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15-P-925 Appeals Court

COMMONWEALTH vs. DAMIEN LONG.

No. 15-P-925.

Plymouth. September 14, 2016. - November 23, 2016.

Present: Green, Wolohojian, & Massing, JJ.

Larceny. False Pretenses. Intent. Evidence, Intent.

Practice, Criminal, Required finding.

Complaint received and sworn to in the Plymouth Division of 

the District Court Department on December 16, 2011. 

The case was tried before James M. Sullivan, J. 

Amy Muscato-Wolter for the defendant.

Jessica Heaton, Assistant District Attorney, for the 

Commonwealth.

MASSING, J. The defendant, Damien Long, prepared an 

estimate to do some home improvement work for a married couple, 

who owned a house in Marshfield. He cashed their deposit check, 

bought some supplies, performed a few days of minimal work that 

was not to the homeowners' satisfaction, and then abandoned the 

job. A week later he slipped a final invoice under the door, 
2

purporting to show that the homeowners owed him money. On those 

facts, he was charged and convicted in District Court, after a 

jury trial, of larceny over $250 by false pretenses.1 To sustain

the conviction, the Commonwealth was required to prove that at 

the time the defendant promised the homeowners he would do the 

work, inducing them to write him a check, he did so with the 

intention of never performing the job. Because we conclude that 

the evidence did not establish that essential element of the 

crime beyond a reasonable doubt, we reverse.

Background. We begin by summarizing the facts presented in 

the Commonwealth's case-in-chief in the light most favorable to 

the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 

677 (1979). Joseph and Maryann Watts,

2 the homeowners, wanted 

new windows, new window sills, a new sliding door, and some 

other minor improvements done on their house in Marshfield.

Joseph made some calls and eventually contacted the defendant. 

On September 23, 2011, the defendant met the Wattses at their 

house to discuss the work they wanted done. They agreed on a 

 

1 The complaint charged the defendant with larceny over $250 

by false pretenses in violation of G. L. c. 266, § 34 and 

§ 30(1).

2 The Wattses have two sons in their twenties and their 

grandson lives with them. Joseph had taken early disability 

retirement after thirty years as a police officer. Nothing in 

the evidence indicates that the Wattses were unsophisticated, 

elderly, or otherwise vulnerable victims.
3

price of about $32,000 for the entire project, and Joseph gave 

the defendant a check for $11,800, dated either September 25 or 

26, 2011, as a down payment. The deposit was for "purchasing 

the windows and getting those in," as well as the "trim and all 

that stuff [the defendant] need[ed] to finish it." The 

defendant cashed the check on September 26, 2011. 

The defendant had requested an estimate for seventeen 

windows at the Home Depot store in Rockland on September 24, 

2011. Home Depot quoted him a price of $4,409.63, but he never 

purchased the windows associated with that quote. He did

purchase various other items including "steps, caulking, trays, 

casings, brushes, drop cloths, [a] claw hammer, . . . a reframing nail gun; . . . adapters, portable work lights; . . . 

various nails; . . . a steel door; [and] sponges." 

On September 26, 2011, the defendant and an assistant

installed some crown moldings in the house and put some plywood 

under a countertop. Joseph was not satisfied with how the 

molding was installed, and Maryann left notes for the defendant 

when he returned to the house the next day, communicating her 

approval or disapproval of his work. The defendant did no more 

work on the house after September 27, 2011, and Joseph was 

unable to reach him by telephone. 

The defendant never repaid the Wattses. However, on 

October 4, 2011, they received from the defendant a final 
4

invoice, labelled "Bid Memo," itemizing his charges, and some 

receipts. Accounting for his and his assistant's hourly wage 

for three days of work, the purchase of windows and supplies, 

the rental of a dumpster, and a ten percent cancellation fee, 

the defendant's bill totaled $13,694.01. Subtracting the 

refunded dumpster rental fee and the original deposit, the 

defendant claimed that the Wattses owed him $1,059.01. Joseph 

was able to return the steel door and some moldings with the 

receipts the defendant left him. 

At the close of the Commonwealth's case, the defendant 

moved for a required finding of not guilty.3 The judge denied 

the motion. 

The defendant, who testified in his own defense, recounted 

that Joseph had hired him for numerous projects, including 

replacing the interior trim and exterior trim, "[t]he island, 

screen door, a few interior doors and a few other projects as 

well." Joseph gave him a deposit for "[a]ll the various 

materials [he] needed" for those projects. The defendant went 

to stores and took pictures of various materials, which he sent

 

3 The prosecutor argued that "the Defendant contracted with 

the [Wattses] to get windows, amongst other things. But windows 

were never had." Referring to the final invoice, the prosecutor 

continued, "It's clear that he wasn't going to get the windows. 

