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11-P-2166                                                 Appeals Court

                   COMMONWEALTH     vs.   GLORIA PEREZ.


                               No. 11-P-2166.

       Essex.           December 10, 2015. - February 3, 2016.

            Present:    Kafker, C.J., Milkey, & Sullivan, JJ.


Larceny. Bank. Constitutional Law, Confrontation of witnesses.
     Practice, Criminal, Confrontation of witnesses. Evidence,
     Hearsay, Verbal conduct, Business record, Authentication of
     document.


     Indictments found and returned in the Superior Court
Department on April 30, 2008.

    The cases were tried before Leila R. Kern, J.


     Andrew S. Crouch for the defendant.
     Philip Anthony Mallard, Assistant District Attorney, for
the Commonwealth.


    MILKEY, J.         "[W]here's Phyllis?"   A bank teller posed that

question to the defendant who was seeking to withdraw $300 from

the checking account of an absent bank customer.          The defendant,

who worked as a customer service representative at the bank, had

presented a withdrawal slip purportedly signed by Phyllis Wall,
                                                                      2


an elderly customer who relied on a walker and was well known to

the employees at that particular branch.     In response to the

question, the defendant stated that Wall had signed the

withdrawal slip earlier that day and that she planned to give

the money to Wall later.   The teller gave the defendant the

money, but then notified the branch manager about the

transaction.1   An internal investigation ensued, and the

defendant ultimately was indicted for twenty-six property

offenses, all related to alleged theft from customer accounts.

After trial, a Superior Court jury convicted the defendant of

six of those offenses:   two counts of larceny over $250, one of

which was from a person sixty years or older (G. L. c. 266,

§ 30[1], [5]), two counts of forgery (G. L. c. 267, § 1), and

two counts of uttering (G. L. c. 267, § 5).     On appeal, she

challenges the admission of various bank records, and she claims

that the evidence for one of the larceny charges was

insufficient in one respect.    We affirm.

     Background.   The Phyllis Wall withdrawals.    Five of the six

convictions involved Wall.     The defendant frequently assisted

Wall with her transactions, such as obtaining money orders to

pay all of her bills.    The five convictions related to Wall

involved two cash withdrawals, including the one described


     1
       Making cash withdrawals for customers who were not
physically present was a violation of bank policy.
                                                                      3


above, which took place on July 21, 2006.     As noted, the

withdrawal slip that the defendant presented during that

transaction was purportedly signed by Wall.     Wall was not

available to testify as to whether the signature on the slip was

her own, because she had died by the time of trial.     However,

the jury were able to compare that allegedly forged signature

against genuine signatures from Wall on other documents entered

in evidence.

    The July 21, 2006, withdrawal slip purportedly signed by

Wall also bore the initials of the defendant beside the words

"ID only."     That annotation signified that the teller could cash

the withdrawal slip without checking Wall's identification,

because the defendant had already done so.     As documented by

other bank records, thirteen minutes after receiving the $300

cash from Wall's account, the defendant deposited $200 cash into

her own bank account through a different teller.

    The other relevant transaction involving Wall was a

withdrawal of $1,000 from her checking account on June 5, 2006.

Like the other transaction, the withdrawal slip bore a signature

that did not appear to match Wall's, as well as the defendant's

initials alongside an "ID only" annotation.     A minute after the

$1,000 was withdrawn from Wall's account, the defendant

deposited the same amount into the account of another customer,

Judson Silva.    The Commonwealth's theory was that the defendant
                                                                   4


used the $1,000 from Wall to replace $1,000 she previously had

taken from Silva.2

     For each of the two withdrawals from Wall's account, the

defendant was convicted of forgery and uttering.    She was also

convicted of one count of larceny over $250 from Wall, a person

over sixty years old.

