## Facts

- Henry Souza, a commercial fisherman, caught a 386-pound bluefin tuna on October 1, 1996, and sold it to Gulfstream Seafood, Inc., whose owner and president was Steven Moreton.
- Souza chose Gulfstream after being told he could be paid within a week; the transaction paperwork recorded the fish’s weight and the word “consignment.”
- The tuna was sold at auction on October 5, and Souza’s share of the proceeds was $2,915.89.
- Souza repeatedly demanded payment from Gulfstream and Moreton over the following weeks.
- On November 14, 1996, Moreton agreed to send a check; the check was not supported by sufficient funds, and Moreton asked Souza to hold it and try again later.
- Gulfstream later filed for bankruptcy; Souza filed a criminal complaint charging larceny by check and larceny over $250 by embezzlement.

## Issues

1. Whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove beyond a reasonable doubt that Moreton had the intent to steal or embezzle required for larceny over $250 by embezzlement.
2. Whether nonpayment of claimed consignment proceeds, issuance of a check returned for insufficient funds, and a later bankruptcy filing permitted an inference of unlawful conversion with intent to steal.

## Decision

- The Appeals Court reversed the conviction for larceny over $250 by embezzlement.
- The court held that the Commonwealth failed to introduce direct or circumstantial evidence permitting a rational factfinder to find the required criminal intent beyond a reasonable doubt.
- The court ordered the finding of guilt set aside and judgment entered for the defendant on the larceny charge.

## Legal Principles

- Although Massachusetts merges “larceny” into a single statute, embezzlement remains a distinct theory with traditional elements that must be proved.
- Embezzlement requires proof that the defendant unlawfully converted another’s property with intent to steal or fraudulently appropriate it.
- A breach of a commercial obligation or failure to pay a debt, without more, does not establish criminal intent.
- Evidence that a business failed or filed bankruptcy may explain nonpayment and, standing alone, does not support an inference of intent to steal.

## Conclusion

The court treated the dispute as, at most, a commercial nonpayment problem: even assuming a consignment relationship, the Commonwealth’s proof showed only that Souza was not paid and that a check could not be covered, which was insufficient to prove embezzlement’s intent element beyond a reasonable doubt.


Commonwealth v. Moreton, 719 N.E.2d 509 (Mass. App. Ct. 1999)