Opinion
13-P-1802
04-08-2015
COMMONWEALTH v. TIMOTHY J. BOLLIN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Timothy J. Bollin, was convicted of larceny over $250 by a single scheme after he falsified returns of merchandise at a store in which he worked. On appeal, he argues, inter alia, that receipts of the sales and purported returns were hearsay and should not have been admitted as evidence. We affirm.
Background. The defendant was employed by Building #19, a retail store, in Weymouth. The store created receipts when customers purchased or returned items. Three return receipts from 2010, dated September 21, October 11, and November 8, showed returns of merchandise with values of ninety-five dollars, eighty-four dollars, and $148, respectively. The return receipts contained the defendant's employee identification number printed at the top. All three customers testified at a jury-waived trial on February 5, 2013, that they did not return the items on the dates indicated on the receipts, and that the signatures on the return receipts were not theirs. The trial judge denied the defendant's motion for a required finding and found him guilty. The defendant was sentenced, and this appeal followed.
Cents on the dollar are omitted here.
The first and third customers testified that they did not return their items at all. The second customer returned her item but not on the date indicated on the return receipt.
Discussion. 1. Hearsay. The defendant argues that the judge erroneously admitted all the receipts because they were hearsay. This argument is meritless because the receipts were admissible.
The defendant objected to the receipts at trial, but not on hearsay grounds. The argument he raises on appeal was not raised below, and we review any error only for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
"Because computer-generated records, by definition, do not contain a statement from a person, they do not necessarily implicate hearsay concerns." Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010). In contrast, records that are statements created by a person and stored on a computer can implicate hearsay concerns. See ibid.
Here, the differences are irrelevant. The receipts printed by the cash register were generated by a computer, not a person, and are not hearsay. The defendant fares no better even if the receipts are considered human-created records stored on a computer because they would be admissions of a party opponent.
The Commonwealth also laid a proper foundation for the receipts by presenting testimony from each customer regarding the purchase, the information on the receipts, and the fact that the customer did not return the item as indicated on the receipt.
If the receipts are viewed as human-created records stored on a computer, they could be admitted based on two reasons. First, they would be admissions of a party opponent because the defendant created the records. See Mass. G. Evid. § 801(d)(2)(A) (2014). Second, even if the defendant did not create the receipts, at least the return receipts could be admitted as adopted admissions because the defendant's signature appeared on the return receipts (but not the sales receipts). See Mass. G. Evid. § 801(d)(2)(B) (2014). Other employee documents bearing the defendant's signature were entered in evidence and could provide a comparison.
The receipts also would have been admissible under the hearsay exception for business records, G. L. c. 233, § 78, as all of the requirements were satisfied, including a proper foundation and good faith. See Commonwealth v. Irene, 462 Mass. 600, 610-611 (2012). Furthermore, the judge could have properly admitted the receipts as nonhearsay. The receipts were not proof of the truth of the matter asserted (that the items were returned), but were evidence that the defendant claimed that the returns occurred, despite testimony that the returns did not occur. See Commonwealth v. Brum, 438 Mass. 103, 116 (2002).
Other evidence showed that the defendant processed the false returns. The defendant lied to a police officer when he said that a customer bought a mattress, telephoned his wife, and immediately returned the item. This customer, who had been divorced for many years, testified that he did not telephone his ex-wife and still owned the mattress. An employee who worked as a loss prevention specialist found that the defendant processed about twenty-six returns within two hours, which was unusual. An assistant manager also testified that the defendant once asked her to authorize a return without following the procedure of showing her the returned merchandise.
2. Ineffective assistance of counsel. The defendant argues that defense counsel's failure to object to the receipts on hearsay grounds was ineffective. Counsel was not ineffective, as the receipts were admissible.
A claim of ineffective assistance of counsel should usually be raised in a new trial motion and not, as here, argued for the first time on appeal. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006).
3. Testimony of employee. Lastly, the defendant argues that the judge erred in allowing the testimony of Allen Bishop, a loss prevention manager and custodian of records for the store, because Bishop testified to cash register procedures yet allegedly had no personal knowledge. The testimony was proper.
Witness testimony must be based on personal knowledge. Mass. G. Evid. § 602 (2014). Inferences drawn by a fact finder need only be reasonable and possible, not necessary or inescapable. Commonwealth v. Batista, 53 Mass. App. Ct. 642, 646 (2002).
Here, Bishop began working for Building #19 on January 26, 2011, which was after the defendant processed the false returns in 2010. Bishop testified to the defendant's unique four-digit employee identification number based on his knowledge of store records. Bishop also testified that the store practice, since he began his employment, was that a cashier would have to enter an identification number to operate a register. He testified that the defendant's identification number appeared on the receipts at issue.
Bishop's testimony was based on personal knowledge. See Mass. G. Evid. § 602 (2014). The judge, as the fact finder, could draw reasonable inferences that the practices that Bishop described were in place during the defendant's period of employment, and that the defendant's identification number would not have appeared on the receipts if the defendant had not operated the cash register. See Commonwealth v. Batista, 53 Mass. App. Ct. at 646. Bishop's testimony was properly admitted.
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Judgment affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 8, 2015.