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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, preMiranda 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.