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revision and are superseded by the advance sheets and bound 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.