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15-P-1689 Appeals Court
COMMONWEALTH vs. BRYAN DRISCOLL.
No. 15-P-1689.
Suffolk. January 6, 2017. - May 9, 2017.
Present: Kafker, C.J., Hanlon, & Agnes, JJ.
Fraud. Larceny. Motor Vehicle, Insurance. Insurance, Motor
vehicle insurance, Defrauding insurer. Evidence,
Insurance, Fraud, Hearsay, Business record, Accident
report, Authentication of document, Best and secondary.
Practice, Criminal, Hearsay.
Complaint received and sworn to in the West Roxbury
Division of the Boston Municipal Court Department on May 7,
2014.
The case was tried before Paul J. McManus, J.
Sarah M. Unger for the defendant.
L. Adrian Bispham, Assistant District Attorney, for the
Commonwealth.
AGNES, J. The defendant appeals, after a trial by jury,
from his convictions on a complaint charging him with motor
vehicle insurance fraud in violation of G. L. c. 266, § 111B,
2
and attempted larceny of property with a value greater than $250
in violation of G. L. c. 274, § 6.
Background. The jury could have found the following facts
based on the evidence presented at trial.1 On August 30, 2012,
the defendant obtained compulsory and comprehensive insurance
coverage from Commerce Insurance Company (Commerce) on his 2001
Ford Explorer. At 4:00 A.M. on November 11, 2012, Boston police
Officer Joseph Galvin responded to a report of a motor vehicle
accident on Allandale Road in the Jamaica Plain section of
Boston. Allandale Road is a winding, country road sparsely
populated with buildings. Allandale Farm is located on
Allandale Road. Upon arriving at the scene, Officer Galvin
found a black 2001 Ford Explorer abandoned on the sidewalk. It
appeared that the vehicle had crashed into a stone wall and
sustained damage "all over it."
The defendant filed a "single-vehicle accident" report with
Commerce. Joshua Tucker, a claims adjuster with Commerce,
explained that a "single-vehicle accident" or "single-vehicle
collision" refers to a situation in which a vehicle is damaged
and no other vehicles are involved, such as when a vehicle
slides on ice and strikes a snowbank. In such a case, an
insured with "collision" coverage would be compensated by
1
We reserve certain other facts for discussion of specific
issues below.
3
Commerce to cover the loss. A person with only "comprehensive"
coverage would not be entitled to recover for his loss in such a
case. If, however, a driver strikes an animal and comes to a
stop or after striking the animal swerves and then goes off the
road and strikes a wall, the loss would be covered under
"comprehensive" coverage because it involved an animal strike.
The defendant claimed in his motor vehicle accident report
(accident report) (trial exhibit 5) that he hit a "Bison or
Moose" on Allandale Road, which caused him to swerve into a
stone wall. The defendant reported that the "[a]nimal got up
and ran away." No animal was found at the scene. In addition,
no hair, fur, or blood was found during the inspection of the
defendant's vehicle. At the time of the accident, Allandale
Farm did not have any bison, moose, or buffalo. They did have
two large Scottish Highland steers, but they did not go missing
on the day of the collision. Also, these animals were examined
by a veterinarian who found no evidence that they had been
injured. An accident reconstruction expert examined the
defendant's vehicle and opined that there was no evidence of an
animal strike, and that the event had not occurred in the way
described by the defendant. An appraiser "deemed the vehicle a
total loss"2 with a value of $5,700.
2
"[T]he amount of damage exceeds the cash value of the
vehicle."
4
The jury were warranted in finding that the defendant was
aware that he had comprehensive insurance coverage and not
collision coverage on his vehicle, and that he was aware of the
differences between these coverages. It was also reasonable for
the jury to infer that prior to the event in question, the
defendant understood that if he lost control of his vehicle and
struck a wall, his insurance would not cover the loss, whereas
if he struck an animal before hitting a wall the loss would be
covered.
