After trial by jury, the defendant, Patricia Cheromcka, was convicted of two counts of larceny over $250 and one count of larceny under $250. G. L. c. 266, § 30. She was acquitted of conspiracy to commit larceny in violation of G. L. c. 274, § 7. The charges stemmed from Cheromcka’s alleged misuse of school funds in the period between April 1, 1996, and May 31, 2000, when she was the business manager and director of transportation for the Southeastern Regional Vocational-Technical School District (district). As business manager, Cheromcka was responsible for the day-to-day operations of the district’s business office; her duties included, among other things, obtaining supplies and equipment, approving purchase orders and bills, and maintaining a petty cash fund. In her capacity as director of transportation, she supervised the district bus drivers and their direct supervisor, Barbara Ataman.
The grand jury returned three larceny indictments. As reflected in the bill of particulars, the first alleged that Cheromcka committed larceny by falsifying bus drivers’ time sheets to reimburse the drivers for running her personal errands. The second indictment alleged that she stole cash from the sale of soda at the school bus depot. The third indictment was in three parts alleging that she (a) used her school district credit card
On appeal, Cheromcka claims error in two respects. First, she maintains that the evidence was insufficient to support guilty findings on the three charges of larceny. Second, she contends that certain opinion testimony was admitted in error and created a substantial risk of a miscarriage of justice.
I. Sufficiency of the evidence. General Laws c. 266, § 30, inserted by St. 1945, c. 282, § 2, provides, in pertinent part: “Whoever steals, or with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another as defined in this section, whether such property is or is not in his possession at the time of such conversion or secreting, shall be guilty of larceny . . . .” Section 30 merged into one crime, larceny, what had formerly been three separate crimes: larceny by stealing, embezzlement, and larceny by false pretenses. Commonwealth v. Mills,
The first and third indictments were submitted to the jury on a theory of false pretenses, while the second went on a theory of larceny by stealing. Although claiming that the evidence was insufficient to support any of the indictments, Cheromcka takes particular aim at the first and third indictments for having gone to the jury on the wrong theory of larceny. The thrust of the Commonwealth’s case on these indictments, she claims, is that Cheromcka was legally responsible for district funds which she misappropriated for her own use. This is classic embezzlement, but embezzlement was not the theory on which the first and third indictments went to the jury. They went instead on false pretenses, as to which the evidence, she argues, was simply insufficient to sustain the convictions. Commonwealth v. Mills, supra at 397-399.
As a threshold matter, we dispose of Cheromcka’s argument that, because the Commonwealth’s theory before and during
Indictment one. Larceny by false pretenses: falsifying bus drivers’ time sheets. “(Pjrosecution for larceny by false pretenses requires proof that (1) a false statement of fact was made; (2) the defendant knew or believed that the statement was false when he made it; (3) the defendant intended that the person to whom he made the false statement would rely on it; and (4) the person to whom the false statement was made did rely on it and, consequently, parted with property.” Commonwealth v. Williams,
The district had a fleet of buses used not only to pick up and deliver children, but also for field trips and sporting events, runs to the bank, and other school-related business; for most trips drivers were paid an automatic minimum.
Cheromcka’s first two contentions need not detain us. The addition of extra hours on the time sheets constituted “a bill for labor [which] may be found to be an implied representation that the charges are correct,” Commonwealth v. Louis Constr. Co.,
The matter is more nuanced as to Cheromcka’s third contention, i.e., that her conviction cannot stand because she did not obtain “property” within the meaning of the common law or G. L. c. 266, § 30.
Ordinarily, of course, the very property with which the victim has been induced to part is what ends up in the hands of the swindler. See, e.g., Commonwealth v. Mills, supra at 397; Commonwealth v. Nadal-Ginard,
Cheromcka relies on Commonwealth v. Rivers,
Indictment three (a). Larceny by false pretenses: credit card use. The purchase of supplies and materials for the district was subject to a multistep approval process
Cheromcka was authorized to use two district credit cards, one issued by American Express and another by MasterCard; Cheromcka testified that both were issued to the Southeastern Regional School District, but it is unclear whether both names, the district’s and Cheromcka’s, were on the cards.
