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Appeals court hears dispute over whether contractor’s unpaid work supports larceny-by-stealing conviction
Summary
In Commonwealth v. Allen, defense argued a conviction for larceny by stealing was unsupported because the defendant accepted checks and performed weeks of work; the Commonwealth said the record supports an inference of intent to permanently deprive across a single scheme of transactions.
The panel heard argument in Commonwealth v. Allen (24p359), a criminal appeal challenging the sufficiency of the evidence for a larceny‑by‑stealing conviction. Defense counsel Esther Horwich argued the evidence showed the defendant, Kelly Allen, received checks in connection with agreed work and performed substantial work for weeks afterward. She told the court larceny by stealing requires a trespassory or wrongful taking at the time of the taking and that the record lacked evidence of criminal intent coincident with each transfer of a check.
Horwich said the jury was permitted to convict on a single‑scheme theory without evidence that the defendant had a felonious intent at the time each check was delivered. She emphasized that much work was completed — cabinets, bathrooms, an island and appliances installed — and that the defendant even left tools at the site, arguing those facts undercut an inference of intent to steal at the moment of the transfers.
Alexander Jones, for the Commonwealth, replied that the evidence permitted a rational jury to infer a single scheme and an intent to permanently deprive the owner, citing Commonwealth v. Rubin and other analogues where consensual transfers gave rise to larceny convictions when subsequent conduct demonstrated intent. Jones described testimony that work remained incomplete, that the defendant represented to the victim at Home Depot that he owed her money and then failed to pay, and that the victim attempted civil process before filing a criminal complaint months later.
The panel questioned how model instructions and precedents apply when intent is proved after the initial transfer and whether the factual record supported a conviction only on a larceny‑by‑stealing theory rather than false pretenses. Counsel also debated whether a prosecutor’s remark in closing improperly commented on the defendant’s failure to testify; the trial judge told the jury he had not perceived an impermissible comment and gave a full instruction on defendant’s rights.
Argument was submitted to the court.
