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22-P-162 Appeals Court

COMMONWEALTH vs. DOMINIQUE M. OLIVER.

No. 22-P-162.

Middlesex. January 5, 2023. - May 15, 2023.

Present: Ditkoff, Singh, & Grant, JJ.

Uttering Forged Instrument. Negotiable Instruments, Forgery.

Forgery. Evidence, Intent. Intent. Practice, Criminal, 

Required finding.

Complaint received and sworn to in the Malden Division of 

the District Court Department on March 6, 2019. 

The case was tried before William G. Farrell, J.

Joshua M. Daniels for the defendant.

Lindsay Russell, Assistant District Attorney, for the 

Commonwealth.

DITKOFF, J. The defendant, Dominique M. Oliver, appeals 

from a conviction, after a District Court jury trial, of 

uttering a false check, in violation of G. L. c. 267, § 5.1 We 

1 The jury acquitted the defendant of larceny by check, 

G. L. c. 266, § 37, a crime that requires proof that the 

defendant knew there were insufficient funds to pay the check. 
2

conclude that the jury reasonably found that the defendant knew 

that the check she cashed was forged, based on evidence that it 

was apparent that the signature on the forged check did not 

match the name of the purported maker, combined with the 

defendant's use of the drawee bank to obtain a large amount of 

cash. Further concluding that the trial judge properly used the 

model jury instructions, we affirm.

1. Background. a. The Commonwealth's case. At 12:45 

P.M. on January 19, 2019, the defendant entered the Malden 

branch of the Salem Five Cents Savings Bank (Salem Five Bank). 

She approached the counter and presented a check for $3,600 to 

the teller. The check was a Salem Five Bank check made out to 

the defendant on the joint account of Dr. Thomas Mahoney and his 

wife, Eileen Mahoney, a retired nurse. The check purported to 

be signed by Eileen.2 Unlike the signatures on many checks, this 

signature was clear and legible, with each letter easily 

See Commonwealth v. Littles, 477 Mass. 382, 384-385 (2017). The 

record does not reflect why the Commonwealth proceeded on this 

plainly inapplicable charge instead of seeking a complaint for 

larceny under G. L. c. 266, § 30 (1). This is an example of a 

failure to consider whether the complaint as sought by the 

police officer properly reflects the crimes supported by the 

facts alleged, a review that ought to be undertaken by a 

prosecutor at arraignment.

2 Because the Mahoneys "share a last name, we refer to them 

by their first names." Commonwealth v. Sanders, 101 Mass. App. 

Ct. 503, 504 n.3 (2022).
3

discernable.3 Eileen's name, however, was misspelled; the 

spelling did not match her printed name on the check.

The defendant endorsed the check with her signature. She

presented her genuine Massachusetts driver's license to the 

teller and "successfully withdr[ew]" the funds. A Salem Five 

Bank complaint manager testified that the process for cashing a 

check involved obtaining identification for the person cashing 

the check and checking to see whether the "customer is on the 

OFAC list."4 As described by the bank manager, the process for 

cashing a check did not include an evaluation of the signature 

on the check.

This check was numbered 9824; the other checks drawn on the 

Mahoneys' account from that time period all were numbered 

between 1551 and 1786. With the sole exception of an electronic 

mortgage payment, no other check from this time period exceeded 

$800.

3 Interestingly, Eileen's signatures on her legitimate 

checks were also clear and legible, though of course properly 

spelled and completely unlike the signature on the check

presented by the defendant. Eileen credited this to her use of 

the Palmer method of penmanship, which, as Eileen testified, 

"[t]hey don't teach . . . anymore." See State v. Gomes, 690 

A.2d 310, 320 n.3 (R.I. 1997).

4 This refers to the United States Treasury Department's 

Office of Foreign Assets Control's "Specially Designated 

Nationals & Blocked Persons List," Cortez v. Trans Union, LLC, 

617 F.3d 688, 696 (3d Cir. 2010).
4

As it happened, the Mahoneys' Social Security and annuity

payments had been electronically deposited on January 16, so 

there were adequate funds to cover the withdrawal. Over the 

course of the next week, the account was depleted through 

legitimate transactions. Perhaps because the Mahoneys had been 

customers for over forty years, the bank kindly honored the 

checks that drew on insufficient funds and notified Eileen by email that her account had been depleted.

