Heard: January 6, 2017.
received and sworn to in the West Roxbury Division of the
Boston Municipal Court Department on May 7, 2014.
case was tried before Paul J. McManus, J.
M. Unger for the defendant.
Adrian Bispham, Assistant District Attorney, for the
Present: Kafker, C.J., Hanlon, & Agnes, JJ.
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.
jury could have found the following facts based on the
evidence presented at trial. 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."
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.
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" with a value of $5, 700.
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.
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.
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." 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.
Business records exception.
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." "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. § 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