Commonwealth v. Nichole M. Mathieson.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-122

COMMONWEALTH

vs.

NICHOLE M. MATHIESON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court judge convicted the defendant of uttering

or passing a false lottery ticket, in violation of G. L. c. 10,

§ 30.1 In proving its case, the Commonwealth primarily relied on

Massachusetts State Lottery records (lottery records), which

were admitted in evidence over the defendant's objection through

the testimony of a State Lottery compliance analyst. We

conclude that the cumulative errors at trial, including the

Commonwealth's failure to authenticate the lottery records,

resulted in an unfair trial for the defendant.

1The judge entered a required finding of not guilty on the
charge of larceny from a person, pursuant to G. L. c. 266, § 25
(b).
Accordingly, we vacate the judgment and set aside the

finding. Although the conviction must be vacated, the

Commonwealth's evidence was sufficient to withstand a motion for

a required finding of not guilty and, therefore, the

Commonwealth may retry the defendant if it wishes to do so.

Background. Viewing the evidence in the light most

favorable to the Commonwealth, and drawing all reasonable

inferences in the Commonwealth's favor, the judge could have

found the following facts. See Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979). On May 28, 2022, the victims, an

aunt and nephew, jointly purchased a ten dollar scratch off

lottery ticket at a Cumberland Farms store in Athol. The ticket

was a winning ticket worth one thousand dollars.2

The aunt placed the scratched-off ticket on top of her

microwave for "safekeeping" until her nephew had time to cash

it. Unbeknownst to either victim, another family member took a

picture of the winning ticket and posted it on a lottery

Facebook page used for keeping track of which stores sold

winning lottery tickets. A couple of days later, the nephew

attempted to cash the lottery ticket at a store in Worcester,

but he was unable to get the money from the ticket. The store

2 Photographs of the ticket were admitted in evidence.

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kept the lottery ticket and provided the nephew with a photocopy

so that he could follow up with lottery officials, which he did.

At the bench trial, over the defendant's objection, a

compliance analyst employed by the State Lottery to investigate

fraud involving lottery products testified. He explained that

his investigation began when the Worcester regional office

contacted him about a ticket presented for payment that had been

validated within the lottery system as "previously paid." The

analyst was contacted to determine who had cashed the ticket

prior to the nephew submitting a claim for it. The analyst

spoke to customer service staff and obtained the "game

book/ticket number," which was located on the back of the ticket

at issue. The game number is used to "track instant tickets in

the lottery" and the ticket number identifies the "individual

book of [a] particular game."

The analyst then ran a search on the ticket through the

lottery records to determine who had cashed the ticket. During

his testimony, the analyst identified a report and he described

the information therein as a "search in our back office system

which tracks all transactions that occur in the lottery's mobile

cashing app." The defendant continued to object and,

ultimately, the judge admitted the report in evidence after

concluding that it was a business record and, as such, was an

exception to the rule against hearsay. Thereafter, the analyst

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testified that he conducted a search of lottery records to show

"every time that the ticket was scanned on the lottery's mobile

cloud." He explained that the records also include the name of

the person or the player profile of the person who initiated the

scans.

The analyst then identified another document, which was

generated by a different employee of the State Lottery, that

showed every lottery ticket from a particular game book that was

cashed, and the details about when and where it was cashed. The

analyst ran that same search himself, but he was not the one who

generated the document that was introduced at trial. From this

document, the analyst testified, again over the defendant's

objection, that the victims' ticket was paid by the lottery on

May 28, 2022. The ticket was cashed "on [the lottery's] mobile

app." The judge admitted this document in evidence as a

business record as well.

The analyst identified two additional documents: the

defendant's player profile page and claim history page. The

profile document showed the defendant's player information that

she used to register for a lottery account, including

demographic information such as her name, date of birth, and

social security number. The claim history document showed a

query of claims during a particular time period for a specific

player's account -- it showed the defendant's account activity

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from May 29, 2022, to July 16, 2022. The analyst testified that

the defendant's account was used to scan the victims' lottery

ticket during that time frame. The relevant player profile and

claim history records also were admitted in evidence over the

defendant's objection.

Massachusetts State police Trooper Keith Segee also

testified. He interviewed the defendant and asked her about

claims made on her lottery mobile application. The defendant

acknowledged that she had cashed the ticket in question using

her mobile application, but asserted that she had won the ticket

in a lottery game on Facebook and identified the person who ran

the game. Trooper Segee relayed what the defendant told him

about the game as follows:

"she played a lottery game and she won it in like a raffle
or -- an online, basically, Facebook: you would buy a
ticket to the specific -- and then a winning number is
drawn, like a number is picked. And she received a photo
of the ticket on Facebook messenger from Sonia Seveira."

The defendant attempted to show Trooper Segee the conversations

she had with Seveira on Facebook messenger, but Seveira's

responses were not visible. The defendant said that it appeared

as if Seveira had "blocked" her. Over objection, Trooper Segee

opined that the defendant had not received the ticket from

Seveira.

