NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

19-P-1187                                            Appeals Court

               COMMONWEALTH    vs.   MARK W. SARGENT.


                            No. 19-P-1187.

            Bristol.       May 5, 2020. - July 10, 2020.

            Present:     Sacks, Singh, & Wendlandt, JJ.


Practice, Criminal, Revocation of probation. Due Process of
     Law, Probation revocation. Evidence, Authentication.
     Burning of Property. Burning a Dwelling House.


     Indictments found and returned in the Superior Court
Department on March 1, 2013.

     A proceeding for revocation of probation was heard by
Thomas F. McGuire, Jr., J.


     Brad P. Bennion for the defendant.
     Robert P. Kidd, Assistant District Attorney, for the
Commonwealth


    WENDLANDT, J.      The evidentiary principle of authentication

requires the proponent of evidence to provide sufficient indicia

that the evidence is what it purports to be.     See Mass. G. Evid.

§ 901(a) (2020).    We address in this appeal the intersection

between authentication of a writing and the requirement in
                                                                    2


probation revocation hearings that, consistent with due process,

the evidentiary basis for a revocation decision be reliable.      On

appeal, the defendant, Mark W. Sargent, contends that, in order

to ensure the reliability that due process requires, formal

authentication procedures must be followed in a probation

revocation proceeding.   We disagree, and concluding that his

other arguments lack merit, we affirm.

     Background.   In February 2014, the defendant pleaded guilty

to charges stemming from arson of a building in 2013 (2013

arson).1   After a term of incarceration, the defendant was placed

on probation in October 2015.   In October 2017, while still on

probation, new charges were brought against the defendant based

on arson of a building in Brockton (2017 arson).   On the basis

of the new charges, the probation department issued a notice of

surrender, alleging the defendant had violated the condition of

his probation requiring him to "obey all local, [S]tate, and

[F]ederal laws and all court orders."

     Based on the evidence presented at the probation revocation

hearing, the judge could have found the following regarding the

2017 arson.   In the early morning hours of October 4, 2017, the

defendant set fire to a building, largely comprised of brick and


     1 The charges were burning of a building, pursuant to G. L.
c. 266, § 2; arson of a dwelling, pursuant to G. L. c. 266, § 1;
and six counts of burning personal property, pursuant to G. L.
c. 266, § 5.
                                                                   3


steel but including a wooden staircase.   Surveillance videos

showed the defendant2 arriving at the building in a dark-colored

sport utility vehicle (SUV) at around 3:30 A.M.   The defendant,

who wore distinctive black and white sneakers, got out of the

SUV and poured accelerant from a container onto the building's

wooden staircase.    He returned to the SUV and drove it out of

the camera's view.   Returning on foot to the staircase, he lit

the accelerant, thereby engulfing the stairs in flames.

     Upon viewing the videos, State police Trooper Michael Fagan

contacted State police Trooper Eric Derosiers, who was

investigating the defendant; Trooper Derosiers, in turn, learned

that, just a few hours before the arson, the defendant had been

seen at a gasoline station located across the street from the

used car dealership where he worked.3   Surveillance videos from

the gasoline station showed the defendant driving a Toyota RAV 4

-- a dark-colored SUV similar to the one depicted in the

surveillance video from the site of the 2017 arson.   At the

gasoline station, the defendant filled a container with gasoline




     2 At the hearing, State police Trooper Michael Fagan, who
was familiar with the defendant from prior investigations,
identified the defendant as the individual in the video.

     3 A law enforcement team had already been engaged in a
general investigation of multiple fires set in similar patterns,
for which the defendant was a person of interest.
                                                                     4


and placed it in the vehicle.    The defendant wore the same

distinctive black and white sneakers.

    At the used car dealership, Trooper Derosiers observed a

line of vehicles, each of which had condensation on the hood and

windshield except for one -- a dark-colored Toyota RAV 4.      The

hood of the Toyota RAV 4 was warm, indicating it had been used

recently.    The defendant's supervisor told Trooper Derosiers

that when the defendant arrived for work that day, he requested

that the Toyota RAV 4 be detailed and cleaned.    The defendant

was arrested.   He wore the same distinctive black and white

sneakers.

    During the police interview following his arrest, the

defendant told Trooper Derosiers that "when it was all over, he

wanted to come out and help counsel kids on fire setting and not

to do it."   The defendant "expressed being angry with his wife

and that his method of relieving that was burning houses down."

The defendant's probation file included a letter under the

defendant's name, addressed to the defendant's former probation

officer and referring to both the 2013 arson and the 2017 arson.

