Civil Breach of Contract or Criminal Act? Appeals Court Overturns Larceny Conviction in Commonwealth v. Kelly W. Allen (2025)
In a decision that speaks directly to the blurry line between breach of contract and criminal conduct, the Massachusetts Appeals Court reversed the conviction of Kelly W. Allen for larceny over $250 by a single scheme. The court’s ruling in Commonwealth v. Allen, 24-P-359 (June 6, 2025), is a victory not only for the defendant but also for due process in Massachusetts criminal law.
At our Boston criminal defense law firm, we regularly counsel clients accused of white-collar crimes, contractor fraud, and larceny-related charges. The Allen case highlights how courts distinguish between dishonest business practices and criminal theft—and underscores why every defendant needs experienced legal counsel to ensure that a civil dispute doesn’t become a criminal conviction.
Case Summary: What Happened in Commonwealth v. Allen?
Kelly Allen, a self-employed contractor, met the complainant at a Home Depot while she was shopping for paint supplies. He offered to do home renovations, and over the course of three months—December 2015 through February 2016—she paid him roughly $12,500 to perform various home improvements.
Allen completed a significant portion of the agreed-upon work: installing bathroom fixtures, kitchen cabinetry, recessed lighting, ceiling fans, and more. He also purchased and delivered materials such as lighting, a refrigerator, tools, and a window.
However, the work stopped after the final payment. Some of the contracted renovations remained unfinished, and the complainant was dissatisfied with the quality of the work that had been done. Allen failed to return to the job and never reimbursed the complainant. When confronted later at Home Depot, he offered to return some of the money—but never did.
The Commonwealth charged him with larceny over $250 by a single scheme. At trial, the jury convicted him. But on appeal, the conviction didn’t hold up.
Legal Issue: When Is a Bad Contractor a Criminal?
The central legal question was whether the facts supported a conviction for larceny under G.L. c. 266, § 30(1), which requires proof of:
An unlawful taking,
Asportation (carrying away),
Of personal property of another,
With the specific intent to permanently deprive the owner of that property.
On appeal, Allen challenged the sufficiency of the evidence for two key elements:
The “unlawful taking” of money, and
The intent to steal.
The Appeals Court agreed that the evidence was legally insufficient to support the conviction and entered a judgment of not guilty.
Why the Court Reversed the Conviction
1. This Was a Business Relationship, Not a Theft
The court emphasized that Allen and the complainant had a consensual business relationship. The complainant voluntarily paid Allen for services rendered or to be rendered. Even though the work was unfinished and possibly substandard, there was no “unlawful taking” of money.
“This was a business relationship. The money provided to the defendant was payment for his work, both completed and anticipated.” — Appeals Court, Allen
In Massachusetts, a larceny conviction under a theory of “stealing” typically involves a trespassory taking—a theft without the owner’s consent. But Allen was paid in advance, and then began and partially completed the contracted work. This undermined the notion that he unlawfully took the money.
The court drew a contrast with cases where a contractor fraudulently overcharges or invents false invoices. In Commonwealth v. Watterson, 99 Mass. App. Ct. 746 (2021), for example, the victim explicitly refused to pay an inflated fee, and the defendant took the money anyway—without consent.
That’s a crime.
In Allen’s case, the homeowner handed over the money voluntarily, based on an agreement that Allen at least partially performed.
2. No Proof of Intent to Steal at the Time of Payment
To convict someone of larceny, prosecutors must prove criminal intent at the moment of the taking. That means they have to show the defendant took the money knowing he would never perform the work or intending to deceive the victim.
But in this case, the evidence showed that Allen:
Purchased tools and materials,
Delivered them to the complainant’s home,
Installed various fixtures and appliances,
Continued working after each payment.
While his later failure to complete the job may have been unethical or even actionable in civil court, it did not prove that he intended to steal at the time he accepted the money.
“The defendant did not take the money and run.” — Appeals Court, Allen
The court acknowledged that Allen’s conduct was “not honorable,” but it refused to convert a contractual dispute into a felony conviction. Without proof of fraudulent intent from the outset, there was no larceny.
The Broader Implication: Criminal Court ≠ Small Claims Court
This ruling reinforces a crucial distinction in Massachusetts criminal law: Not every bad business deal is a crime. Larceny convictions carry serious consequences—including potential incarceration, restitution orders, loss of licensure, and a permanent felony record.
The Appeals Court’s reversal of Allen’s conviction is a reminder to prosecutors and judges that the criminal justice system should not be a backstop for failed business relationships. When a homeowner is dissatisfied with a contractor’s performance, the proper venue is likely civil court, not criminal court.
Why This Case Matters for Contractors and Consumers Alike
For Contractors:
If you’re a contractor facing criminal charges based on an unhappy customer’s allegations, you may think you're doomed—but that’s not necessarily true. As Allen shows, simply being sued or accused of poor workmanship does not make you a thief.
To convict a contractor of larceny, the Commonwealth must prove beyond a reasonable doubt that you took the money with criminal intent, not just that you did a bad job or failed to finish. Incomplete or shoddy work can support a civil breach of contract claim—but not always a criminal case.
Tip: Always document your contracts, materials purchased, work performed, and communications with customers. These records could make the difference between a dispute and a felony.
For Consumers:
If you’ve been wronged by a contractor, there are legitimate avenues to pursue justice:
File a claim in Small Claims Court or Superior Court,
Submit a complaint to the Massachusetts Attorney General’s Office or Office of Consumer Affairs,
Report the issue to the contractor’s licensing board,
Or seek restitution through civil litigation.
Jumping straight to criminal charges may result in a wrongful conviction—or, as in Allen, an eventual reversal. It’s essential to understand the legal standards before pursuing criminal enforcement.
How Boston Criminal Defense Attorneys Can Help
If you're a contractor accused of theft, fraud, or larceny based on your business practices, we can help. At our firm, we understand that construction projects are complex—and that misunderstandings, scheduling conflicts, or even poor workmanship do not automatically equate to criminal conduct.
We’ll dig into the timeline of events, challenge assumptions about intent, and present your side of the story. We’ll also push back against overcharging, prosecutorial overreach, and attempts to criminalize contract disputes.
Likewise, if you're a homeowner who finds yourself drawn into a criminal case—as a complainant, a witness, or even a defendant—we can advise you about the appropriate legal remedies and how to avoid unintended consequences.
Key Takeaways from Commonwealth v. Allen (2025)
Intent is everything. A contractor cannot be convicted of larceny unless the prosecution proves they intended to steal the money when it was received.
Contractual disputes don’t equal criminal cases. Even if work was unfinished or poorly done, that’s not enough to convict someone of theft.
The burden of proof is high. The Commonwealth must show beyond a reasonable doubt that the taking was unlawful and that the defendant meant to deprive the owner of the money permanently.
Evidence matters. In Allen’s case, the fact that he completed part of the work, bought materials, and returned to the site defeated the larceny charge.
Courts are skeptical of turning every bad business deal into a criminal case. Civil court is often the proper venue for resolving home renovation disputes.
Final Word: Honest Work Isn’t a Crime—Even If It’s Incomplete
The Appeals Court said it best: "Absent other evidence that the defendant possessed the requisite intent at the time he received the payments, the defendant's failure to perform is, on its own, insufficient to show intent."
This is the cornerstone of criminal justice: we punish wrongful acts, not poor outcomes. At our Boston criminal defense firm, we fight for contractors, workers, and business owners whose reputations and freedom are put at risk by unfounded criminal charges.
If you've been charged with larceny, contractor fraud, or theft by scheme in Massachusetts, don't wait. Contact us today for a confidential consultation.