NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1172
COMMONWEALTH
vs.
SHAYNA BRETAL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the Superior Court, the
defendant was convicted of larceny over $1,200, in violation of
G. L. c. 266, § 30 (1). 1 She now appeals, claiming that there
was insufficient evidence to support the judge's finding of
guilty. We affirm.
Background. Viewing the evidence in the light most
favorable to the Commonwealth, and drawing all reasonable
inferences in the Commonwealth's favor, the judge could have
found the following facts. In November 2020, the defendant was
employed as a receptionist and office manager at a dental
1 The docket shows that a bench trial was scheduled but then cancelled after the defendant pleaded guilty. In contrast, the transcript of the bench trial shows, and the parties at oral argument agreed, that the case was tried and resulted in a guilty finding. The erroneous entries may be corrected on motion of either party in the trial court. office, where she was responsible for, among other things,
collecting and depositing payments from patients. The defendant
was having difficulty paying her car insurance premiums. On or
around November 16, 2020, she asked the owner of the dental
practice for a loan of $4,025 to help with the premiums; the
owner refused.
On November 17, 2020, a patient at the dental office made a
cash payment of $1,500 toward the $3,000 cost of an upcoming
procedure. The patient gave the money to a woman behind the
counter with dark hair. The defendant's hair color changed
during her period of employment but was sometimes a dark color.
There were only three other employees working at the office
during that period -- a dentist (who did not see the payment
being made) and two dental assistants, one with blonde hair and
one with dark hair. All four employees had access to the area
behind the desk, but only the defendant spent significant time
there. Sometime after the patient left the office, the dentist
saw cash in an open drawer directly next to where the defendant
was sitting.
In January 2021, the dental practice's financial records
showed that the patient had made a payment of $1,500 via check
earlier that month, but there was no record showing that the
cash payment made in November was either received or deposited
in the bank. The owner of the practice asked the defendant
2 about collecting the outstanding balance of $1,500 from the
patient. The defendant told the owner that she knew the patient
and that the patient had agreed to a "sloppy payment plan."
When the patient thereafter failed to make the first payment on
what the defendant had told the owner was the expected date, the
defendant told the owner that the patient was unable to come in
because he was being tested for COVID-19.
The patient, however, was unaware of any outstanding
balance until the owner contacted him in February or March 2021;
he had not agreed to any payment plan. Further, he never told
anyone at the practice that he was getting tested for COVID-19.
When the owner confronted the defendant about the missing money
in March, the defendant walked out of her shift and resigned via
text message later that day. Although the defendant later sued
the owner over an unrelated wage dispute, she did not cite that
dispute as her reason for resigning.
Discussion. The defendant contends on appeal that there
was insufficient evidence to support her conviction for larceny.
We review to determine "whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-
319 (1979). "That [a] case . . . [is] 'circumstantial' in some
3 sense of that dubious term does not suggest that the proof [is]
insufficient. . . . A web of convincing proof can be made up of
inferences that are probable, not necessary." Commonwealth v.
Best, 381 Mass. 472, 483 (1980).
"A conviction of larceny under G. L. c. 266, § 30 (1),
requires the Commonwealth to prove beyond a reasonable doubt an
unlawful taking and carrying away of the property of another
with the specific intent to deprive the person of the property
permanently." Commonwealth v. St. Hilaire, 470 Mass. 338, 343
(2015). The defendant argues that there was insufficient
evidence that any money was actually taken, that the defendant
ever possessed the money, or that it was she who took it from
where it should otherwise have been. We are unpersuaded. 2
First, it was reasonable to infer that the cash was taken,
not merely lost due to an accounting error. Testimony from the
patient, as well as bank records confirming that he accessed the
safety deposit box where he kept his cash, showed that he
dropped the cash off at the dental office on November 17.
Testimony from the owner and the dentist showed that the cash
2 At oral argument the defendant asserted for the first time that, because she came into possession of the money lawfully, the evidence at most established embezzlement rather than larceny by stealing. As this issue was not raised either to the trial judge or in the appellate briefs, we decline to consider it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629 (2019).
4 was never recorded as received or deposited at the bank used by
the dental practice. The absence of paper records or expert
testimony from a forensic accountant goes to the weight of the
evidence, but it does not render impermissible the inference
that the money was received at the office and then taken.
Moreover, the defendant's lies about the patient's payment plan
and COVID-19 test support an inference of malfeasance, rather
than an innocent mistake. See Commonwealth v. Porter, 384 Mass.
647, 653 (1981) (defendant's intentionally false and misleading
statements supported inference of consciousness of guilt).
Secondly, the evidence was sufficient to infer that the
defendant both possessed the money and took it from its rightful
place. The dentist saw cash in the open drawer next to the
defendant after the patient left the office. Although the
testimony was somewhat vague, the defendant also fit the
patient's description of the woman who collected his money, and,
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1172
COMMONWEALTH
vs.
SHAYNA BRETAL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the Superior Court, the
defendant was convicted of larceny over $1,200, in violation of
G. L. c. 266, § 30 (1). 1 She now appeals, claiming that there
was insufficient evidence to support the judge's finding of
guilty. We affirm.