     The Hector Rodriguez withdrawals.   The defendant's

remaining conviction was for larceny over $250 involving a

different customer, Hector Rodriguez.    Rodriguez was a Spanish

speaker, and he regularly had sought the defendant's assistance

because she also spoke Spanish.   The bank's internal fraud

investigator, Thomas Backstrom, scrutinized Rodriguez's

transactions because bank records revealed that the defendant

had spent an unusual amount of time accessing his accounts, and

those of Wall and a third individual.3   The bank's branch manager

later discovered signature cards from these three individuals in

the defendant's desk.


     2
       Silva had deposited a $48,000 foreign check into his
checking account, but the bank put a hold on his accessing those
funds. He approached the defendant about this problem, and she
informed him that the hold could be removed but that he would be
charged a $1,000 fee. As the branch manager during that time
period testified, there was no such fee under bank policy.
After the hold was removed, Silva pressed the defendant to have
the "fee" refunded.
     3
       The defendant was charged with, but acquitted of, various
offenses involving the third individual.
                                                                    5


     Rodriguez had credit problems, and the defendant assisted

him in addressing those problems and in paying his bills.     The

Commonwealth introduced records that showed that Rodriguez made

significant withdrawals (or similar cash outs) on seven

occasions, and that many of the transactions bore the

defendant's initials.4   Rodriguez testified that he never

received any cash from those transactions.   He also testified

that the defendant went to see him at his workplace and

unsuccessfully tried to get him to sign a letter stating that

bank officials had "forced [him] to sign the papers."5

     The defendant's interview.   On August 2, 2006 (that is,

less than two weeks after the "where's Phyllis?" incident),

Backstrom, the bank's investigator, interviewed the defendant.

According to Backstrom's testimony, the defendant admitted that

she -- not Wall -- had signed the withdrawal slip for the $300

withdrawal, but she claimed that she later brought the money to

Wall's home and left it in her mailbox.   She admitted to making

the $1,000 withdrawal from Wall's account, but denied depositing

it into Silva's account (claiming she did not know who made that

deposit).   She also denied having copies of the three signature


     4
       Some of the paperwork was in Rodriguez's handwriting and
some was not. The defendant was not charged with forgery or
uttering for any of the Rodriguez transactions.
     5
       The trial testimony never clarified which specific
"papers" were being referenced.
                                                                    6


cards at her desk.   Once the questioning became more pointed and

Backstrom began asking the defendant about customers claiming

that they had not received the money from withdrawals that she

had initiated, the defendant's demeanor changed.   Then, during a

break in the interview, she abruptly left, stating "that she had

nothing else to say and that if she was fired, she was fired."

    The introduction of bank records.    At trial, the

Commonwealth proffered a number of documents in support of its

case, such as the withdrawal slip from the July 21, 2006,

transaction.   It bears noting that some of those were compound

documents; that is, they included written information added by

different people (or by automated teller equipment) at different

points in time.   For example, the withdrawal slip from the July

21 transaction included the underlying bank form, the

information added to the form by the person seeking to withdraw

the money (amount, signature, and date), the defendant's

initials and "ID only" annotation, and the ink "spraying" added

to the slip by a machine when the withdrawal was processed by

the teller (showing date, time, and teller number).

    The prosecutor sought to introduce the bank documents

through the testimony of Backstrom.   Although Backstrom had no

formal law enforcement background, he had worked as a fraud

investigator for the bank for eight years at the time of trial,

before which he had worked as a teller supervisor.    His
                                                                   7


testimony during a pretrial voir dire6 and at trial revealed his

extensive familiarity with how the diverse bank records are

created and electronically stored, as well as how such records

could be accessed and reproduced in hard copy format.

Additional facts regarding the introduction of the documents are

reserved for later discussion.