The Commonwealth contends that, by signing the credit card slips, Cheromcka falsely represented to the district that the charges were for legitimate school expenditures. This is unpersuasive. Cheromcka’s signature only represents the cardholder’s intention to repay the issuer.
The Commonwealth also asserts that use of the credit cards for personal purchases is outside the scope of authority granted Cheromcka by the district. There is nothing in the record,
While neither Cheromcka’s signature nor her use of district credit cards to make personal purchases establishes the misrepresentation necessary to prove larceny by false pretenses, the evidence is otherwise as to her approval of the credit card bills. A false statement of fact “may be made by implication as well as by verbal declaration.” Commonwealth v. Louis Constr. Co.,
Given this and Cheromcka’s longstanding involvement with and knowledge of the approval process, there was sufficient evidence to establish that Cheromcka had knowingly made a false statement of fact intending that the school district would rely upon it. See Commonwealth v. Iannello,
It is evident from the district’s payment of the credit card bills that it relied on Cheromcka’s misrepresentation that the
Indictment three (b). Larceny by false pretenses: misappropriation of travel money. Cheromcka was one of several district employees and school committee members who attended a conference in Florida in February, 1998. The superintendent at that time advanced all the district’s other attendees $400 for small cash expenditures; he advanced Cheromcka an additional $1,000. She testified that she took a larger advance because she was responsible for paying some of the expenses of others on the trip; there were, however, no receipts specifying what expenses accounted for the $1,400 Cheromcka received. The Commonwealth claims that Cheromcka misappropriated the money for her personal use.
A defendant who acquires the property of another by virtue of a promise, and then changes her mind and converts that property to her own use, cannot be convicted of larceny by false pretenses absent proof of an intention to deprive at the time of the representation. See Commonwealth v. True,
Indictment three (c). Larceny by false pretenses: petty cash fund. As business manager, Cheromcka was in charge of the
In February, 1999, Hager reviewed the petty cash fund file and found vouchers, many in excess of $1,000, for the monthly reimbursements; no receipts, however, were attached. Although Cheromcka then agreed to submit the relevant receipts, when Hager checked about two weeks later he found some vouchers without receipts, and six of the original vouchers missing. Cheromcka represented that she had put all her receipts in the file and did not know the whereabouts of the missing vouchers. A subsequently generated computer printout of the total petty cash expenditures indicated that in fiscal year 1997,
Cheromcka contends that the vouchers represent promissory statements that the money to be received would be used for district purposes and as such are not misrepresentations. See Commonwealth v. True, supra at 711. The flaw in her character
There was evidence before the jury that (1) the vouchers that Cheromcka prepared and submitted with the warrant were for the purpose of replenishing the fund which had been depleted in order to reimburse for school-related expenditures already made; (2) checks were made out to the petty cash fund in amounts corresponding to the vouchers; (3) several receipts and six vouchers were missing
Indictment two. Larceny by stealing: bus depot soda money.
In late 1999, Gramazio took over as supervisor of transportation, regularly collected the soda money herself, and delivered it to Cathy Spurr, the accounts receivable clerk for the school from 1988 to 2000. At a February, 2000, school committee meeting, Cheromcka explained that she had collected the soda money and turned it over to Spurr or Gramazio; Spurr testified that she never received the cash during Cheromcka’s tenure as director of transportation, first receiving it when Gramazio took over that portion of Cheromcka’s duties in late 1999.
Cheromcka argues that there was insufficient evidence to convict her of larceny by stealing the bus depot soda money. To constitute larceny by stealing, there must be evidence of an unlawful stealing of the personal property of another with the intent to deprive that person permanently. Commonwealth v. Christian,
II. Admission of opinion testimony. Karen Roberts, the certified public accountant and certified fraud examiner retained by
Cheromcka’s first contention fails for the reason, if no other, that Roberts testified as to her extensive credentials and substantial experience in auditing school districts and was impliedly determined by the judge to be qualified to testify as an expert witness as to matters within her area of expertise. See Commonwealth v. Boyd,
In challenging Roberts’s testimony as having exceeded permissible bounds, Cheromcka maintains that the testimony (to the effect that it was “unusual” for a petty cash fund to contain a large amount of money, and for an employee to contribute her own funds for two years) was impermissible opinion concerning the ultimate issue of Cheromcka’s guilt. An expert may testify as to matters not within the jury’s common knowledge or common experience if such testimony will “assist the trier of fact in determining a fact in issue or in understanding the evidence.”