He didn't get the windows. And in fact, he tried billing more 

afterwards with the intent to dupe them because he never 

intended to go in and do the work."
5

via text message to Maryann for her approval. On his first day 

of work the defendant put up pieces of molding in certain rooms 

as Maryann directed and removed planks and supports from the 

deck. 

When he arrived for the second day of work, Maryann had 

left him notes with various instructions. The defendant made a 

trip to Home Depot for more supplies, including windows, some of 

which had to be special ordered from the Home Depot store in 

Quincy,

4 and removed and reframed a fan vent in the house. On 

day three, the defendant installed a storm door in the front of 

the house, removed old moldings, stripped the island and 

installed plywood and moldings around it, and adjusted some 

kitchen cabinets. Maryann appeared happy with the defendant's 

work. However, the next day, after a carpenter friend had 

criticized the defendant's work, the Wattses asked him to leave 

all the materials on site, refund any unspent deposit money, 

provide receipts for everything he purchased, and itemize the 

hours he spent on the project. The defendant made a few 

attempts to drop off the windows he had ordered, but because the 

 

4 The defendant introduced in evidence receipts dated 

September 26, 2011, from the Home Depot stores in Rockland and 

Quincy, as well as receipts dated September 26 and 27, 2011, 

from the Lowe's store in Pembroke. He did not produce receipts 

for the windows, but testified he had given them to Joseph.
6

Wattses were not at home, he returned them. He did not 

reimburse the Wattses for the returned windows. 

The Commonwealth called Maryann as a rebuttal witness. Her

testimony was similar to that of her husband in terms of the 

initial contact with the defendant. She stated that the deposit 

was mainly for the windows and trim around the windows, although 

they had "discussions about other little things" like trim work 

inside the house. Maryann acknowledged having received pictures 

of moldings for her approval via text message from the defendant 

on more than one occasion. 

Over the three days the defendant was on the job, he put up 

some moldings in one room, put plywood under a center island in 

the kitchen, and did some work on the kitchen cabinets. He did 

not move the fan vent or do any work outside the house. The 

slow pace of the work concerned her. On the third day, the 

defendant asked Maryann for an additional $13,000, which she 

refused. She never heard from him again, but his assistant slid 

a manila envelope under her front door on October 4, 2011. The 

defendant had left a metal door and some wood at the house. 

Discussion. We review the denial of a motion for a 

required finding of not guilty to determine "whether, after 

viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt." 
7

Latimore, 378 Mass. at 677, quoting from Jackson v. Virginia, 

443 U.S. 307, 319 (1979). "To make this determination, we look 

only to the evidence presented by the Commonwealth, and 

disregard any contrary evidence presented by the defendant." 

Commonwealth v. Platt, 440 Mass. 396, 400-401 (2003). "[I]t is 

not enough for the appellate court to find that there was some 

record evidence, however slight, to support each essential 

element of the offense; it must find that there was enough

evidence that could have satisfied a rational trier of fact of 

each such element beyond a reasonable doubt." Latimore, 378 

Mass. at 677-678. "[I]nferences drawn [from the evidence need 

not be] necessary inferences. It is enough that from the 

evidence presented a jury could, within reason and without 

speculation, draw them." Commonwealth v. Gonzalez, 47 Mass. 

App. Ct. 255, 257 (1999). Nevertheless, "if, upon all the 

evidence, the question of the guilt of the defendant is left to 

conjecture or surmise . . . a verdict of guilty cannot stand." 

Commonwealth v. Louis Constr. Co., 343 Mass. 600, 606 (1962), 

quoting from Commonwealth v. O'Brien, 305 Mass. 393, 401 (1940).

General Laws c. 266, § 34, as appearing in St. 2010, 

c. 258, § 10, provides, "Whoever, with intent to defraud and by 

a false pretence, induces another to part with property of any 
8

kind . . . shall be guilty of larceny."5 "Prosecution for 

larceny by false pretenses requires proof that (1) a false 

statement of fact was made; (2) the defendant knew or believed 

that the statement was false when he made it; (3) the defendant 

intended that the person to whom he made the false statement 

would rely on it; and (4) the person to whom the false statement 

was made did rely on it and, consequently, parted with 

property." Commonwealth v. Cheromcka, 66 Mass. App. Ct. 771, 

776 (2006), quoting from Commonwealth v. Williams, 63 Mass. App. 