     The defense.   The defendant took the stand.   She

acknowledged that she made both of the withdrawals from Wall's

checking account, but denied that she committed any offenses in

doing so.   With respect to the $300 withdrawal, she testified

that Wall had presigned the withdrawal slip (in contrast to

Backstrom's testimony that the defendant had admitted to him

that she signed Wall's signature).   The defendant also claimed

that she in fact hand-delivered the money to Wall later the same

day and that the $200 deposit that she made to her own account

directly after the withdrawal was from a different source.     With

respect to the $1,000 withdrawal, the defendant acknowledged

that she transferred the money from Wall's account into Silva's

account, but she claimed that she simply was rectifying a



     6
       The Commonwealth filed a motion in limine seeking to
introduce "affidavits of forgery" that bank customers had
completed regarding the individual transactions. After hearing
Backstrom's voir dire testimony, the judge ruled that these
documents could not be introduced and that the Commonwealth
instead would have to offer the individual transactional records
and testimony from the relevant bank customers still living.
                                                                      8


ministerial error she had made earlier.7     With respect to the

Rodriguez transactions, the defendant testified that Rodriguez

in fact authorized all the withdrawals and received the cash.

     Discussion.     The bank records.   The defendant challenges

the introduction of the relevant bank records on two different

statutory grounds, which we will address in turn.      Before doing

so, however, we frame the nature of the evidentiary disputes

before us.     The defendant claims that the introduction of the

documents allowed hearsay into evidence, and that this in turn

violated her rights pursuant to the confrontation clause of the

Sixth Amendment to the United States Constitution.      However, she

does not identify any out-of-court statements contained in the

documents that were admitted for their truth.      See Commonwealth

v. Siny Van Tran, 460 Mass. 535, 550 (2011), citing Mass. G.

Evid. § 801(c), at 230 (2011) ("The hearsay rule prohibits the

admission only of out-of-court assertions offered to prove the

truth of the matter asserted").     For many of the records, such

as the underlying withdrawal and deposit slips, the statements

contained therein were "not offered to prove the truth of the

matter [they] asserted, but rather only for the fact that [they

were] made."     Commonwealth v. Sullivan, 410 Mass. 521, 526

(1991).   Indeed, such embedded statements did not constitute

     7
       According to the defendant, she had put $1,000 aside from
Silva's account to cover potential fees and mistakenly had
deposited that into Wall's account.
                                                                   9


"factual assertion[s] at all," Williams v. United States, 458

U.S. 279, 284 (1982), but were instead "legally-operative verbal

acts" with legal significance independent of the truth of any

statement contained in them.   United States v. Pang, 362 F.3d

1187, 1192 (9th Cir. 2004).    The "verbal acts" doctrine also

encompasses the initials and "ID only" annotations that the

defendant added to the withdrawal slips before they were

processed.8   See United States v. Bowles, 751 F.3d 35, 39-40 (1st

Cir. 2014) (false signature endorsements on checks "recognized

as verbal acts that are not hearsay"); Commonwealth v. Purdy,

459 Mass. 442, 452-453 (2011) ("operative words" bearing

"independent legal significance" such as those "used to

effectuate the commission of a crime" are not hearsay).    See

also Mass. G. Evid. § 801(c), at 263 (2015).

     Other records were generated automatically by the bank's

computerized data management system when the transactions were

processed (memorializing such information as the date and time

of the transaction and which teller processed the transaction).

Examples include the "cash out credit" slip that accompanied the

July 21, 2006 withdrawal,9 and the ink "spraying" that was added


     8
       This is also of course true of signature cards and other
signature exemplars the bank had on file.
     9
       Indeed, the defendant herself testified that "[a] cash out
credit is basically generated automatically when the teller does
a transaction of any sort of withdrawing cash from any
                                                                     10


to withdrawal slips when they were processed.   Any content

included in these records does not raise hearsay concerns.     See

Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010)

("Because computer-generated records, by definition, do not

contain a statement from a person, they do not necessarily

implicate hearsay concerns").   See also Mass. G. Evid. § 801(a),

at 260 ("'Statement' means a person's oral assertion, written

assertion, or nonverbal conduct" [emphasis added]).

     In sum, the defendant has not identified any out-of-court

statements included in the relevant records that were admitted

for their truth.   As a result, the evidence did not raise a

confrontation clause issue.   See Tennessee v. Street, 471 U.S.