Further details of the letter are discussed infra.

    A Superior Court judge found the defendant in violation of

probation, revoked his probation, and sentenced him to State

prison.
                                                                    5


    Discussion.    "In a probation revocation hearing, the issue

to be determined is not guilt beyond a reasonable doubt but,

rather, whether the probationer more likely than not violated

the conditions of his probation."     Commonwealth v. Kelsey, 464

Mass. 315, 324 (2013).   Thus, we uphold a judge's finding of a

probation violation if it is supported by a preponderance of the

evidence.   See id. at 324-325; Commonwealth v. Hill, 52 Mass.

App. Ct. 147, 154 (2001).   The decision to revoke probation,

based on a violation shown by a preponderance of the evidence,

lies within the discretion of the judge.    See Commonwealth v.

Durling, 407 Mass. 108, 111 (1990).

    1.   Authentication of handwritten letter.    At the

revocation hearing, the defendant's current probation officer

offered a letter found in the defendant's probation file.     On

its face, the letter appeared to be sent by the defendant while

incarcerated on the 2017 arson charges and awaiting the

revocation hearing.   It is addressed to his then-probation

officer, John DeJesus.   In the letter, the defendant discussed

his involvement in the 2013 arson and the more recent 2017 arson

of the "brick & steel" building.    The return address on the

envelope listed Plymouth County Correctional Facility, where the

defendant was then being held, alongside his full name,

identification number, and unit number.     The defendant argues

that due process required that the judge authenticate the letter
                                                                      6


before admitting it in evidence, either by comparing it to a

known handwriting sample of the defendant or by allowing a

witness familiar with the defendant's handwriting to testify to

its authenticity.   Instead, over the defendant's objection, the

judge simply admitted it "for purposes of a surrender probation

hearing."

    Where evidence is not authentic,4 it is irrelevant, and

thus, it cannot be a reliable basis for revoking probation.     See

Commonwealth v. Meola, 95 Mass. App. Ct. 303, 307 (2019)

("Authentication represents a special aspect of relevancy in

that evidence cannot have a tendency to make the existence of a

disputed fact more or less likely if the evidence is not that

which its proponent claims" [quotation omitted]).   Contrary to

the defendant's contention, however, it does not follow that

formal procedures for authenticating evidence must be followed

in probation revocation hearings.   To the contrary, "standard

evidentiary rules do not apply to probation revocation




    4  Authentication is a preliminary determination of fact,
which a judge must make prior to admitting evidence. Mass. G.
Evid. §§ 104(b), 901(a) (2020). See Gorton v. Hadsell, 9 Cush.
508, 511 (1852) ("It is also [the] province [of the judge] to
decide any preliminary questions of fact, however intricate, the
solution of which may be necessary to enable him to determine
the other question of admissibility"). In particular, a judge
determines whether there is sufficient indicia that, if
believed, "would allow a reasonable [fact finder] to conclude
that [the] evidence is what its proponent claims it to be."
Commonwealth v. Purdy, 459 Mass. 442, 449 (2011).
                                                                        7


hearings."   Durling, 407 Mass. at 117.    While due process

necessitates certain minimal requirements at probation

revocation proceedings,5 it does not "require that the

[government's] significant interests in informality,

flexibility, and economy [at such proceedings] . . . be

sacrificed" (citation omitted).   Id. at 113.      In determining the

requirements of due process in connection with the evidence used

at probation revocation hearings, the Supreme Judicial Court has

identified "[t]wo overriding principles":     first, "revocation

proceedings must be flexible in nature," and second, "all

reliable evidence should be considered."     Id. at 114.    Both

principles "are furthered by not imposing strict evidentiary

rules on probation revocation hearings."     Id.   The probation

revocation "process should be flexible enough to consider

evidence including letters, affidavits, and other material that

would not be admissible in an adversary criminal trial."

Morrissey v. Brewer, 408 U.S. 471, 489 (1972).      The "preeminent

concern with respect to the evidence presented and considered at

revocation proceedings is its reliability."     Commonwealth v.

Thissell, 457 Mass. 191, 196 (2010).      Cf. Durling, supra at 117-

118 ("The proper focus of inquiry in . . . situations [where the

Commonwealth seeks to rely on evidence not subject to cross-


     5 See Durling, 407 Mass. at 113 (listing minimum due process
requirements).
                                                                   8


examination] is the reliability of the evidence presented. . . .

When hearsay evidence is reliable . . . it can be the basis of a

revocation").