Trooper Segee then testified to his interview with Seveira,

which was conducted by himself and another State police trooper;

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Seveira denied that she conducted a lottery game as the

defendant had claimed. The troopers looked at Seveira's

Facebook profile page on her cellular telephone. Trooper Segee

testified that he and the other trooper believed Seveira was

telling the truth and that she had not conducted an online

lottery game or raffle. In overruling the defendant's objection

to this testimony, the judge stated,

"I'm just going to state that you don't have to be an
expert to testify whether or not you think someone was
lying to you, as that is an ability that is innately human.
I would suggest any adult human being, to some degree,
possess [sic] the capacity to know when someone is lying to
them."

The defendant moved for a required finding of not guilty on

all the charges. The judge allowed the defendant's motion as to

larceny from a person but denied the motion as to uttering or

passing a false lottery ticket.

The defendant then testified on her own behalf and repeated

what she had told Trooper Segee: that she participated in a

raffle conducted on Seveira's Facebook page by purchasing a

"spot," "won" the winning ticket, and then cashed it. The judge

found the defendant not credible and determined "her explanation

of events to be implausible." He concluded that the defendant,

by "cashing the ticket on the mobile app[,] represented to the

lottery that she was the lawful owner of the lottery ticket"

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when, in fact, she was not, and found her guilty of uttering or

passing a false lottery ticket.

Discussion. 1. Standard of review. Here, "[a]s the

defendant objected to the admission of [the lottery records] at

trial, we review for prejudicial error." Commonwealth v.

Tavares, 482 Mass. 694, 712 (2019). "We must first determine

whether the judge committed an error of law or an abuse of

discretion." Id. "If we find such an error, we then ask

whether it was prejudicial." Id. "An error is prejudicial if

we cannot find with fair assurance that it did not substantially

sway[] the verdict" (citation omitted). Commonwealth v.

Palermo, 482 Mass. 620, 625 (2019). For the reasons we discuss

below, the cumulative errors at trial were prejudicial and

warrant a new trial.

2. Cumulative errors. To admit business records at a

trial, the records must first be authenticated "by a witness who

is familiar with them" (citation omitted). Commonwealth v.

Driscoll, 91 Mass. App. Ct. 474, 478 (2017).3 See Commonwealth

v. Purdy, 459 Mass. 442, 447 (2011) (authentication as condition

precedent to admissibility). Very often, this witness is a

3 Alternatively, a business record can be authenticated by
an affidavit pursuant to G. L. c. 233, § 79J. Here, the
prosecutor did not present an affidavit to the judge nor did the
prosecutor seek to admit an affidavit in evidence. Therefore,
the lottery records were not authenticated pursuant to § 79J.

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keeper of records, for instance, or a person who can affirm that

the records are routinely made by someone who has "a business

duty to make accurate entries and are relied on in the course of

doing business" (quotation and citation omitted). Driscoll,

supra at 479. The manner of authentication must be "sufficient

to provide the necessary indicia of genuineness." Id. at 478,

citing Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426,

435 (1990). See Commonwealth v. Lehan, 100 Mass. App. Ct. 246,

257 (2021) (witness did not sufficiently authenticate records

where he simply received records during his investigation and

"had almost no personal experience in reviewing" them).

Once properly authenticated, business records must meet the

hearsay exception requirements set forth in G. L. c. 233, § 78,

which states,

"An entry . . . , or a writing or record, . . . made
as a memorandum or record of any act, transaction,
occurrence or event, shall not be inadmissible in any
civil or criminal proceeding as evidence of the facts
therein stated . . . because it is hearsay . . . if
the court finds that the entry, writing or record was
made in good faith in the regular course of business
and before the beginning of the civil or criminal
proceeding aforesaid and that it was the regular
course of such business to make such memorandum or
record . . . ."

See Mass. G. Evid. § 803(6)(A) (2024). "Unless stipulated by

opposing counsel, that foundation must be laid under § 78 before

the judge can make the necessary finding that the records were

'made in good faith in the regular course of business and before

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the beginning of the . . . criminal proceeding.'" Lehan, 100

Mass. App. Ct. at 255, quoting G. L. c. 233, § 78. Generally,

this foundation is made by the person who made the record

offered or by someone "who has personal knowledge of the facts

stated in the . . . record offered." Commonwealth v. Bin, 480

Mass. 665, 677 (2018), citing G. L. c. 233, § 78. See

Commonwealth v. Andre, 484 Mass. 403, 409-412 (2020) (business

record entries "are routinely made by those charged with the

responsibility of making accurate entries and are relied on in

the course of doing business" [citation omitted]). See also

Mass. G. Evid. § 803(6)(A).

Here, the defendant argues that the lottery records were

not properly authenticated, and therefore should not have been

admitted. She also asserts that the Commonwealth failed to

provide the foundation necessary to admit the lottery records

pursuant to the business records exception. We conclude that

the lottery records were not properly authenticated nor was

there a proper foundation that they were business records.