Cheromcka also attacks as unfairly prejudicial Roberts’s analysis of Cheromcka’s deposits to her personal bank account, claiming that Roberts’s determinations as to whether deposits were from “known” or “unknown” sources constituted impermissible opinions. The jury had before them evidence that receipts documenting expenditures from the petty cash fund totaled approximately $69,000; they also had testimony of cash deposits into Cheromcka’s personal account totaling roughly $55,000. Roberts testified as to how she had accounted for all the known deposits and resolved all doubtful cases in Cheromcka’s favor. The analysis of bank deposits is normally outside the common experience of jurors; Roberts’s testimony served to explain the origin of the amount in Cheromcka’s account. See id. at 581. The jury were free to make what they would of the purported correlation between the amount missing from the petty cash fund and the money not otherwise accounted for in Cheromcka’s bank account. Records of the petty cash fund account and Cheromcka’s bank account were in evidence for the jury to examine; the jury could give Roberts’s opinions whatever weight they deemed appropriate.
As to Cheromcka’s contention that the judge failed to give proper jury instructions on how to evaluate expert testimony, where Cheromcka did not request such an instruction, its absence did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, supra at 645. The purpose of instructions on expert testimony is to remind the jury that they are the sole judges of credibility; a standard instruction to
Judgments affirmed.
Notes
By merging the previously separate crimes of larceny into one offense, the Legislature “intended to do away with the possibility of a criminal indicted for one of the three crimes mentioned escaping punishment by reason of its being afterwards found that his crime was technically one of the other two mentioned. . . . The only way in which this reformatory intent can be effectuated is to allow the jury, upon the material facts which are the ground of a charge of larceny, to consider whether these facts show a taking of money or other property, by trespass from the possession of its owner, a fraudulent conversion of it while properly in the possession of the wrongdoer, or an obtaining of it by criminal false pretenses, — in either case, of course, accompanied by the necessary criminal intent, — and in either of these cases to convict of the larceny. To require the Commonwealth to elect [a specific theory] in such a case would be to continue to afford an opportunity to frustrate the ends of justice . . . .” Commonwealth v. King,
Commonwealth v. Mills, supra, and Commonwealth v. Nadal-Ginard, supra, make clear that the Commonwealth need not articulate any particular theory of larceny during trial, as long as there is evidence sufficient to allow a jury to convict on the elements upon which they are instructed. In Mills, the judge’s denial of a required finding of not guilty was upheld because a rational trier of fact could have found sufficient evidence to convict on larceny by false pretenses. Commonwealth v. Mills, supra at 397. The defendant’s convictions nevertheless could not stand because the jury had been instructed only on larceny by stealing, as to which the evidence was insufficient. Id. at 399. In Nadal-Ginard, the defendant claimed that the jury were improperly allowed to consider larceny by false pretenses, with which he had not been expressly charged. Commonwealth v. Nadal-Ginard, supra at 4. Since the jury had been instructed on both embezzlement and false pretenses, the conviction could stand since it was supportable “by evidence that the defendant’s theft was committed in any manner condemned by the law.” Id. at 6.
Cheromcka relies on Dunn v. United States,
For example, a weekend sports event was automatically billed as six hours, while a weekday sports event was billed as four hours; regular bus drivers automatically received two hours for morning pickup and afternoon delivery. There was conflicting testimony whether other trips, such as health service runs, satellite runs, and late runs, had a guaranteed minimum or were paid by the hour.