409, 413-414 (1985); Commonwealth v. Hurley, 455 Mass. 53, 65

n.12 (2009).   With no hearsay concerns raised by the records,

the defendant is left to argue that they were inadequately

authenticated.10



account. . . . [a]nd it would give you the date, time, the
branch number and the amount and the teller number."
     10
       Theoretically, the records also would have to satisfy the
best evidence rule to the extent that it applies, but the
defendant does not press such a claim. "The best evidence rule
provides that, where the contents of a document are to be
proved, the party must either produce the original or show a
sufficient excuse for its nonproduction." Commonwealth v.
Ocasio, 434 Mass. 1, 6 (2001). See Mass. G. Evid. § 1002.
Where, as here, the entity keeping the records has a system in
place to maintain accurate electronic copies of paper documents,
the production of the original is expressly excused by statute.
See G. L. c. 233, § 79E. See also Mass. G. Evid. § 1003, at
                                                                   11


    General Laws c. 233, § 78.     At trial, the prosecutor

treated the relevant documents as business records admissible

pursuant to G. L. c. 233, § 78, a statutory exception to the

hearsay rule.   To invoke that statute, the party proffering the

document must demonstrate

    "that (1) the entry, writing, or record was made in good
    faith; (2) in the regular course of business; (3) before
    the beginning of the civil or criminal proceeding in which
    it is offered; and (4) it was the regular course of such
    business to make such memorandum at the time of such act,
    transaction, occurrence, or event, or within a reasonable
    time thereafter."

Siny Van Tran, 460 Mass. at 548.   The defendant argues that

these prerequisites cannot be met for those documents that the

Commonwealth claimed were forged, such as the withdrawal slips

for the Wall withdrawals.   As the defendant puts it in her

brief:   "the Commonwealth could not both purport to the court

that the documents were forged in bad faith and records of

fraudulent transactions not part of the bank's ordinary




353. To the extent that any original records were in electronic
format, "[t]he best evidence rule does not forbid the use of
'copies' of electronic records (including e-mails and text
messages and other computer data files), because there is no
'original' in the traditional sense." Commonwealth v. Salyer,
84 Mass. App. Ct. 346, 356 n.10 (2013), citing Commonwealth v.
Amaral, 78 Mass. App. Ct. 671, 675–676 (2011); G. L. c. 233,
§ 79K.
                                                                   12


business[,] and that they were exempted from the hearsay

exclusionary rule as reliable business records."11

     The defendant's argument is correct up to a point.     To the

extent that the Wall withdrawal slips were forged, they cannot

qualify as business records made in good faith in the regular

course of business.12   See Commonwealth v. Williams, 63 Mass.

App. Ct. 615, 618-619 (2005).    However, the fact that some of

the admitted documents did not qualify as business records

within the meaning of G. L. c. 233, § 78, does not mean that

they could not be admitted on a different basis.     See Williams,

supra.    Here, as in Williams, the documents were being offered

for nonhearsay purposes; whether they fell within the ambit of

§ 78 is beside the point so long as they otherwise could be

authenticated properly.    See id. at 619.

     As far as authentication goes, Backstrom's demonstrated

knowledge of the bank's record keeping system, together with the

nature and circumstances of the withdrawal slips at issue,

     11
       The defendant argues that this issue was preserved by
various objections that touched on the application of the
business records statute. The Commonwealth counters that no
objections were raised with the specificity necessary to
preserve the issue. Finding no error, we need not resolve the
question.
     12
       Had the withdrawal slips been made out by an actual
customer, then they still, strictly speaking, would not have
been business records, because a writing received by a business
is not itself a record "made" by the business. See Wingate v.
Emery Air Freight Corp., 385 Mass. 402, 409 (1982) (Liacos, J.,
concurring).
                                                                    13


provided ample support for authenticating those documents.13       See

Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426, 435

(1990), S.C., 409 Mass. 387 (1991) ("documents were sufficiently

authenticated to be admitted to show what was on record at the

bank" where an officer of the bank provided testimony

identifying the bank's records and described their function).

