MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of one count of larceny over $250 by a single scheme in violation of G. L. c. 266, § 30 (1). On appeal, the defendant claims that the evidence supporting his conviction was insufficient and that the judge abused his discretion in permitting the prosecutions witness to testify multiple times regarding the defendants movements on surveillance video, in effect offering an opinion of the defendants guilt, resulting in prejudicial error. We affirm.
1. Sufficiency of the evidence. We review a claim of insufficient evidence to determine whether “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, 319 (1979). Additionally, inferences drawn from the evidence and that support the conviction “need only be reasonable and possible[, not] necessary or inescapable.” Commonwealth v. Morgan, 449 Mass. 343, 349 (2007), quoting Commonwealth v. Merola, 405 Mass. 529, 533 (1989). To prove larceny, the Commonwealth was required to prove beyond a reasonable doubt that the defendant unlawfully took and carried away Walmarts property with the specific intent to deprive the store of the property permanently. See Commonwealth v. Mills, 436 Mass. 387, 394 (2002). The Commonwealth also had to prove that the value of the property exceeded $250. 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).
The defendant, who was a support manager at a Walmart store, first argues that the evidence, in the light most favorable to the Commonwealth, was not sufficient to prove beyond a reasonable doubt that he was the cause of the shortages from the registers. The defendant also argues that the Commonwealth failed to sufficiently prove that the value of the shortage exceeded the felony amount. We disagree.
Here, in the light most favorable to the Commonwealth, the evidence established that on thirteen days between August 4, 2017, and October 19, 2017, the two cash registers at issue were $90 to $350 short, with the majority of the shortages between $100 and $200. Shortages of this magnitude were atypical. Ron Kapastran, a Walmart loss prevention officer, investigated. On September 28, 2017, Kapastran reviewed surveillance video, which the jury also viewed, showing the defendant take a pair of ten dollar reading glasses from their package, place the empty package on a cart, and walk off with the glasses. This caused Kapastran to investigate the defendant further.
Print outs for each of the dates in question for the “cash recycler,” the machine the defendant and other authorized Walmart employees can access to dispense cash for register tills, showed that the defendant had dispensed cash from the cash recycler on each of those days and was “the common denominator” in the shortages. Video of the defendant on October 19, 2017, shows the defendants hand go into the chute of the cash recycler, which is where cash is dispensed, and go immediately into the defendants pocket. Video from each of the other days showed the defendant using the cash recycler and making subtle hand movements towards his vest or pants pocket. After the defendant was fired, the till shortages stopped. A second Walmart employee testified to a statement by the defendant that showed consciousness of guilt. Specifically, when another stores manager arrived, the defendant said that the manager, “might be [here]” for the defendant. Commonwealth v. Carapellucci, 429 Mass. 579, 583 (1999) (statements that are a conscious admission of guilt are admissible).
Taken together, the evidence was sufficient to prove beyond a reasonable doubt that the defendant intentionally took cash that was the property of Walmart from the cash recyclers over the course of August to October 2017 that exceeded the felony threshold of $250. Morgan, 449 Mass. at 349. The fact that defense counsels skillful cross examination elicited evidence which, if credited by the jury, might have led to a contrary conclusion, does not detract from the sufficiency of the Commonwealths evidence. Latimore, 378 Mass. at 676-677.
2. Witness testimony. The defendant argues that the judge abused his discretion by permitting Kapastran to testify for twelve of the thirteen videos about the defendants hand movements, particularly where the defendants body was positioned between the camera and his right hand. The defendant contends this amounted to opinion testimony that usurped the jurys role and resulted in prejudicial error. We disagree.
Opinion testimony may “touch” on an ultimate issue in a case, if couched in appropriate language, but the witness cannot directly speak to, or express a point of view about, the issue of the defendants guilt or innocence. See Commonwealth v. Woods, 419 Mass. 366, 374-375 (1995). The key is whether the testimony in question is presented in an educational, explanatory fashion intended to aid the jury in understanding the evidence, or in conclusory form. Commonwealth v. Tanner, 45 Mass. App. Ct 576, 581 (1998). Here, Kapastrans explanation of the videos as they were being played to the jury oriented the jurors to what they were seeing as the defendant interfaced with the cash recycler. His testimony directed the jurys attention toward the defendants arm movements when he was using the cash recycler. The witness did not opine about the import of the movements or the defendants guilt or innocence. The jury were free to draw their own conclusion about the significance of the defendants subtle movements. There was no error.
Judgment affirmed.