Eileen went to the bank, where an employee showed her the 

$3,600 check. The employee also showed her a photograph of the 

defendant’s cashing the check. Eileen reported the check forged 

(signing the report with her neat and legible signature) and 

notified the police. At trial, Eileen testified that she did 

not sign the $3,600 check and did not know any person by the 

defendant's name.

The defendant elicited from Eileen that, at some point in 

2019, the daughter of a visiting aide from the Veterans 

Administration stole a check from her and "was enhancing the 

check." There was no evidence when this occurred in relation to 

January 19, 2019.5

5 The defendant later testified that she did not know anyone 

by the name of this daughter.
5

b. The defendant's case. The defendant testified and 

admitted to cashing the check. She stated that she had received 

the check from Yolanda Morris as payment for four to five months 

of caring for Morris's wheelchair-bound son, who was the victim 

of a shooting. She testified that she did not notice that the 

check was not drawn from Morris's account. She stated that she 

"did not observe the check prior to cashing it" because "it was 

COVID"6 and she "was excited."

2. Sufficiency of the evidence. a. Standard of review.

"When reviewing the denial of a motion for a required finding of 

not guilty, 'we consider the evidence introduced at trial in the 

light most favorable to the Commonwealth, and determine whether 

a rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.'" Commonwealth v.

Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting 

Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018). 

"The inferences that support a conviction 'need only be 

reasonable and possible; [they] need not be necessary or 

inescapable.'" Commonwealth v. Lagotic, 102 Mass. App. Ct. 405, 

407 (2023), quoting Commonwealth v. Ross, 92 Mass. App. Ct. 377, 

378 (2017). "Because the defendant moved for a required finding 

6 Obviously, January 2019 was well before the COVID-19 

pandemic began, even in China. See Desrosiers v. Governor, 486 

Mass. 369, 370 (2020), cert. denied, 142 S. Ct. 83 (2021).
6

of not guilty at the close of the Commonwealth's case, we review 

the sufficiency of only the evidence presented at the time the 

Commonwealth rested after its case-in-chief." Commonwealth v.

Carrillo, 483 Mass. 269, 271-272 (2019).7

b. Uttering. "In order to support a conviction of 

uttering, the Commonwealth must show that the defendant 

'(1) offer[ed] as genuine; (2) an instrument; (3) known to be 

forged; (4) with the intent to defraud.'" Commonwealth v.

Bonilla, 89 Mass. App. Ct. 263, 265 (2016), quoting Commonwealth

v. O'Connell, 438 Mass. 658, 664 n.9 (2003). Accord 

Commonwealth v. Stirlacci, 483 Mass. 775, 789 (2020). There is 

no challenge to the sufficiency of the evidence on the first two 

elements. Rather, the defendant challenges the sufficiency of 

the Commonwealth's evidence that the defendant knew the check 

was forged, an argument that goes to the third and fourth 

elements.8

7 Ordinarily, we would also "consider the state of the 

evidence at the close of all the evidence, to determine whether 

the Commonwealth's position as to proof deteriorated after it 

closed its case." Ross, 92 Mass. App. Ct. at 379, quoting 

Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006). Here, 

the defendant properly makes no claim that the evidence 

deteriorated during the defense case, as the jury were entitled 

to disbelieve the defendant's testimony. See Ross, supra at 

381.

8 Although a defendant could intend to defraud without 

knowing that the check was forged, see, e.g., Bonilla, 89 Mass. 

App. Ct. at 264-265, here the Commonwealth's proof of intent to 
7

"Knowledge is a question of fact, and proof is frequently 

made by inference from the facts and circumstances developed at 

trial." Commonwealth v. Tavares, 87 Mass. App. Ct. 471, 475 

(2015). In the context of knowledge of forgery (as in all 

contexts), "[c]ircumstantial evidence is competent to establish 

guilt beyond a reasonable doubt." Commonwealth v. Murphy, 70 

Mass. App. Ct. 774, 777 (2007), quoting Commonwealth v. Merola, 

405 Mass. 529, 533 (1989).

We do not write on a blank slate. In Commonwealth v. 

Scordino, 102 Mass. App. Ct. , (2023), we concluded that 

"evidence that a defendant in an otherwise unremarkable bank 

transaction who cashed a check from a person who did not know 

the defendant and did not owe the defendant money, alone" is not 

"sufficient to support a finding beyond a reasonable doubt that 

the defendant knew the instrument was forged and acted with an 

intent to defraud." 

