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Commonwealth v. Driscoll

Appeals Court of Massachusetts, Suffolk

May 9, 2017


          Heard: January 6, 2017.

         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.

          Present: Kafker, C.J., Hanlon, & Agnes, JJ.

          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, and attempted larceny of property with a value greater than $250 in violation of G. L. c. 274, § 6.


         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 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.

         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.


         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 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 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." Wingatev.Emery Air Freight Corp., 385 Mass. 402, 406 (1982). See Mass. G. Evid. ยง 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 ...

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