The defendant was charged with one count of motor vehicle
insurance fraud under G. L. c. 266, § 111B, and one count of
attempted larceny over $250 under G. L. c. 274, § 6. The jury
found the defendant guilty on both counts. We affirm the
conviction of insurance fraud, but reverse the attempted larceny
conviction.
Discussion. The defendant argues that the judge erred by
admitting the accident report and his coverage selections page
(trial exhibit 2) under the business records exception to the
hearsay rule, and allowing Commerce's adjuster, Tucker, and the
defendant's insurance agent, Todd Sullivan, to testify to the
contents of the defendant's insurance application and policy in
violation of the "best evidence rule."3 We review evidentiary
3
Because certain issues regarding a best evidence rule
violation were not preserved by objection at trial, namely
5
rulings for an abuse of discretion, which requires a
demonstration that the judge "made a clear error of judgment in
weighing the factors relevant to the decision such that the
decision falls outside the range of reasonable alternatives."
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation
omitted). The defendant also maintains that the Commonwealth
presented insufficient evidence to find him guilty on both
counts of the complaint. We address each argument in turn.
1. Business records exception. General Laws c. 233, § 78,
as amended by St. 1954, c. 87, § 1, provides in part that a
record made in the regular course of business "shall not be
inadmissible . . . because it is hearsay."4 "Such a record is
testimony concerning the defendant's insurance application and
insurance policy, different standards of review are required.
4
General Laws c. 233, § 78, reads in pertinent part as
follows:
"An entry in an account kept in a book or by a card system
or by any other system of keeping accounts, or a writing or
record, whether in the form of an entry in a book or
otherwise, made as a memorandum or record of any act,
transaction, occurrence or event, shall not be inadmissible
in any civil or criminal proceeding as evidence of the
facts therein stated because it is transcribed or because
it is hearsay or self-serving, if the court finds that the
entry, writing or record was made in good faith in the
regular course of business and before the beginning of the
civil or criminal proceeding aforesaid and that it was the
regular course of such business to make such memorandum or
record at the time of such act, transaction, occurrence or
event or within a reasonable time thereafter. For the
purposes hereof, the word 'business,' in addition to its
6
presumed to be reliable and therefore admissible because entries
in these records are routinely made by those charged with the
responsibility of making accurate entries and are relied on in
the course of doing business." Wingate v. Emery Air Freight
Corp., 385 Mass. 402, 406 (1982). See Mass. G. Evid.
§ 803(6)(A) (2017). There was evidence that would permit the
jury to find that an agent of Sullivan's insurance agency,
through which the defendant purchased his insurance, filled out
the coverage selections page based on information provided by
the defendant, and then transmitted it to Commerce, which in
turn relied on the coverage selections page in initiating the
inquiry that led to the criminal prosecution of the defendant.
The defendant contends that the coverage selections page
does not qualify as a business record because (1) it was a copy,
and Tucker's attestation was insufficient to authenticate it;
and (2) the necessary foundation for this exception to the
hearsay rule was lacking. The coverage selections page lists
the defendant, his vehicle, and his choices of automobile
insurance coverage. Information contained in the coverage
selections page was essential in this case to enable the
Commonwealth to prove that the defendant's insurance claim was
knowingly fraudulent in violation of G. L. c. 266, § 111B.
ordinary meaning, shall include profession, occupation and
calling of every kind."
7
However, we agree with the Commonwealth that Tucker's testimony
served to authenticate the copy of the coverage selections page
that was admitted at trial as exhibit 2 in satisfaction of G. L.
c. 233, § 79A,5 that Tucker qualified as a keeper of the records,
and that his testimony supplied the necessary foundation for the
document to be admitted as a business record. See Mass. G.
Evid. §§ 803(6), 901(a) (2017).