The errands included, among other things, depositing money in Cherom
Each driver filled in her own time sheet listing the hours, actual or automatic minimum, for which she was to be paid. If a driver’s entry needed to be corrected, that was done in the business office. Each time sheet was signed by the driver and the supervisor, in this case Ataman, and finally initialed by Cheromcka.
Two of the drivers, Joy Berube and Anna Fay Cavallero, brought to Cheromcka’s attention the additional hours on their time sheets; she told them not to worry about it.
General Laws c. 266, § 30, as amended through St. 1995, c. 272, § 3, defines “property” as including “money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts for or concerning money or goods due or to become due or to be delivered, a deed or writing containing a conveyance of land, any valuable contract in force, a receipt, release or defeasance, a writ, process, certificate of title or duplicate certificate issued under chapter one hundred and eighty-five, a public record, anything which is of the realty or is annexed thereto, a security deposit received pursuant to section fifteen B of chapter one hundred and eighty-six, electronically processed or stored data, either tangible or
We note that on the evidence before the jury, the bus drivers cannot be considered coconspirators, as there was no evidence that they possessed the requisite intent to defraud the district or conspire in any way with Cheromcka to do so; to the contrary, at least two drivers brought to Cheromcka’s attention their concern that they were being overpaid. See note 7, supra.
The requester would fill out a purchase order detailing the materials, the amount, and the purchase price; a supervisor, the principal, the business manager, and the superintendent were all required to approve the order before it was sent to the vendor. After the requested materials were received by the school, the bill required approval by the business manager before it became part of a “warrant,” which was submitted to the school committee at its monthly or bimonthly meetings. Once the warrant was approved by the committee, the accounts payable clerk for the district would issue checks to the vendors whose bills had been approved.
There was testimony that the card issued by MasterCard had the district’s name on it while the one issued by American Express was in Cheromcka’s name. The record is silent whether Cheromcka’s name was also on the card from MasterCard, or the district’s name also on the American Express card.
For example, one purchase was from a housewares store and another from a liquor store.
Cheromcka had a second home in New Hampshire. She testified that she often bought various school supplies in New Hampshire to avoid the time-consuming process of proving the district’s tax-exempt status in Massachusetts stores; she explained that the liquor was used for the school’s culinary program.
The testimony does not indicate if Cheromcka used the American Express or the MasterCard credit card.
A “cardholder” is defined in G. L. c. 266, § 37A, inserted by St. 1969, c. 832, as “the person named on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer.” The cards here were issued for the benefit of the district, the (¿strict paid the bills, and Cheromcka testified that both cards were issued to the district. We therefore conclude that the district was the cardholder, regardless of the lack of evidence whether the district’s name was on the American Express card.
The school’s fiscal year ran from July to June. Fiscal year 1997 encompassed the period from July 1, 1996, to June 30, 1997.
Hager’s investigation into Cheromcka’s possible misuse of school funds began in December, 1998; he started reviewing the petty cash fund file in February, 1999. Fiscal year 1999 ran from July 1, 1998, to June 30, 1999.
The vouchers in evidence, some of which are typed and some of which are handwritten, direct that payment be made to “Petty Cash — District.” Amounts requested between July, 1996, through December, 1998, ranged from $345.27 to $1,864.85. One voucher described payment for “Misc. expenses for shops and offices,” while all the others were endorsed “Supplies — All Shops.” The plain language of the vouchers indicates that the money requested was used for school-related purposes. While the vouchers are not signed or initialed by Cheromcka, she does not contest the evidence that she was responsible for filling them out and submitting them with the warrants.
In contrast, the jury had before them vouchers from the superintendent’s petty cash fund, all of which were accompanied by receipts.
The special verdict slip for indictment three indicated that the jury found Cheromcka guilty on all three charges. Although we conclude that, as matter of law, there was insufficient evidence to convict her of larceny by false pretenses regarding the travel money, Cheromcka conceded that the conviction on indictment three would stand should there be sufficient evidence as to any
The judge also instructed the jury, toward the end of Roberts’s testimony, that they were to disregard any of her testimony that they might construe as an opinion as to Cheromcka’s guilt or innocence.