Here, the Commonwealth presented more than the mere fact of 

the defendant's cashing a check purportedly made by a person who 

did not know the defendant and did not owe her money. First, 

and most important, the evidence of forgery was apparent from 

the face of the check. Eileen Mahoney's name is misspelled in 

defraud depended on its proving that the defendant knew the 

check was forged. See O'Connell, 438 Mass. at 664.
8

the signature line, and the misspelling is obvious because the 

name is spelled differently than in the printed name on the

check. As mentioned, this is not a case where the misspelling 

is debatable because the signature is sloppy or otherwise 

unreadable. Here, the signature is neat and precise, and every 

letter can be read with ease. Because the forgery was patent on 

the face of the check that the defendant presented, the jury 

could reasonably infer that she knew of the forgery. See

Tavares, 87 Mass. App. Ct. at 475 (sufficient evidence where 

counterfeit bills "were patently fake in appearance"). Accord

State v. Gantt, 504 S.W.2d 295, 298, 300 (Mo. Ct. App. 1973) 

(sufficient evidence where, inter alia, purported maker's first 

name was misspelled); Mooney v. State, 888 S.W.2d 182, 184 (Tex.

Ct. App. 1994) (sufficient evidence where "alteration was 

apparent"); State v. Kilhstrom, 988 P.2d 949, 953 (Utah App.

1999) (sufficient evidence would exist where "the signature does 

not match the name printed on the check").

To be sure, it is possible that a person could fail to 

notice that the signature on a check did not match the name on 

the check, even where the signature is as clear and legible as 

in this case. Indeed, the defendant could argue (even without 

testimony from the defendant, as here) the improbable 

proposition that the defendant cashed the check without ever 

looking at it. The jury, however, were not required to draw 
9

either of those inferences. Rather, "the inferences a jury may 

draw need only be reasonable and possible and need not be 

necessary or inescapable." Commonwealth v. Kapaia, 490 Mass.

787, 791 (2022), quoting Commonwealth v. West, 487 Mass. 794, 

800 (2021). Among those reasonable inferences is that a person 

looks at a check before cashing it, especially where, as here, 

the check was for a large amount.

Second, the evidence at trial was that a check could be 

deposited into a bank account by a mobile deposit or at an 

automated teller machine, but that receiving cash for it 

required going to the bank in person and presenting 

identification. The defendant went to the bank that the check 

was drawn on, presented a driver's license, and "successfully 

withdr[ew]" $3,600 from the account. Unlike in Scordino, 102 

Mass. App. Ct. at , where the defendant went to her own bank 

and cashed a much smaller check, here the jury could reasonably 

infer that the defendant's use of the drawee bank to secure 

immediate possession of a large amount of cash supported the 

inference that she knew that the check was forged. See State v.

Torres, 111 Conn. App. 575, 583-584 (2008) (circumstances of 

withdrawal of cash created inference of knowledge that check was 

forged); Huntley v. State, 4 S.W.3d 813, 815 (Tex. Ct. App.

1999) (en banc) (amount of check contributed to sufficiency as 

it is "unlikely that appellant would have been given such a 
10

large check by a stranger"). The evidence here was more than an 

"unremarkable bank transaction [by a defendant] who cashed a 

check from a person who did not know the defendant and did not 

owe the defendant money," Scordino, supra at , and was 

sufficient to allow a reasonable jury to conclude that the 

defendant knew that the check she cashed was forged.

3. Jury instructions. "Judges have broad discretion in 

framing jury instructions, including determining the appropriate 

degree of elaboration." Commonwealth v. Toolan, 490 Mass. 698, 

708 (2022). "When reviewing jury instructions, we 'evaluate the 

instruction as a whole, looking for the interpretation a 

reasonable juror would place on the judge's words.'" 

Commonwealth v. Fan, 490 Mass. 433, 453 (2022), quoting 

Commonwealth v. Odgren, 483 Mass. 41, 46 (2019). "Due to the 

defendant's failure to object to the jury instructions given at 

trial, our review is limited to determining whether any error in 

the instructions gave rise to a substantial risk of a 

miscarriage of justice." Commonwealth v. Taranovsky, 93 Mass.