"Generally, for documents (including business records) to
be admissible, regardless of the purpose for which they are
being offered, they must be identified, shown to be relevant,
and authenticated by a witness who is familiar with them. Here,
the manner of authentication was sufficient to provide the
necessary indicia of genuineness." Commonwealth v. Duddie Ford,
Inc., 28 Mass. App. Ct. 426, 435 (1990), S.C., 409 Mass. 387
(1991). See Commonwealth v. Perez, 89 Mass. App. Ct. 51, 60-61
(2016). Though the rule usually requires an original writing or
record, "[i]n 1941, apparently reflecting a recognition of both
the development and reliability of mechanical forms of document
reproduction, the Legislature enacted G. L. c. 233,
5
General Laws c. 233, § 79A, as appearing in St. 1948,
c. 154, provides in part as follows: "Copies of public records,
. . . and of records of banks, trust companies, insurance
companies and hospitals, whether or not such records or copies
are made by the photographic or microphotographic process,
shall, when duly certified by the person in charge thereof, be
admitted in evidence equally with the originals." See Deutsche
Bank Natl. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 566-567
(2012).
8
§ 79A, which" allows certified copies of insurance company
records, "when duly certified by the person in charge thereof,
[to] be admitted in evidence equally with the originals."
Deutsche Bank Natl. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564,
567 (2012), quoting from G. L. c. 233, § 79A. The statute and
case law are silent on what is meant by the phrase "duly
certified" as it appears in § 79A. However, we draw guidance
from Commonwealth v. Deramo, 436 Mass. 40, 48 (2002), where the
court discussed the certification requirement of G. L. c. 233,
§ 76.6 In Deramo, the court explained that "when a party takes a
properly authenticated copy of an official record and then makes
his own copy of it, the official whose attestation is required
has not 'attested' to the authenticity of that later copy."
Ibid. Section 79A appears to be designed to achieve the same
purpose as § 76. As a result, Tucker's testimony at trial that
exhibit 2 was the defendant's coverage selections page satisfied
the attestation requirement under § 79A, even though the copy of
exhibit 2 to which Tucker attested did not serve that purpose.
See ibid. Therefore, exhibit 2, the coverage selections page,
was properly authenticated.
6
"Copies of books, papers, documents and records in any
department of the commonwealth or of any city or town,
authenticated by the attestation of the officer who has charge
of the same, shall be competent evidence in all cases equally
with the originals thereof." G. L. c. 233, § 76, as amended by
St. 1997, c. 164, § 282.
9
As to the defendant's second contention, "a document is
admissible as a business record if the judge finds that it was
(1) made in good faith; (2) made in the regular course of
business; (3) made before the action began; and (4) the regular
course of business to make the record at or about the time of
the transaction or occurrences recorded." Beal Bank, SSB v.
Eurich, 444 Mass. 813, 815 (2005). "A judge's decision to admit
the records implies these requisite findings under G. L. c. 233,
§ 78." Ibid.
There is no reference in G. L. c. 233, § 78, to a "keeper
of the records." The law presumes that "business records" are
sufficiently reliable to overcome a hearsay objection because
the judge's preliminary findings demonstrate that the fact
finder could conclude that the records are routinely made by
someone with a business duty to make "accurate entries and are
relied on in the course of doing business." Id. at 815
(quotation omitted). When a witness is called to provide the
foundation evidence to permit the judge to make these
preliminary findings, it is not necessary that the witness have
personal knowledge of the facts contained in the records. See
Sellew v. Tuttle's Millinery Inc., 319 Mass. 368, 371 (1946).7
7
However, when authentication is a live issue, the judge
has discretion to require that a witness who has personal
knowledge of the facts stated in the record be called to
authenticate a business record. See G. L. c. 233, § 78. See
10
Likewise, under the Federal Rules of Evidence, there is no
requirement that a specially designated "keeper of the records"
must supply the foundation evidence to qualify records for
admission under the business records exception.8 The flexible
view of who may supply the foundation facts for purposes of the
business records exception reflected in the Federal Rules of
Evidence is consistent with the settled Massachusetts view that
G. L. c. 233, § 78, "should be interpreted liberally to permit
the receipt of relevant evidence." Beal Bank, SSB, 444 Mass. at
817 (quotation omitted). See McLaughlin v. CGU Ins. Co., 445
Mass. 815, 819 (2006).