     In assessing the defendant's claim that procedural

formality is required, we are guided by the Supreme Judicial

Court's analysis in Thissell.   In that case, as part of his

probation conditions, the probationer was required to wear a

global positioning system (GPS) device and stay away from

certain "exclusion zones" surrounding his wife's home and place

of employment.   Thissell, 457 Mass. at 192.   Although the

probation department did not formally "authenticat[e] . . . the

generative process that created the [GPS] records," the court

held that the GPS data bore sufficient indicia of reliability6

"to serve as the basis of the defendant's revocation consistent

with the requirements of due process."   Id. at 197 & n.13 ("The

process by which the GPS records at issue here were created is

not fully apparent . . . .   In any event . . . we conclude that

the judge did not err in relying on them in this proceeding

. . .").7


     6 In particular, the court relied on the level of factual
detail of the GPS records, how close in time they were made to
the events in question, and the reliance by the probation
department on such records to track probationers. See Thissell,
457 Mass. at 197 n.13 & 198.

     7 Similarly, the United States Court of Appeals for the
Ninth Circuit held, in United States v. Miller, 514 F.2d 41, 43
                                                                    9


    Similarly, in the present case, due process does not

require formal processes of authenticating the handwritten

letter, such as by comparing a known writing sample with the

letter or testimony by someone familiar with the defendant's

writing.   The letter bore sufficient indicia of reliability to

permit reliance on the letter in connection with revoking the

defendant's probation.   The defendant's current probation

officer testified that he found the original letter in the

defendant's probation file.    The letter, signed in the

defendant's name, was addressed to the defendant's original

probation officer.   The letter discussed by name the defendant's

appointed counsel, and the 2013 arson.     It also noted that the

2017 arson -- which led to the revocation hearing -- was of a

"brick & steel" building.     It also referred to a specific

counselor who had been assigned to him.     In the file, the letter

was accompanied by an envelope with a return address of Plymouth

County Correctional Facility, followed by the defendant's full

name, identification number, and unit number.    The envelope was

postmarked April 2018, during which time the defendant was being



(9th Cir. 1975), that copies of State court criminal records,
even though not authenticated, were properly relied on to revoke
the defendant's probation. The probation officer testified to
making the copies and to obtaining the information from court
files. Id. at 42. "The unrefuted evidence presented at the
hearing . . . was reliable and obviously sufficient to satisfy
the court that appellant had violated the terms of his
probation." Id.
                                                                  10


held at Plymouth County Correctional Facility.   Given these

circumstances, the judge did not err in finding that the letter

was reliable, and that the lack of other formal authentication

processes for identifying the defendant's handwriting did not

deprive the defendant of due process.8

     2.   Preponderance of the evidence.   The defendant also

challenges the sufficiency of the evidence that he violated the

terms of his probation by committing the crimes of burning a

building and personal property.   At a probation revocation

hearing, the Commonwealth must prove by a preponderance of the

evidence that the defendant violated a condition of probation.

See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995).

     The evidence and reasonable inferences therefrom supported

the following.   Hours before the building fire, the defendant

borrowed a Toyota RAV 4 from the car dealership where he was

employed, drove it to the gasoline station across the street,




     8 Moreover, contrary to the defendant's contention, a
handwriting comparison is not the only method of authenticating
a letter; instead, it may be authenticated through "distinctive
characteristics," including "[t]he appearance, contents,
substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the
circumstances." Mass. G. Evid. § 901(b)(4) (2020). See
Commonwealth v. Siny Van Tran, 460 Mass. 535, 546 (2011); Purdy,
459 Mass. at 449-450 (relying on confirming circumstances to
authenticate handwritten letter identifying defendant as
author). Accordingly, the letter was "admissible under standard
evidentiary rules, [and thus] it is presumptively reliable."
Thissell, 457 Mass. at 196.
                                                                    11


and filled a container with gasoline.     Around 3:30 A.M., he

arrived at the crime scene and poured gasoline from the

container onto the wooden staircase.      He moved the SUV out of

harm's way and then lit the fire.   Upon returning to the

dealership, he asked that the SUV be detailed and cleaned in an

attempt to cover up the arson.   After his arrest, he expressed

remorse, indicating that he would "help counsel kids on fire

setting and not to do it."   While incarcerated and awaiting his

probation revocation hearing, he wrote a letter to his probation

officer seeking help and minimizing the 2017 arson.     In short,

there was ample evidence that the defendant "more likely than

not violated the conditions of his probation" by committing the

2017 arson.   Kelsey, 464 Mass. at 324.

                                    Order revoking probation
                                      affirmed.
