The opinion
Brown, J.
(dissenting). What unsettles the majority here, while unspoken, is not obscure. Like the majority in Commonwealth v. Moreton, 48 Mass. App. Ct. 215, 219 (1999), a case that shares many affinities with the present action, the majority here is doubtless concerned that any effort to subject business cheats to criminal liability may have unintended and *777 unwelcome effects on commercial activity. As the majority concluded in Moreton, supra at 220 , applying larceny principles to contract defaults would “burden [business] transactions . . . to the ultimate disadvantage of all the parties.” Similar concerns perhaps guide the majority’s view here; without question, subjecting every contractor who is late in starting a job to a larceny prosecution would have a powerful chilling effect on the building trade.
Needless to say, with respect to most business disputes, it would make little sense to substitute the crude tool of criminal prosecution for the purpose-built conventions that traditionally govern mercantile conduct. The Uniform Commercial Code, Bankruptcy Code, and civil law collectively define a comprehensive system for allocating rights and duties in business settings, and typically provide fair and adequate means of redress when deals go bad. However, that is not to say that business misconduct can never fall within the purview of the criminal law — indeed, the sharp rise in the prosecution of white collar crime in recent years strongly suggests otherwise. See Pitt & Groskaufmanis, Minimizing Corporate Criminal and Civil Liability: A Second Look at Corporate Codes of Conduct, 78 Geo. LJ. 1559, 1573-1574 (1990).
It is difficult to generalize about the types of commercial misconduct that should be deemed criminal acts. However, a key factor, as always in the criminal law, is intent. And it is on this issue that I diverge most sharply from the majority. The majority concludes that, as to both complaints, there was legally insufficient evidence to support an inference of an intent, at the time of the agreement, to keep the victims’ money and not to perform the paid-for services. I think there was ample evidence here to support such an inference (or at least an inference that the defendant at some point formed such an intent) as to both complaints, but in particular with respect to the second complaint involving Antoinette Mazza. As a result, I respectfully dissent.
More than one hundred years ago, in Commonwealth v. Rubin, 165 Mass. 453, 456 (1896), a larceny case not unlike the one before us, Justice Holmes observed that intent is typically “decisive as to larceny,” and “subsequent conduct” is good *778 “evidence of the original intent,” particularly when the property converted is received under “ambiguous” circumstances. This is consistent with the ancient principle that “[w]henever the intent of a party forms part of the matter in issue . . . evidence may be given of other acts, not in issue, provided they tend to establish the intent of the party in doing the acts in question.” Cook v. Moore, 65 Mass. 213, 216 (1853).
These basic precepts are enshrined in modem criminal law under the rubric of subsequent bad acts. As we stated recently in Commonwealth v. Delong, ante 122, 129 (2003), quoting from Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001), “[i]t is within the trial judge’s discretion to admit evidence of acts committed subsequent to the offenses for which the defendant is on trial . . . [for the purpose of proving] ‘intent, motive, or state of mind at the time of the crime.’ ” Bringing these concepts to bear on the facts here, if the inference of an intent to steal was still ambiguous at the time the arrest warrants were issued (as the majority emphasizes), the fact that the defendant subsequently, even up to the day of trial, made no effort whatsoever to make reparations, in my view erases all doubt about the defendant’s intent to keep the victims’ money and not to perform the paid-for services.
Moreover, it is precisely this evidence of the defendant’s subsequent conduct that takes this case out of the ordinary category of simple delayed building work — and precludes our decision here from affecting the vast majority of business disputes. An honest but dilatory contractor, in these circumstances, would have made some subsequent effort to resolve these disputes in a businesslike manner. 1 That no such efforts were made, combined with the other inculpatory evidence adduced at trial, support the convictions here. The failure of the majority to weigh the evidence of the defendant’s subsequent bad acts in its legal sufficiency calculus led, I believe, to the wrong result.
Finally, in my view, even without the evidence of the defendant’s subsequent conduct, the evidence with respect to *779 the second complaint was legally sufficient in any event. The defendant provided Mazza with two telephone numbers at the time he collected her money. Twelve days later Mazza attempted to get hold of the defendant using those numbers, only to discover that one was disconnected and that the other was the number of the defendant’s landlord. Given the timing, the fact finder reasonably could have inferred that the defendant knowingly gave Mazza bad contact information to frustrate efforts to locate him. In combination with the other evidence, this was a sufficient basis for inferring the requisite intent to steal. See Commonwealth v. Williams, 422 Mass. 111, 121 (1996).
Such efforts potentially could include a bankruptcy filing, a lawful means of discharging the liability.