In this case, the record demonstrates that Tucker had
sufficient understanding of Commerce's record-keeping system to
support admitting the coverage selections page as a business
record. Tucker was familiar with the records in question, and
also Burns v. Combined Ins. Co. of America, 6 Mass. App. Ct. 86,
92 (1978).
8
Under the Federal Rules of Evidence, this requirement may
be established "by the testimony of the custodian or another
qualified witness." Fed.R.Evid. § 803(6) (2017). In order to
be a qualified witness for purposes of Fed.R.Evid. § 803(6), the
witness does not have to be employed by the record-keeping
entity, to have played a role in the creation of the document,
or to have personal knowledge of the contents of the document.
See United States v. Console, 13 F.3d 641, 657 (3d Cir. 1993);
United States v. Iredia, 866 F.2d 114, 119-120 (5th Cir. 1989);
United States v. Hathaway, 798 F.2d 902, 906 (6th Cir. 1986).
"A qualified witness is simply one who can explain and be cross-
examined concerning the manner in which the records are made and
kept." Wallace Motor Sales, Inc. v. American Motor Sales Corp.,
780 F.2d 1049, 1061 (1st Cir. 1985).
11
testified that they were made in good faith, kept in the normal
course of business, and relied on by Commerce's personnel.
Tucker's testimony also served to authenticate the coverage
selections page and made up for the absence of an original of
the affidavit he prepared. Although there are inconsistencies
in Tucker's testimony, we cannot say that the judge abused his
discretion in determining that Tucker supplied the foundation
requirements for the business records exception. Therefore, the
judge did not err in admitting an authenticated copy of the
coverage selections page as a business record.
2. Best evidence rule. The best evidence rule expresses a
preference for the original of a document or record. It
requires that, in order to prove the contents of a writing or
record, the proponent must provide the original. See Mass. G.
Evid. § 1002 (2017).9 If the original is not available, the
proponent must "show a sufficient excuse for its nonproduction."
Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001). In cases where
the original has been lost or destroyed, or is otherwise
unavailable, a copy or "other evidence of its contents will be
admissible, provided that certain findings are made" by the
judge. Ibid. The purpose of the best evidence rule is
"principally aimed, not at securing a writing at all hazards and
9
The best evidence rule does not apply to photographs,
videotapes, audio tape recordings, or data in digital form. See
Mass. G. Evid. § 1002 Note at 355-356 (2017).
12
in every instance, but at securing the best obtainable evidence
of its contents." Ibid., quoting from 2 McCormick, Evidence
§ 237 (5th ed. 1999).
a. Noncertified copies. At trial, the defendant objected
to the admission in evidence of noncertified copies of the
defendant's coverage selections page and the accident report.
The defendant argues that it was error to admit the coverage
selections page because it is a copy, not the original, and the
Commonwealth did not "show a sufficient excuse for its
nonproduction." Ocasio, supra at 6. We agree with the
Commonwealth that an application of the best evidence rule is
not determinative of whether the coverage selections page was
admissible because, as we have already indicated, it was
admissible as a business record. See Mass. G. Evid.
§ 803(6)(A).
The defendant also argues that the accident report should
not have been admitted, as it too violated the best evidence
rule and was insufficiently authenticated. The relevant portion
of the accident report is the defendant's statement that he
"swerved" after "contact" with "a large animal (Bison or
Moose)." When the statement of a party opponent, which is
admissible as an exception to the hearsay rule, see Mass. G.
