Com. v. Murphy

• Citation: 70 Mass. App. Ct. 774,877 N.E.2d 604
• Decision Date: 30 November 2007
• Docket Number: No. 06-P-1811.,06-P-1811.
• Parties: COMMONWEALTH v. Michael David MURPHY.
• Court: Appeals Court of Massachusetts

877 N.E.2d 604

70 Mass. App. Ct. 774

COMMONWEALTH v. Michael David MURPHY.

No. 06-P-1811.

Appeals Court of Massachusetts, Bristol.

Argued October 4, 2007.

Decided November 30, 2007.

Brad P. Bennion for the defendant.

Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, BROWN, & GREEN, JJ.

KANTROWITZ, J.

Michael David Murphy was convicted, after a jury-waived trial, of two counts of uttering a counterfeit note pursuant to G.L. c. 267, § 10.¹ On appeal, he argues that (1) the Commonwealth failed to prove beyond a reasonable doubt that he knew the bills were counterfeit and had the intent to defraud; and (2) the uttering of counterfeit Federal Reserve notes is not criminalized under G.L. c. 267, § 10. We affirm.

Facts. At approximately 11:30 P.M., on February 28, 2006, the defendant entered Pub 76 in Taunton. He remained there for about an hour, during which he purchased several shots of alcohol and beers for himself, as well as drinks for other patrons at the bar.

Two witnesses, the bartender, Sheila Charbonneau, and a patron, Roland Hill, testified that the defendant paid for each round of drinks (between three and four rounds) with a twenty dollar bill. They further testified that each time the defendant made payment, Charbonneau gave him paper currency in change. Hill, who accepted the defendant's offer to purchase drinks, further testified that the defendant paid for the drinks each time by pulling a twenty dollar bill out of one pocket and depositing the change into another pocket.

The defendant also asked to purchase food, but the kitchen was closed by the time he arrived. Specifically, he stated that he wanted to order a "big steak."

The defendant left Pub 76 at approximately 12:45 A.M., after last call. After closing for the night, Charbonneau exchanged her tip money for what turned out to be two counterfeit twenty dollar bills from the register.

Shortly after leaving Pub 76, the defendant arrived at a second bar, Lounge 44, which is also located in Taunton. The defendant asked the bartender, Brenda King, to "set up the bar," but she refused to do so because she had already called last call. The defendant then asked for a shot of "Jack," paying for the drink with a twenty dollar bill. King testified that the twenty dollar bill did not look normal, specifically stating that "it looked like the funny papers, and on the bottom of it, it was jaggered, it wasn't even straight," and that it was "a variety of colors, it was like a pinkish with a purple and a blue." Having had previous training in detecting counterfeit notes from prior employment, she marked the bill with a counterfeit detector pen² and determined that the bill was, in fact counterfeit.

King returned the bill to the defendant, informing him that she could not accept it because it was counterfeit. King testified that "he told me that he had more if I needed one, and I said I can't accept that. That's when I told him if you want a shot of Jack, you have to give me a regular $5 bill."³ The defendant then produced six dollars, a five dollar bill and a one dollar bill both of which were legitimate. He told King that he had received the counterfeit bill from Pub 76.

After the defendant finished his drink and left Lounge 44, King called her boss's son to explain what had happened. The son called his father, the owner of the bar, who told his son to check the security videotape and produce both stills and a videotape record. The next morning the owner of Lounge 44 called Pub 76 and spoke with someone, informing him or her of what had transpired.⁴ Charbonneau subsequently received a call from her manager advising her to check her tip money for counterfeit bills. Charbonneau found two counterfeit twenty dollar bills and returned them to her employer. These two bills, which the defendant was charged with uttering, had the same serial number.

The defendant was subsequently arrested. At trial, the Commonwealth and defense stipulated to the fact that when the defendant was arrested, "he had no counterfeit money on him or what appeared to be counterfeit money [and] that there was no computer, no printer, and no other money in his room."

At the close of the Commonwealth's case as well as at the close of all of the evidence,⁵ the defendant filed motions for a required finding of not guilty, both of which were denied. He was convicted and now appeals.

Sufficiency of the evidence. In reviewing a denial of a motion for a required finding, we must determine "whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the [factfinder] `might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.'" Commonwealth v. Pope, 406 Mass. 581, 584, 549 N.E.2d 1120 (1990), quoting from Commonwealth v. Clary, 388 Mass. 583, 588, 447 N.E.2d 1217 (1983).

General Laws c. 267, § 10, as amended by St.1974, c. 369 § 3, punishes persons who utter certain counterfeit bills and notes "knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud." The defendant argues that the Commonwealth failed to prove beyond a reasonable doubt that the defendant had the requisite knowledge of the money's counterfeit status or intent to defraud to warrant a conviction under the statute. The Commonwealth argues that reasonable inferences concerning the defendant's knowledge and intent may be drawn from his actions.

"Circumstantial evidence is competent to establish guilt beyond a reasonable doubt." Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989). "An inference drawn from circumstantial evidence `need only be reasonable and possible; it need not be necessary or inescapable.'" Ibid., quoting from Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977).

"A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial." Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). See Commonwealth v. Sabetti, 411 Mass. 770, 779-780, 585 N.E.2d 1385 (1992); Commonwealth v. O'Connell, 438 Mass. 658, 664, 783 N.E.2d 417 (2003) ("proof of intent to injure or defraud may be inferred from the circumstances").

Here, the conduct of the defendant allowed for a reasonable inference that he had knowledge of the bills' counterfeit status when he presented them at Pub 76. First, as the trial judge noted, the defendant was intent on spending his money. He bought multiple rounds of alcohol for himself, offered to buy drinks for all the patrons in Pub 76, and stated that he wanted a "big steak."

Second, the defendant repeatedly paid for drinks at Pub 76 and Lounge 44 with twenty dollar bills, despite having smaller, genuine bills in his possession. Charbonneau, the bartender at Pub 76, testified that the defendant paid for drinks with a twenty dollar bill at least four times, and that she gave him change each time. Hill, a patron in the bar, corroborated this testimony, stating, "I believe he ended up ordering like three or four times." This conduct leads to an inference that the defendant was trying to unload his counterfeit bills as quickly as possible, exchanging them for genuine currency of smaller denominations. See United States v. Rice, 652 F.2d 521, 526 (5th Cir.1981) ("Among those acts from which guilty knowledge may be inferred is the use of larger counterfeit bills for small purchases rather than genuine change in the possession of the perpetrator").⁶

Third, the defendant segregated the genuine bills he received as change from the counterfeit twenty dollar bills already in his possession. Hill testified that the defendant pulled twenty dollar bills out of one pocket and deposited the smaller bills he received in change into another pocket. This conduct indicated that the defendant was tracking the bills that he had not yet converted to genuine money. See United States v. Perez, 698 F.2d 1168,...