Commonwealth v. Mitchell
| Decision Date | 27 February 2020 |
| Docket Number | 19-P-259 |
| Citation | 97 Mass.App.Ct. 1104,140 N.E.3d 956 (Table) |
| Parties | COMMONWEALTH v. Joseph MITCHELL. |
| Court | Appeals Court of Massachusetts |
A District Court jury convicted the defendant of two counts of larceny over $250 by a single scheme in violation of G. L. c. 266, § 30 (1). The convictions were based on evidence that the defendant, a server at two restaurants, stole cash receipts from each restaurant over the course of three years. On appeal, the defendant claims that the evidence supporting his convictions was insufficient, that the judge abused his discretion in admitting certain evidence against him, and that a defense witness was improperly excluded. We affirm.
1. Sufficiency of the evidence. The defendant first argues that the evidence was insufficient to prove beyond a reasonable doubt that he intentionally took and carried away cash receipts, which belonged to the restaurants. "In determining whether the evidence was sufficient to survive a motion for a required finding, we [ask] whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Arce, 467 Mass. 329, 333 (2014), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To prove larceny, the Commonwealth was required to prove beyond a reasonable doubt that the defendant unlawfully took and carried away the restaurants' property with the specific intent to deprive the restaurants of the property permanently. See Commonwealth v. Mills, 436 Mass. 387, 394 (2002). Larceny may be proved by circumstantial evidence and the reasonable inferences drawn from that evidence. See Commonwealth v. Caparella, 70 Mass. App. Ct. 506, 510 (2007).
Here, the jury heard evidence that the servers at the restaurants were required to deliver all cash receipts (except tips) to the restaurant at the end of each shift. At that time, each server completed and signed a "cash out sheet," which recorded all of the server's customer transactions. If a customer used a restaurant gift card as a form of payment, the gift card number and the amount of the gift card were recorded on the server's cash out sheet. The computerized point of sale system generated a printout called a summary report, which showed the amount of cash the server owed the restaurant for that shift. The server then delivered the cash to the restaurant manager before leaving the restaurant.
An examination of the defendant's cash out sheets, the summary reports, the restaurant receipts, and the gift card records, all of which were admitted in evidence, revealed a pattern of transactions in which the defendant reported that he had received a gift card from a customer as payment when, in fact, (1) the gift card recorded had never been sold by the restaurant, (2) the gift card had already been redeemed for its full face value, or (3) the gift card was used in an amount that exceeded its face value. For example, the records show that the defendant reported payment by gift card number 3464 twelve different times. After gift card number 3464 was redeemed for its face value of $150, the defendant reported receiving the same gift card as payment eleven additional times for a total of $890. We need not describe in detail the evidence supporting each fraudulent gift card transaction reported by the defendant. Suffice it to say that based on the jury's verdicts and the evidence submitted at a restitution hearing, the judge ordered that the defendant pay restitution in the amount of $3,589.76.
This pattern of bogus gift card transactions reported by the defendant gave rise to a reasonable inference that he fraudulently reported gift card transactions in a scheme designed to balance the restaurants' records and to conceal the fact that he was taking cash received from restaurant customers for himself. The documentary evidence, albeit circumstantial, was sufficient to prove beyond a reasonable doubt that the defendant intentionally took and carried away cash receipts, which were the property of the restaurants.2
2. Summary spreadsheets. The Commonwealth filed a motion in limine seeking to admit summary spreadsheets for each of the eleven binders of records related to the defendant's transactions. The binders, which were admitted in evidence, included cash out sheets, summary reports, guest checks, gift cards, and other payment information. A judge other than the trial judge allowed the motion in limine over the defendant's objection, reasoning that the spreadsheets were admissible as an "index" for each binder of exhibits.3 The defendant claims that the trial judge abused his discretion in admitting the spreadsheets because many of the entries in the spreadsheets were inaccurate.4
"Summary charts of voluminous evidence are permissible if they are accurate and fair, although ‘care must be taken to insure that summaries accurately reflect the contents of the underlying documents and do not function as pedagogical devices that unfairly emphasize part of the proponent's proof’ " (citations omitted). Commonwealth v. Mimless, 53 Mass. App. Ct. 534, 538 (2002). Here, it is undisputed that the underlying records were voluminous and that a summary or chart would assist the jury. See Mass. G. Evid. § 1006 (2019). The defendant claims that the spreadsheets should not have been admitted because the summaries contained ninety-seven errors. The Commonwealth concedes that there were mistakes in the summary spreadsheets, but disagrees regarding the number and the significance of those mistakes.5
We need not resolve the dispute regarding the number of mistakes in the summaries because we discern no prejudice from their admission. First, the jury had an opportunity to examine all of the underlying exhibits. Second, many of the omissions in the summary sheets inured to the benefit of the defendant. Third, the...
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