Evid. § 801(d)(2)(A) (2017), happens to be contained in a
writing, the proponent is not required to produce or account for
13
the original. See Mass. G. Evid. § 1007 (2017). Here, the only
objection to the admission of the accident report raised by the
defendant at trial was based on the best evidence rule. For the
first time on appeal, the defendant argues in the alternative
that the accident report should not have been admitted because
it was not established that it bore his signature or contained
his statement and thus did not qualify as the statement of a
party opponent. Although the judge excluded a similar statement
made by the defendant to a representative of the insurance fraud
bureau on grounds that it was not made voluntarily, and Tucker
was not able to authenticate the signature on the accident
report as that of the defendant, Tucker did testify on cross-
examination that the defendant reported a loss to Commerce
because his vehicle "struck an animal, and went off the road."
There was no motion to strike. See Commonwealth v. Wadlington,
467 Mass. 192, 205-206 (2014); Commonwealth v. Houghtlin, 16
Mass. App. Ct. 691, 695 (1983).
As a result, even though the accident report itself was
insufficiently authenticated and admitted in violation of the
best evidence rule, the jury heard testimony from Tucker from
which they reasonably could infer that the defendant filed a
claim for a loss with Commerce in which he reported striking a
large animal with his vehicle and, as a result, crashed into a
wall. Therefore, assuming it was error to admit the accident
14
report, a consideration of the evidence as a whole demonstrates
that it did not contribute anything of significance to the case.
b. Testimony on insurance application and policy. The
defendant also contends that the judge allowed Tucker and
Sullivan to testify as to the contents of his insurance
application and policy in violation of the best evidence rule.
In support, the defendant repeats his argument that the
originals, or an excuse for their nonproduction, were never
provided. However, the defendant made no objection to the
testimony in question. We review alleged errors not preserved
by objection for a "substantial risk of a miscarriage of
justice," Commonwealth v. Walker, 443 Mass. 867, 871 (2005), "to
determine if we have a serious doubt whether the result of the
trial might have been different had the error not been made."
Commonwealth v. Azar, 435 Mass. 675, 687 (2002) (quotation
omitted).
The judge did not allow the Commonwealth to introduce the
defendant's insurance application.10 Rather, the testimony of
Tucker and Sullivan, based on personal knowledge, explained the
different types of insurance coverage; what kinds of incidents
were covered under the various types of insurance coverage; the
10
The judge, sustaining the defendant's objection, did not
allow the Commonwealth to introduce the insurance application
because the insurance application apparently had pages from a
different policy mixed in with the file, creating confusion.
15
types of insurance coverage available to the defendant
(comprehensive or collision); and the information generally
included in an insurance policy. Defense counsel, on the other
hand, through cross-examination of Tucker, elicited testimony
about the insurance policy, including its length and description
of the types of coverage. Neither Tucker nor Sullivan was
permitted to testify directly to the contents of the defendant's
insurance application or policy.
We agree with the Commonwealth that any testimony that
referred to the contents of the defendant's insurance
application or policy was in response to good faith preliminary
questions in an effort to lay a sufficient evidentiary
foundation before the judge made his ruling that the documents
were not admissible. The only testimony about the content of
the defendant's insurance application that was admitted before
the judge ruled that the document was not admissible was that
the defendant signed the application in August, 2012.
Considering "the strength of the Commonwealth's case,"
Commonwealth v. Williams, 65 Mass. App. Ct. 9, 13 (2005), the
testimony concerning the defendant's insurance application and
insurance policy did not create a substantial risk of a
miscarriage of justice.
3. Sufficiency of the evidence. Finally, the defendant
argues that the Commonwealth presented insufficient evidence to
16
support the charges against him. At the close of evidence, the
defendant moved for a required finding of not guilty, which was
denied. When reviewing the denial of a motion for a required
finding of not guilty, "we consider the evidence, together with
permissible inferences from that evidence, in the light most
favorable to the Commonwealth and 'determine whether any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'" Commonwealth v.
