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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.