App. Ct. 399, 405 (2018).9

9 Unlike with the sufficiency of the evidence, in 

determining whether a substantial risk of a miscarriage of 

justice exists, "[w]e review all of the evidence and the case as 

a whole," not just the Commonwealth's case. Commonwealth v. 

Lapointe, 55 Mass. App. Ct. 799, 807-808 (2002), quoting 

Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 

72 (2005).
11

Here, following Instruction 8.240 of the Criminal Model 

Jury Instructions for Use in the District Court (2009), the 

trial judge instructed the jury that, to prove the third element 

of uttering, the Commonwealth had to prove beyond a reasonable 

doubt "that the Defendant knew [the check] was falsely made, 

forged or altered." This instruction adequately conveyed the 

requirement that the Commonwealth prove that the defendant knew 

that the check was forged. See Commonwealth v. Reddy, 85 Mass.

App. Ct. 104, 112-113 (2014), quoting Commonwealth v. Walker, 

421 Mass. 90, 100 (1995) ("The trial judge did not give the 

general knowledge instruction in the model jury 

instructions. . . . [T]he 'charge, as a whole, adequately 

covered the issue'"). There was no error.

Judgment affirmed.
1

SINGH, J., (concurring). I agree that the defendant's 

conviction for uttering should be affirmed.

In my view, evidence that the victim did not know the 

defendant and had no reason to be paying her money is sufficient 

to create a reasonable inference that the defendant knew the 

check was a forgery. That view, however, is foreclosed by this 

court's holding in Commonwealth v. Scordino, 102 Mass. App. 

Ct. , (2023). There, the court relied on a handful of 

cases that recite that guilty knowledge cannot be inferred from 

the mere passing of a forged instrument.1 However, evidence that 

the victim has no relationship to the defendant is more evidence 

than the mere passing of a forged instrument. Where the account 

1 None of those cases involved the issue presented in 

Scordino. In both Parks v. State, 746 S.W.2d 738, 741 (Tex. 

Crim. App. 1987), as well as in the case it relies on, Albrecht

v. State, 486 S.W.2d 97, 102-103 (Tex. Crim. App. 1972), the 

court held that evidence that the defendant committed other 

offenses was relevant and admissible to prove guilty knowledge 

in the trial of a forgery offense. In United States v. Barnes, 

579 F.2d 46, 47-48 (7th Cir. 1978), the court held that evidence 

that the defendant admitted to having filled out money orders in 

the name of a fictious payee was sufficient to establish his 

guilty knowledge. In Commonwealth v. Horton, 465 Pa. 213, 218 

(1975), the court held that evidence that the defendant passed a 

check from a defunct corporation was insufficient to establish 

that she knew the check was worthless where she was merely the 

payee and not the account holder. Each case cited the 

uncontroversial proposition that guilty knowledge cannot be 

inferred from the mere passing of a forged or worthless 

instrument. Yet none of them supports the proposition that 

evidence that the account holder has no relationship to the 

defendant is insufficient to create a reasonable inference of 

guilty knowledge.
2

holder testifies that she has no relationship with the 

defendant, it is a reasonable inference that the defendant knows 

that the account holder has no reason to be paying the defendant 

and so must know that the check is not genuine. This is the 

prevailing view in jurisdictions that have considered the 

precise issue.2

But for this court's decision in Scordino, I would affirm 

based on the reasonable inference to be drawn between the lack 

of any relationship between the account holder and the 

defendant, without the need for any additional justification.

2 See, e.g., Commonwealth v. Green, 203 A.3d 250, 255 (Pa. 

Super. Ct. 2019) (en banc) (fact that defendant never worked for 

company and had no reason to receive check from it was 

circumstantial evidence that defendant "knew [company] would not 

have his name and address for payroll or other payment purposes, 

and knew that he would not be a payee on a genuine [company]

check for nearly $500.00"); Johnson v. State, 425 S.W.3d 516, 

521-522 (Tex. Ct. App. 2012) (discussing line of cases finding 

that evidence of no relationship between defendant and account 

holder creates inference that defendant knows he has no reason 

to be paid by account holder and so must know check is forgery);

State v. Williams, 712 P.2d 220, 223 (Utah 1985) (where victim 

testified that he did not know defendant or have any reason to 

pay him any money, reasonable inference was that defendant knew

check was forged).