Commonwealth v. Shayna Bretal.

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.

6