See also Mass. G. Evid. § 901(a), at 333 (authentication

requirement met if testimony is "sufficient to support a finding

that the item is what the proponent claims it is").     There was

no requirement that the Commonwealth produce an eyewitness to

the creation of the records.   See Williams, supra at 619-620

(lack of direct testimony concerning the production of or

signature on a document not a bar to admissibility).     Nor was

there any requirement that the witness through whom the

documents were admitted formally be designated a keeper of the

records (a designation that would have added little to

Backstrom's demonstrated knowledge of the bank's record keeping

system).   Compare Bowles, 751 F.3d at 40; Beal Bank, SSB v.

Eurich, 444 Mass. 813, 818-819 (2005) (testimony of bank manager

provided sufficient authentication even though he lacked

"personal knowledge regarding the maintenance of the

predecessors' business records").

     13
       Further, the defendant has failed to put forward any
reason to doubt the authenticity of the records that she
challenges.
                                                                     14


    None of this is to say that the documents were introduced

in a model manner.     However, a "defendant is entitled to a fair

trial, not a perfect one."     Commonwealth v. Lodge, 431 Mass.

461, 476 (2000), citing Commonwealth v. Graves, 363 Mass. 863,

872-873 (1973).     In this regard, we note that the defendant

grossly overstates the role that the documentary evidence played

here.   For example, that the defendant used a withdrawal slip to

obtain $300 cash from Wall's checking account was independently

established by the teller's live testimony as well as by the

defendant's admissions to Backstrom (and eventually through her

trial testimony).     Moreover, her defense consistently was that

she gave the money to Wall, not that she did not take it in the

first place.

    General Laws c. 233, § 77.      The defendant's other appellate

argument is based on G. L. c. 233, § 77, an evidentiary statute

specific to bank records.    That section states that copies of

bank records

    "shall be competent evidence in all cases, equally with the
    originals thereof, if there is annexed to such copies an
    affidavit . . . stating that the affiant is the officer
    having charge of the original records, books and accounts,
    and that the copy is correct and is full so far as it
    relates to the subject matter therein mentioned."
                                                                    15


G. L. c. 233, § 77.     Because the bank records introduced here

were unaccompanied by any keeper of the records affidavit, the

defendant argues that their admission was improper.14

     This issue was not preserved at trial.    Although the

defendant raised various objections to the introduction of the

documents, at no point did she ever reference G. L. c. 233,

§ 77, or object on the ground that a required affidavit was

absent.   Our review is therefore limited to whether the

admission of the documents was error creating a substantial risk

of a miscarriage of justice.     Commonwealth v. Irene, 462 Mass.

600, 608 n.16 (2012).

     In any event, we discern no violation of the statute, much

less a substantial risk of a miscarriage of justice.    The focus

of § 77 is to ease the admission of copies of bank records by

obviating the need for the proponent of the records either to

call a live witness through whom the documents had to be

introduced or to produce the original records (as might be

deemed necessary under a strict application of the best evidence




     14
       Section 77, unlike some   other sections included within
G. L. c. 233, does not require   that the documents be submitted
to court prior to trial and be   made available for inspection.
See, e.g., G. L. c. 233, § 79.    The defendant makes no claim
that she lacked notice of what   documents the Commonwealth was
going to offer at trial.
                                                                    16


rule).15    See Mass. G. Evid. §§ 901(b)(7)(A) & 1003, at 337-338,

353 (classifying § 77 as a statute that "deal[s] with

authentication" and "equalize[s] duplicates and originals").       We

do not view the statute as providing an exclusive means of

authenticating bank records, or as precluding a party from

authenticating a bank record through a live witness.16     See Mass.

G. Evid. § 902(d), at 341-342, 345 (describing § 77 as a means

of "[s]elf-[a]uthenticating" bank records to relieve the

necessity of showing "[e]xtrinsic evidence of authenticity").