Thus, the lottery records should not have been admitted.

The analyst testified that he did a "search in our back

office system which tracks all transactions that occur in the

lottery's mobile cashing app." The defendant objected,

specifically noting that the analyst did not provide any

testimony as to "his expertise for getting into the system" or

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"how these records were generated." Although the prosecutor

argued in response to the objection that the records were

"normally kept" in the regular course of business and only

"searched for purposes of this investigation," the analyst never

testified to such information. Here, as in Lehan, 100 Mass.

App. Ct. at 255-256, the analyst testified to the searches he

conducted within the lottery system, but never testified that

the records were true and accurate, or that they were complete.

No other witness testified about the records.

In sum, no witness who had personal knowledge as to how the

lottery records were "made" -- that is, generated or created --

testified.4 The analyst simply stated that he took the lottery

ticket number and did "a query of that ticket number in our

system to determine who cashed it." With more information, such

as further inquiry into the analyst's specific role in this

investigation regarding specific record-keeping and creation, we

might be satisfied that the lottery records were properly

4 We acknowledge that it is possible that the lottery
records were computer generated and thus not hearsay documents.
See Lehan, 100 Mass. App. Ct. at 256 & n.7. However, the record
is devoid of information as to how the information contained
within the documents was generated. Compare Commonwealth v.
Davis, 487 Mass. 448, 465 (2021) ("Computer-generated records
are created solely by the mechanical operation of a computer and
do not require human participation") with Commonwealth v. Brea,
488 Mass. 150, 160 (2021) ("Computer-stored records merely store
or maintain the statements and assertions of a human being"
[quotation and citation omitted]).

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authenticated and admitted as business records. However, the

prosecutor failed to ask questions to clearly identify the

analyst's credentials and knowledge. The record, as submitted,

does not clearly establish these requirements.

In addition to the authentication problems, we note

additional errors that contributed to the defendant's failure to

receive a fair trial. The defendant asserts that the judge

erroneously admitted testimony from Trooper Segee after the

troopers viewed part of her and Seveira's Facebook messages and

Seveira's Facebook page. As noted above, Trooper Segee

testified to the credibility of the defendant and Seveira; he

opined that the defendant "did not receive the ticket from

Seveira" and that Seveira "was telling the truth." The judge

overruled the defendant's objection, maintaining that it is an

"innately human" ability to know whether someone is lying to

them.

"Evaluations of credibility are, of course, within the

exclusive province of the trier of fact" (citation omitted).

Commonwealth v. Powers, 36 Mass. App. Ct. 65, 68 (1994). As

such, the judge's statements were contrary to the general rule

that "[n]o witness, expert or not, may offer an opinion as to

the credibility of another witness." Commonwealth v. Polk, 462

Mass. 23, 36 (2012). See Commonwealth v. Montanino, 409 Mass.

500, 504 (1991), overruled on other grounds by Commonwealth v.

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King, 445 Mass. 217 (2005) ("long-standing rule that witnesses

may not offer their opinions regarding the credibility of

another witness"). Accordingly, it was error for the judge to

allow Trooper Segee to opine as to the credibility of the

defendant and Seveira.

Additionally, as with business records, Facebook pages must

also be properly authenticated and, if admitted for their truth,

must fall within an exception to the hearsay rule. Here, the

Facebook pages and the statements contained within them were not

properly authenticated.

Ultimately, the admission of the lottery records and the

testimony regarding them, combined with the improperly admitted

testimony and credibility determinations regarding the Facebook

pages, were prejudicial to the defendant. See Lehan, 100 Mass.

App. Ct. at 258. In these circumstances, the judgment must be

vacated and the finding set aside.

3. Sufficiency of the evidence. The defendant also

contends that the judge erred in denying her motion for a

required finding of not guilty because there was insufficient

evidence to prove that the defendant intentionally uttered or

passed a false lottery ticket or that she falsely made, altered,

forged, uttered, passed, or counterfeited the lottery ticket

with intent to defraud. We disagree.

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We review the defendant's claim to determine "whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Latimore, 378 Mass. at 677, citing Jackson v. Virginia, 443 U.S.

307, 319 (1979). While we conclude that the lottery records and

testimony from the analyst were erroneously admitted, we

consider them in the analysis of the sufficiency of the

evidence. See Commonwealth v. Sepheus, 468 Mass. 160, 164

(2014); Commonwealth v. Bacigalupo, 455 Mass. 485, 490 (2009)

("Ordinarily, in determining the sufficiency of the evidence, we

include evidence improperly admitted"). Based on the evidence,

in the light most favorable to the Commonwealth, we conclude

that there was sufficient evidence on the elements of uttering

or passing a false lottery ticket.

Judgment vacated.

Finding set aside.

By the Court (Vuono,
Brennan & D'Angelo, JJ.5),

Clerk

Entered: May 6, 2025.

5 The panelists are listed in order of seniority.

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