Ct. 615, 620 (2005).6

At issue in this case is the sufficiency of the evidence of 

the defendant's intent to defraud the Wattses, specifically 

element two, that the defendant's representations to the Wattses 

were false when he made them. With respect to that element,

timing is critical. "A defendant . . . cannot be convicted of 

larceny by false pretenses absent proof of an intention to 

deprive at the time of the representation." Cheromcka, supra at

 

5 The general larceny statute, G. L. c. 266, § 30(1), as 

amended by St. 1945, c. 282, § 2, similarly provides, "Whoever 

. . . with intent to defraud obtains by a false pretence . . .

the property of another . . . shall be guilty of larceny."

6 The judge's charge to the jury included those elements, 

with the additional element that the value of the property must 

exceed $250. We review the evidence in light of the theory of 

the crime on which the jurors were instructed. See Commonwealth

v. Mills, 436 Mass. 387, 398-399 (2002). We express no opinion 

whether the facts of this case would support an alternate theory 

of larceny.
9

782. "While deception as to a person's present intention to 

perform a promise may be the basis of a conviction of larceny by 

false pretenses, such deception cannot be inferred from the mere 

nonperformance of the promise." Commonwealth v. True, 16 Mass. 

App. Ct. 709, 711 (1983) (citations omitted). See Cheromcka, 

supra at 782 ("A mere failure to fulfil a promise does not 

constitute a misrepresentation"). Therefore, "we must look to 

see what evidence, other than the defendant's failure to 

perform, was elicited to show that he anticipated that he would 

not perform his promise" (emphasis supplied). True, supra at

712. "We recognize that . . . intent often cannot be proved by 

direct evidence, but instead must be proved by inferences drawn 

from evidence of relevant circumstances." Commonwealth v. 

Oliver, 60 Mass. App. Ct. 770, 776 (2004), quoting from 

Commonwealth v. Jerome, 56 Mass. App. Ct. 726, 732 (2002).

The evidence does not show that the defendant intended not 

to perform any work at the time he entered into the agreement 

with the Wattses. Implicitly conceding this point, the 

Commonwealth narrowed the focus of its proof to the defendant's 

failure to purchase or install windows. That is, the 

Commonwealth contended that when the defendant entered into the 

agreement with the Wattses, although he may have intended to do 

some work for them, he never intended do the window work. In 

that regard, the evidence showed that the defendant gave an 
10

estimate for work that would total about $32,000. He obtained a 

quote from the Rockland Home Depot store to purchase seventeen 

windows for $4,409.63. He then accepted the Wattses' $11,800 

check for "purchasing the windows and getting those in."

However, he never delivered the windows, never did any work

towards installing them, and never repaid the Wattses the quoted 

purchase price. 

While that evidence does show that the Wattses paid for 

windows they never received, in our view it falls short of 

establishing that, from the beginning, the defendant never 

intended to purchase and install the windows. "Where, as here, 

a specific intent is an element of the crime charged, that 

intent must be proved." Commonwealth v. Carter, 306 Mass. 141, 

149 (1940). In many cases, the defendant's intent can be 

inferred from his acts. But here, the defendant's acts merely 

show nonperformance of a contract, which is not a crime. Where 

"the acts performed by [the defendant], in and of themselves, 

are as susceptible of the conclusion that they were performed 

for a lawful purpose as for an unlawful one, the record must be 

searched, if a finding of guilt is to be upheld, for some 

evidence of the defendant's intent to commit the crime charged." 

Id. at 149-150. See Louis Constr. Co., 343 Mass. at 606; 

Commonwealth v. McCauliff, 461 Mass. 635, 642 (2012). We 

conclude that "the sparse evidence introduced at trial . . . was 
11

too meager to justify the inference that the defendant harbored 

the requisite intent at the relevant time." Commonwealth v. 

Oliver, 443 Mass. 1005, 1005 (2005).

Conclusion. Not every private fraud warrants criminal 

prosecution. See Commonwealth v. Drew, 36 Pick. 179, 185 

(1837). Absent proof of a present intent to defraud when the 

defendant first agreed to perform home improvement work for the 

Wattses, his conviction for larceny by false pretenses cannot 

stand. "We think this case . . . is one where the buyer[s'] 

remedy is civil not criminal." True, 16 Mass. App. Ct. at 713.7

Judgment reversed.

Verdict set aside.

Judgment for defendant.

 

7 Because we conclude that the defendant was entitled to a 

required finding of not guilty, we do not reach the other issues 

he raises on appeal.