Platt, 440 Mass. 396, 400 (2003), quoting from Commonwealth v.
Cordle, 412 Mass. 172, 175 (1992).
a. Motor vehicle insurance fraud. To find a defendant
guilty of violating G. L. c. 266, § 111B, the Commonwealth must
present evidence proving beyond a reasonable doubt that
"(1) the defendant, in connection with a claim under a
motor vehicle insurance policy issued by an insurer, (2)
with the intent to injure, defraud, or deceive such
insurer, (3) did knowingly present to it, or aid or abet in
or procure the presentation to it, (4) a notice, statement,
or proof of loss, (5) knowing that such notice, statement,
or proof of loss contained a false or fraudulent statement
or representation, (6) of any fact or thing material to
such claim."
Commonwealth v. Jerome, 56 Mass. App. Ct. 726, 732 (2002),
quoting from Commonwealth v. Charles, 428 Mass. 672, 683 n.8
(1999).
Here, the testimony provided sufficient evidence from which
the jury could find that all six elements were proved. First,
Tucker's and Sullivan's testimony established that the defendant
17
made a claim under his insurance policy for the incident on
Allandale Road. Second, a jury could reasonably infer from the
evidence that the defendant intended to fit the incident under
his policy by stating that he first struck an animal before
swerving his vehicle into the wall. No evidence was found
suggesting that an animal was involved in the incident; in fact,
there was evidence negating that proposition. Next, based on
the evidence, the jury could find that the defendant made the
accident report and presented it to Commerce, thus satisfying
the third and fourth elements. Fifth, from the evidence
regarding the differences between comprehensive and collision
coverage, the jury could reasonably infer that the defendant
knew he would not be covered if he said he had hit a wall
without first hitting an animal.
The jury could infer the final element, materiality, from
the unusual nature of the accident, which involved striking a
large animal, such as a "Bison or Moose," so close in proximity
to urban Boston, in addition to the testimony proving the other
elements. Such evidence suggests that the cause of the accident
was material to the defendant's claim. Ultimately, the jury
could have inferred that the defendant knowingly concocted a
story that would bring his accident under the coverage of an
insurance policy that otherwise did not cover a single-vehicle
accident, and did so by stating that he first hit an animal
18
before hitting a wall, which caused severe damage to his
vehicle.
Therefore, based on the evidence presented at trial, the
jury could have found the defendant guilty of motor vehicle
insurance fraud under G. L. c. 266, § 111B.
b. Attempted larceny over $250. The jury also found the
defendant guilty of attempted larceny over $250. The
Commonwealth has conceded that the judge's instruction on this
issue was insufficient. "Our review confirms the necessity of
this concession." Commonwealth v. Santos, 65 Mass. App. Ct.
122, 124 (2005). Accordingly, the defendant's conviction of the
attempted larceny over $250 should be reversed.11
Conclusion. The judgment as to the count charging motor
vehicle insurance fraud in violation of G. L. c. 266, § 111B, is
affirmed. The judgment as to the count charging attempted
larceny of property with a value greater than $250 in violation
of G. L. c. 274, § 6, is reversed, and the verdict is set aside.
11
The complaint did not specify the type of attempted
larceny charged. The judge gave jury instructions only for
larceny by asportation, to wit: "first, that the defendant took
and carried away property; second, that the property was owned
or possessed by someone other than the defendant; and third,
that the defendant did so with the intent to deprive that person
of the property permanently." The Commonwealth presented no
evidence that the defendant "took and carried away property."
As the jury were only instructed on this one theory of larceny,
the conviction on that count cannot stand. See Commonwealth v.
Mills, 436 Mass. 387, 398 (2002) ("A criminal conviction cannot
be affirmed on appeal where the jury were not instructed on the
elements of the theory of the crime").
19
So ordered.
Commonwealth v. Driscoll
Combined Opinion