     Our analysis is not inconsistent with Irene, the principal

case upon which the defendant relies.     In that case, at issue

was a hospital report from a treating physician that included a

statement that "[t]he patient [the defendant] states that he was

minding his own business while he was in a taxicab when he got

shot."     Irene, supra at 608.   The trial judge ruled that the

hearsay statement would have to be redacted if the physician's

report were admitted pursuant to the hospital records statute,




     15
       Section 77 dates to 1885, a time when bank records were
kept by hand and producing accurate copies acceptable as
evidence may well have been a nontrivial task. See St. 1885,
§ 92.
     16
       Nor do we view the statute as setting forth the only way
that the best evidence rule can be satisfied. See note 10,
supra.
                                                                     17


G. L. c. 233, § 79.17   See Irene, supra at 608.    However, the

judge allowed in evidence an unredacted version of the report

under the business records statute, G. L. c. 233, § 78.     See

Irene, supra at 606.    The Supreme Judicial Court ruled that this

was improper.   Id. at 616.   The court reasoned that where the

Legislature had placed specific limitations on the introduction

of hearsay contained in hospital records, the Commonwealth was

not free to avoid those limitations by recharacterizing the

hospital records as general business records.      Id. at 615-616.

The defendant before us argues that the bank records statute,

G. L. c. 233, § 77, is a specific statute analogous to the

hospital records statute, and that the Commonwealth cannot avoid

complying with it by having the documents admitted pursuant to

the general business records statute.   This analogy breaks down

under scrutiny.

     The concern in Irene was over hearsay, not authentication.

With the Legislature having addressed the admissibility of

hearsay contained in hospital records in a particular fashion,

the court in effect ruled that § 79 occupied the field to the

exclusion of other hearsay statutes.    See Irene, 462 Mass. at

612-614 (explaining how § 79 addressed concerns different from

other hearsay exceptions, such as business records).     Section

     17
       General Laws c. 233, § 79, allows the admission of
hospital records only "so far as such records relate to the
treatment and medical history of such cases."
                                                                  18


77, by contrast, does not address hearsay issues and instead

serves a more limited function than § 79.18   We do not view § 77

as precluding the admission of bank records through other means.

     Sufficiency.   The defendant additionally argues that the

Commonwealth's evidence that she committed a larceny against

Wall was legally insufficient in one respect.   In assessing such

a claim, we consider "whether, after viewing the evidence in the

light most favorable to the prosecution, 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 from Jackson v. Virginia, 443 U.S. 307, 318-

319 (1979).

     To make out a case of larceny, the Commonwealth must prove

inter alia that a defendant possessed "the specific intent to

deprive the person of the property permanently."   Commonwealth

v. Donovan, 395 Mass. 20, 25-26 (1985), quoting from

Commonwealth v. Johnson, 379 Mass. 177, 181 (1979).    Because

Wall had died before trial, she was not available to testify to


     18
       As the Commonwealth acknowledges, to the extent that a
bank record included hearsay, § 77 would not itself provide an
exception allowing such hearsay to be admitted. Far from
addressing the admissibility of bank records in a comprehensive
fashion, § 77 is not even the only evidentiary statute that
specifically references such records. See G. L. c. 233, § 77A
(applicable to certain bank statements of account); G. L.
c. 233, § 79A (applicable to copies of bank records in a similar
fashion as § 77). The defendant has not touched on either of
these statutes.
                                                                    19


whether she received the $1,000 from the June 5, 2006,

withdrawal or the $300 from the July 21, 2006, withdrawal.       The

defendant argues that, absent such affirmative proof (and in the

face of her claim that Wall eventually did receive the money),

the evidence was legally insufficient that she permanently

intended to deprive Wall of the money.     This argument requires

little discussion.     There was ample circumstantial evidence that

would allow rational jurors to conclude, beyond a reasonable

doubt, that the defendant intended to steal the money she took

from Wall's account.    For example, with regard to the July 21,

2006, incident, there was evidence that the defendant had forged

Wall's signature, lied to Backstrom about doing so, and

deposited $200 cash into her own account directly after

receiving the $300 cash from Wall's.     From such evidence, a

rational trier of fact could have drawn the reasonable inference

that the defendant intended to permanently deprive Wall of the

money she withdrew.

                                     Judgments affirmed.
