Commonwealth v. Geane

• Decision Date: 12 October 2000
• Docket Number: P-1263
• Citation: 51 Mass.App.Ct. 149,744 N.E.2d 665
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. GARY GEANE. 99-
• Court: Appeals Court of Massachusetts

744 N.E.2d 665 (Mass.App.Ct. 2001)

COMMONWEALTH vs. GARY GEANE.

99-P-1263

Court of Appeals of Massachusetts

October 12, 2000.

March 13, 2001.

County: Hampden.

Present: Brown, Smith, & Lenk, JJ.

Larceny. Practice, Criminal, Indictment. Uttering Forged Instrument. Words, "Property."

Indictments found and returned in the Superior Court Department on January 20, 1998.

The cases were tried before Bertha D. Josephson, J.

Richard J. Fallon for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

BROWN, J.

The defendant was convicted of uttering, G. L. c. 267, § 5, attempted larceny, G. L. c. 274, § 6, larceny, G. L. c. 266, § 30,¹ and larceny of property with a value greater than $250, G. L. c. 266, § 30 (nine counts). On appeal, the defendant claims that (1) the indictment for attempted larceny was defective, (2) the indictments for the larceny counts likewise were defective, and (3) the trial judge erred in her jury instructions with respect to both the uttering and attempted larceny counts. We address each claim in turn.

Introduction. This case compels us to revisit a nettlesome issue considered in Commonwealth v. Moreton, 48 Mass. App. Ct. 215 (1999): namely, in what circumstances a merchant may be convicted of larceny for failing to satisfy a commercial debt. The complexity of the particular problem here flows largely from the Commonwealth's erroneous charging decisions. The government's flawed approach, particularly with respect to the indictment charging attempted larceny, requires reversal of many of the defendant's convictions.

First the facts, which we rehearse in such detail as is minimally sufficient to provide a backdrop for our analysis. The defendant, a general contractor, agreed to construct a sports facility for an entity called Soccer City at a total cost of approximately $330,000. The money was to be paid in installments of $54,000 (upon signing the contract), $39,647 (at the commencement of work), $39,647 (upon completion of the foundation), $117,000 (upon delivery of a prefabricated structure), $39,647 (upon commencement of the building frame), and $39,647 (upon commencement of siding).

Passing over many extraneous details, after paying the defendant approximately $241,000 (the initial $54,000, the first payment of $39,647, $117,000 when the building materials arrived, and an advance of $30,000), Soccer City ordered the defendant to produce lien releases evidencing that all the subcontractors had been paid. All future payments by Soccer City were made contingent upon receipt of the releases.

Apparently unable or unwilling to satisfy approximately $60,000 in unpaid subcontractor invoices, the defendant forged lien releases and submitted them to Soccer City. To put it mildly, the attempted deception was inartful, and it was immediately sniffed out by representatives of Soccer City. The defendant left the job, and Soccer City expended another $140,000 attempting to complete the project. At the time of trial, the structure remained unfinished.

Other pertinent details are included in our analysis as necessary.

Analysis. The uttering indictments relate to the forged lien releases. The attempted larceny indictment is based upon the defendant's effort to secure, by false pretenses, money from Soccer City. The ten larceny counts allege that the defendant converted property of the various unpaid subcontractors (a separate count for each subcontractor).

1. Attempted larceny. As the defendant argues, and the Commonwealth concedes, the indictment for attempted larceny is defective. Specifically, it fails to set out an overt act, and so does not describe a crime. See Commonwealth v. Anolik, 27 Mass. App. Ct. 701, 710-711 (1989). That indictment must be dismissed.² We express no opinion as to whether the Commonwealth may reindict for the crime of attempted larceny.

2. Larceny. As to the ten larceny indictments (nine counts of larceny of property with a value greater than $250 and one count of simple larceny), the defendant argues in his brief that they also should be dismissed because each alleges "theft of money" from the subcontractors, whereas the evidence at trial proved only theft of goods or services. Since this issue is raised for the first time on appeal,³ our review of the defendant's claim is limited to assessing whether any error has resulted in a substantial risk of a miscarriage of justice.⁴ See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

