. That she joined that scheme for her own benefit is

clearly inferable from her response to the e-mail message sent

by the manufacturer of the Ugg shoes to Raad in which the

defendant sought to resuscitate a fraudulent order charged to

Raad's card that had been placed on hold, her e-mail message to

Bizrate that she loved the fleece jacket ordered on Luoto's card

using her e-mail address, her retention and use of the Coach

purse ordered on Raad's card using her e-mail address, and the

use of the credit cards to pay for her housing and

transportation expenses.

Where the evidence is "truly overwhelming," that factor

alone has been found sufficient to render harmless an error of

this kind. DePace, 433 Mass. at 386. But even if we take the

view that the evidence was not quite so powerful, this factor

still weighs heavily in favor of the Commonwealth.
44

iv. Frequency of the reference. Aside from playing the

recording (which the jury also had in deliberations), the

Commonwealth did not explicitly reference the defendant's

comments about desiring a lawyer or asserting her right to stay

silent or breaking plans to meet with the police. Indeed, the

defendant concedes that "after admitting the tape, the

Commonwealth did not mention [the defendant's] consultation with

a lawyer." Compare id. at 385 (applying Mahdi factors on review

for substantial likelihood of miscarriage of justice and

reversing where erroneous introduction of defendant's request to

speak to attorney was "aggravated" by prosecutor's "special

treatment" of evidence, introducing it "not once, but twice" and

enlarging defendant's written invocation of counsel on monitor

"to maximize the impact on the jury"). As we noted favorably in

Chase, 70 Mass. App. Ct. at 835, here "[t]he prosecutor did not

. . . reference either statement in opening or closing or in

[her] own questioning. Nor was the point otherwise dwelt upon

or emphasized."

In its closing, presenting a litany of the evidence before

the jury, the Commonwealth asked the jury to consider "all of

the evidence . . . from the online orders[,] . . . the way the

defendant benefited from all of those purchases, her motive to

do it, the story that she told Detective Roers and how it

conflicts with the voicemail that she left later on for
45

Detective Levine, her tone of voice, her evasiveness in that

voicemail to Detective Levine, the fact that she had that Coach

purse with her, with all of her personal items, it adds up that

the defendant used [the victims'] credit cards and she used

their identifying information to obtain or to attempt to obtain,

the things that she wanted and that she couldn't have otherwise.

And for that reason, I would ask you to find her guilty of all

the charges." While the defendant suggests on appeal that the

reference to "evasiveness in the voicemail" was an invitation to

the jury to consider that her desire to have an attorney present

was evidence of consciousness of guilt, we discern "no

indication that the prosecutor intended or encouraged the jury

to draw that conclusion." Nolin, 448 Mass. at 222 (where

Commonwealth introduced recording of telephone conversation in

which defendant, already detained on suspicion of murder, asked

his friend to send lawyer immediately upon hearing that victim's

body had at last been located, and although recording was

introduced to show "that the defendant's reaction to news of

discovery of the body was inconsistent with innocence," court

found no substantial likelihood of miscarriage of justice where

"the prosecutor made no mention of or argument premised on

[defendant's] request that [his friend] send his attorney). In

short, the limited nature of the statements in the voicemail

message and the Commonwealth's studious avoidance of any
46

explicit reference to the defendant's desire for counsel or

silence favor the Commonwealth. Indeed, the only party to

explicitly raise the defendant's failure to meet with Levine was

the defendant herself.21

v. Availability or effect of curative instructions. Prior

to playing the voicemail recording, the judge gave the following

limiting instruction: "in a moment you're going to hear the

content of a telephone call. And you may hear the defendant

refer to the issue of wanting to talk to a lawyer. That fact is

not anything that you should hold against the defendant, nor

should you draw any adverse inference. It's just part of what

she said, but the fact that she may have wanted to speak to a

lawyer is no evidence of guilt." The judge repeated a similar

limiting instruction in the final charge. That the "palliative

benefits of a curative instruction," DePace, 433 Mass. at 385,

were present here is another factor in favor of the

21
In closing argument, defense counsel said: "You have
this DVD, this phone call left on the voicemail of Detective
Levine at the Boxborough Police Department. Now, what does she
say? She goes on about family issues, her mother and so on.
So, from the Commonwealths perspective -- where's the meat
potatoes in this? It's when she says, 'Vincent had nothing to
do with it.'" Defense counsel went on to explain her
implication of an unidentified third party and her failure to
meet with Detective Levine as the actions of an
"unsophisticated," "naive" woman who is "guilty of poor choice
in boyfriends."
47

Commonwealth. Prompt curative instructions can suffice to

offset this kind of error. See Peixoto, 430 Mass. at 661 & n.7.

The defendant contends that the instruction further drew

the jury's attention to the offending portion of the voicemail

message. However, although the defendant objected to the

introduction of the unredacted voicemail message, she did not

object to the judge's proposal to give a limiting instruction or

to the instruction itself. Moreover, "[j]urors are presumed to

follow a judge's clear instructions and disregard [inadmissible

evidence]." Commonwealth v. Auclair, 444 Mass. 348, 358 (2005).

While the instructions did not explicitly prohibit the jury

from drawing adverse inferences from the related invocations of

silence or the defendant's failure to meet with police, the

defendant did not actually stay silent or refuse to interact

with the police. After the challenged portion of the message,

the defendant goes on to make a substantive, self-serving

statement to Levine, saying that Rennie is not responsible and

that, while she cannot prove it, the person responsible is a

third party who has "been [wrecking] [her] life for the past few

years." Despite its ultimately incriminating effect, her

statement was obviously intended to further exculpate herself as

well. When a defendant follows a request for counsel or silence

with a statement to the police, it mitigates the impact of any

impermissible inference because the jury is not given the
48

impression that the defendant was hiding relevant information or

left to speculate as to why the defendant asked to speak with

her attorney. Isabelle, 444 Mass. at 421. See Peixoto, 430

Mass. at 661 ("The defendant's ultimate decision to give a

statement to the police also mitigates any impermissible

inference the jury may have drawn from his initial hesitation to

speak with them").

In sum, on review of the evidence in the entire case, we

conclude that the Mahdi "scoreboard," 388 Mass. at 697,

indicates that the erroneously admitted portions of the

voicemail message are harmless beyond a reasonable doubt.

"There was very strong circumstantial evidence of the

defendant's guilt and significant evidence of consciousness of

guilt on the part of the defendant that did not involve" her

assertion of constitutional rights. Chase, 70 Mass. App. Ct. at

836. The challenged statements were confined to one piece of

evidence "and were not echoed by the prosecutor in [her]

questions or opening or closing. We therefore consider this one

of the exceptional cases where objected-to and erroneous

testimony regarding the defendant's assertion of [constitutional

rights to counsel and silence] does not require reversal."

Ibid.

Conclusion. The judgments on the counts alleging identity

fraud and receiving stolen property are vacated, the verdicts
49

are set aside, and the indictments thereon are dismissed. The

judgments on the counts alleging credit card fraud and attempted

credit card fraud are affirmed.

So ordered.