Background. Viewing the evidence in the light most
favorable to the Commonwealth, and drawing all reasonable
inferences in the Commonwealth's favor, the judge could have
found the following facts. In November 2020, the defendant was
employed as a receptionist and office manager at a dental
1 The docket shows that a bench trial was scheduled but then cancelled after the defendant pleaded guilty. In contrast, the transcript of the bench trial shows, and the parties at oral argument agreed, that the case was tried and resulted in a guilty finding. The erroneous entries may be corrected on motion of either party in the trial court. office, where she was responsible for, among other things,
collecting and depositing payments from patients. The defendant
was having difficulty paying her car insurance premiums. On or
around November 16, 2020, she asked the owner of the dental
practice for a loan of $4,025 to help with the premiums; the
owner refused.
On November 17, 2020, a patient at the dental office made a
cash payment of $1,500 toward the $3,000 cost of an upcoming
procedure. The patient gave the money to a woman behind the
counter with dark hair. The defendant's hair color changed
during her period of employment but was sometimes a dark color.
There were only three other employees working at the office
during that period -- a dentist (who did not see the payment
being made) and two dental assistants, one with blonde hair and
one with dark hair. All four employees had access to the area
behind the desk, but only the defendant spent significant time
there. Sometime after the patient left the office, the dentist
saw cash in an open drawer directly next to where the defendant
was sitting.
In January 2021, the dental practice's financial records
showed that the patient had made a payment of $1,500 via check
earlier that month, but there was no record showing that the
cash payment made in November was either received or deposited
in the bank. The owner of the practice asked the defendant
2 about collecting the outstanding balance of $1,500 from the
patient. The defendant told the owner that she knew the patient
and that the patient had agreed to a "sloppy payment plan."
When the patient thereafter failed to make the first payment on
what the defendant had told the owner was the expected date, the
defendant told the owner that the patient was unable to come in
because he was being tested for COVID-19.
The patient, however, was unaware of any outstanding
balance until the owner contacted him in February or March 2021;
he had not agreed to any payment plan. Further, he never told
anyone at the practice that he was getting tested for COVID-19.
When the owner confronted the defendant about the missing money
in March, the defendant walked out of her shift and resigned via
text message later that day. Although the defendant later sued
the owner over an unrelated wage dispute, she did not cite that
dispute as her reason for resigning.
Discussion. The defendant contends on appeal that there
was insufficient evidence to support her conviction for larceny.
We review to determine "whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-
319 (1979). "That [a] case . . . [is] 'circumstantial' in some
3 sense of that dubious term does not suggest that the proof [is]
insufficient. . . . A web of convincing proof can be made up of
inferences that are probable, not necessary." Commonwealth v.
Best, 381 Mass. 472, 483 (1980).
"A conviction of larceny under G. L. c. 266, § 30 (1),
requires the Commonwealth to prove beyond a reasonable doubt an
unlawful taking and carrying away of the property of another
with the specific intent to deprive the person of the property
permanently." Commonwealth v. St. Hilaire, 470 Mass. 338, 343
(2015). The defendant argues that there was insufficient
evidence that any money was actually taken, that the defendant
ever possessed the money, or that it was she who took it from
where it should otherwise have been. We are unpersuaded. 2
First, it was reasonable to infer that the cash was taken,
not merely lost due to an accounting error. Testimony from the
patient, as well as bank records confirming that he accessed the
safety deposit box where he kept his cash, showed that he
dropped the cash off at the dental office on November 17.
Testimony from the owner and the dentist showed that the cash
2 At oral argument the defendant asserted for the first time that, because she came into possession of the money lawfully, the evidence at most established embezzlement rather than larceny by stealing. As this issue was not raised either to the trial judge or in the appellate briefs, we decline to consider it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629 (2019).
4 was never recorded as received or deposited at the bank used by
the dental practice. The absence of paper records or expert
testimony from a forensic accountant goes to the weight of the
evidence, but it does not render impermissible the inference
that the money was received at the office and then taken.
Moreover, the defendant's lies about the patient's payment plan
and COVID-19 test support an inference of malfeasance, rather
than an innocent mistake. See Commonwealth v. Porter, 384 Mass.
647, 653 (1981) (defendant's intentionally false and misleading
statements supported inference of consciousness of guilt).
Secondly, the evidence was sufficient to infer that the
defendant both possessed the money and took it from its rightful
place. The dentist saw cash in the open drawer next to the
defendant after the patient left the office. Although the
testimony was somewhat vague, the defendant also fit the
patient's description of the woman who collected his money, and,
unlike the other employee who might have fit that description,
it was the defendant's responsibility to collect such payments.
Thus it was reasonable to infer that the defendant was in
possession of the cash when it went missing. Further, the fact
that the defendant asked for, and was denied, a loan from the
owner the same week as the theft suggests both that she needed
money when the theft occurred and that she had reason to resent
her employer. Finally, as mentioned above, the false excuses
5 offered by the defendant support an inference that she had taken
the money and was attempting to conceal her wrongdoing.
Even if, as the defendant argues, some of these facts taken
alone may not have been sufficient to support her conviction, we
conclude that, when combined, they are enough to find beyond a
reasonable doubt that it was the defendant who took the cash.
See Commonwealth v. Robinson, 482 Mass. 741, 745-746 (2019)
(concluding that there was sufficient evidence of perpetrator's
identity where Commonwealth provided evidence of motive, means,
opportunity, and consciousness of guilt).
Judgment affirmed.
By the Court (Meade, Massing & Sacks, JJ. 3),
Assistant Clerk
Entered: February 2, 2024.
3 The panelists are listed in order of seniority.