Even assuming arguendo that there was proof here only of theft of goods or services -- not money -- the defendant is not entitled to relief on this theory. The purpose of an indictment is to apprise a criminal defendant of the nature of the charges against him, and to permit him to prepare a defense. See Commonwealth v. Hayes, 311 Mass. 21, 24-25 (1942). The defendant makes no argument in his brief -- nor reasonably could he -- that he was actually surprised at trial by the government's allegations. Similarly, he makes no claim that he would have altered his defense in any way had the indictments specified "goods or services" instead of (or in addition to) "money" as the object of any conversion. See Commonwealth v. Amirault, 404 Mass. 221, 233-234 (1989). Finally, we note that the defendant never requested a bill of particulars, nor was there anything else before or at trial that evinced any confusion on his part about the nature of the Commonwealth's charges. See Commonwealth v. Vinnie, 428 Mass. 161, 167, cert. denied, 525 U.S. 1007 (1998). Contrast Commonwealth v. Baker, 368 Mass. 58, 64-65 (1975).

In these circumstances, this case is controlled by G. L. c. 277, § 35, which has been deemed to provide that "a divergence between an indictment and the Commonwealth's proof will not be a basis for acquittal where the indictment . . . correctly specif[ies] the essential elements of the crime, and the alleged variance does not prejudice the defendant in his defense." Commonwealth v. Costello, 392 Mass. 393, 404 (1984). This rule has especial force where the variance involves surplusage in the charging instrument -- i.e., unnecessary specifics about the crime alleged beyond the bare elements (here, the express reference to "money" rather than the generic "property").⁵ Id. at 403-404. No substantial risk of a miscarriage of justice is posed by the form of the larceny indictments.

Nonetheless, there is a serious problem with the larceny counts. We agree with the defendant that, as to the subcontractors, there is no evidence that he stole any money. Without citation to relevant authority, the Commonwealth argues in its brief that the defendant received money for the subcontractors from Soccer City as a trustee or agent. On this basis, the government contends that these funds belonged to the subcontractors as soon as the money was paid over to the defendant, and that a conversion occurred when the defendant failed to tender the funds to the various subcontractors on the basis of their invoices. We do not accept this characterization.

This case is unlike Commonwealth v. Moreton, 48 Mass. App. Ct. 215 (1999), where a fisherman entrusted a blue fin tuna to the defendant for sale at auction, and the defendant failed to pay the fisherman the proceeds, subsequently declaring bankruptcy. The dissent characterized the arrangement as a consignment sale,⁶ and concluded on that basis that the defendant held the fisherman's funds on a bailment, and converted them to his own use when he failed to pay. Id. at 221-222 (Brown, J., dissenting).

Here, there was no special fiduciary relationship between the defendant and the subcontractors. Absent such a special relationship, a contractor does not hold funds for subcontractors subject to any form of bailment, pledge, or trust.⁷ See id. at 222 (Brown, J., dissenting) (bailment analysis "limited strictly to the realm of consignment sales and cognate arrangements"). Absent a contract provision making the contractor the trustee of any funds received for a subcontractor, if a contractor fails to pay a subcontractor, any efforts on the latter's part to obtain payment must be pursued through civil, not criminal, proceedings.⁸ Compare id. at 219-220.

That is not to say, however, that where a contractor induces a subcontractor to provide goods (but not services, a point we shall take up presently) through false pretenses -- including a calculated false promise to provide later payment -- that the contractor cannot be held liable for larceny of those goods. In this case, for example, if the jury concluded that the defendant had contrived a plan to induce subcontractors to deliver goods, for which the defendant had no intention of paying, and which he converted permanently to his own use (for example, by using them in an ongoing fraudulent scheme to extract progress payments from Soccer City), then the defendant committed larceny.⁹

The rub here is that, with respect to most of the subcontractors, services, not goods, were purveyed. In Massachusetts, consistent with ancient common law principles, the fraudulent inducement of services is not larceny. See Commonwealth v. Rivers, 31 Mass. App. Ct. 669, 671 & n.3 (1991) ("theft of services . . . [is] not . . . considered a criminal offense in the absence of special legislation"). Rather, in order to be convicted for larceny, some tangible res must be converted. This is reflected in G. L. c. 266, § 30, the general larceny statute, which criminalizes the conversion of "the property of another." "Property" is defined in § 30, as amended by St. 1995, c. 272, § 3, as:"money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts . . . a deed . . . any valuable contract in force, a receipt, release or defeasance, a writ . . . a public record . . . a security deposit . . . electronically processed or stored data, either tangible or intangible, data while in...