Commonwealth v. Giavazzi

• Decision Date: 29 January 2004
• Docket Number: No. 02-P-806.,02-P-806.
• Parties: COMMONWEALTH v. GIANFRANCO GIAVAZZI.
• Court: Appeals Court of Massachusetts

60 Mass. App. Ct. 374

802 NE 2d 589

COMMONWEALTH v. GIANFRANCO GIAVAZZI.

No. 02-P-806.

Appeals Court of Massachusetts, Suffolk.

May 5, 2003.

January 29, 2004.

Present: LENK, SMITH, & COWIN, JJ.

Angela G. Lehman for the defendant.

Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.

COWIN, J.

The defendant was convicted by a jury of identity fraud pursuant to G. L. c. 266, § 37E(b), a relatively new offense inserted by St. 1998, c. 397, § 1, effective March 3, 1999.¹ On appeal, he claims that (1) the trial judge erred in not allowing his motion for a required finding of not guilty; (2) the prosecutor's closing argument infringed on his constitutional right to remain silent and misstated the law on identity fraud; and (3) the Commonwealth's decision to charge him with identity fraud, rather than with possession of a false driver's license under G. L. c. 90, § 24B, created jury confusion, resulting in an unfair verdict. We conclude that the Commonwealth failed to introduce sufficient evidence on at least one of the elements required for conviction under G. L. c. 266, § 37E(b). It is therefore unnecessary to address the defendant's remaining arguments.

1. Material facts. The jury could permissibly have found the following. On August 7, 2000, the defendant presented two checks for payment at a branch of Fleet Bank. The checks were payable to Mario Jaramillo and were payroll checks drawn on an account maintained by Printed Circuit Corporation, Jaramillo's employer.² The checks were endorsed "Mario Jaramillo" without any limitation. The defendant presented to the teller three forms of photographic identification: (1) a United Parcel Service employee card in the name of Jaramillo, which the bank did not accept as valid identification; (2) a resident alien identification card with Jaramillo's name but the defendant's picture; and (3) a New Jersey driver's license, again with Jaramillo's name but the defendant's photograph. Convinced that at least the resident alien identification card and the driver's license had been altered, bank personnel notified the police and these charges ensued.

On cross-examination, the defendant elicited from two Commonwealth witnesses certain testimony of a partially exculpatory nature. Barbara Minkwitz, a senior investigator of the bank's security division, testified without objection that she had learned through a contact at Printed Circuit Corporation that Jaramillo had given the checks to the defendant for cashing. Michelle O'Donnell, director of human resources at Printed Circuit Corporation, was permitted to testify that Jaramillo told her that he had endorsed the checks and given them to the defendant so that the defendant could cash the checks for him.³ The defendant did not testify, and offered no other evidence.

2. Discussion. General Laws c. 266, § 37E (b), provides: "Whoever, with intent to defraud, poses as another person without the express authorization of that person and uses such person's personal identifying information to obtain or to attempt to obtain money, credit, goods, services, anything of value, any identification card or other evidence of such person's identity, or to harass another shall be guilty of identity fraud and shall be punished . . . ." Thus, a conviction requires that the 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 value⁴; and (4) did so with the intent to defraud. In reviewing the judge's denial of the defendant's motion for a required finding, "we determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged." Commonwealth v. Campbell, 378 Mass. 680, 686 (1979). There must be adequate evidentiary support for each essential element of the offense. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

There is no question that, at the time he presented the checks for payment, the defendant posed as Jaramillo. The jury could permissibly find that he altered both the alien identification card and the New Jersey driver's license, and safely conclude therefrom that he attempted to convince bank representatives that he was in fact the payee of the checks. The jury were also warranted in finding that the defendant posed as Jaramillo in order to obtain something of value, namely, the proceeds of the checks. We need not address the troublesome question whether the Commonwealth proved beyond a reasonable doubt that the defendant acted with an intent to defraud,⁵ because we conclude in any event that the Commonwealth has not established that the defendant impersonated Jaramillo "without the express authorization" of the latter.

Absent...