COMMONWEALTH vs. GERARDO LOZA, JR.

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
25-P-1186
COMMONWEALTH
vs.
GERARDO LOZA, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Gerardo Loza, Jr., appeals from an order of
a District Court judge revoking his probation. After a hearing,
the judge found by a preponderance of the evidence that the
defendant had violated the conditions of his probation by
violating the criminal laws. The defendant argues that the
judge improperly admitted in evidence exhibit 5, a printout of
his driver history compiled by the registry of motor vehicles
(RMV) and contained in the criminal justice information system
(CJIS) database, see G. L. c. 6, § 167A (c). The defendant
contends that exhibit 5 contained inadmissible hearsay and its
admission violated his due process rights because no CJIS
employee testified to explain its meaning. Because the judge

2
did not abuse his discretion in concluding that the hearsay was
substantially reliable, we affirm.
Background. On July 10, 2024, in the Chelsea District
Court, the defendant admitted to sufficient facts for findings
of guilty on charges of operating a motor vehicle under the
influence of intoxicating liquor (OUI), G. L. c. 90,
§ 24 (1) (a) (1); reckless operation of a motor vehicle, G. L.
c. 90, § 24 (2) (a); and leaving the scene of property damage,
G. L. c. 90, § 24 (2) (a) (collectively, Chelsea charges). The
Chelsea charges were continued without findings for eighteen
months, during which the defendant was placed on probation with
conditions including a forty-five day loss of license and that
he obey all State laws.
On July 18, 2024, Bedford police Sergeant Jared Weisenborn
saw a red pickup truck being driven on a public way. Its driver
was holding a cell phone. In the CJIS database, Sergeant
Weisenborn checked the truck's registration and learned that the
truck was overdue for a safety inspection. Sergeant Weisenborn
stopped the truck and explained the reason for the stop to the
driver, who was the defendant. The defendant admitted he had
been looking at his cell phone's global positioning system
display. Asked for his license and registration, the defendant
produced the truck's registration. The defendant said he did

3
not have a driver's license and that his license had been
suspended. The defendant did not have any identification on
him, but related his name, date of birth, and address to
Sergeant Weisenborn, who checked the CJIS database and found RMV
records that matched that information. The RMV records also
included a license photograph that depicted the defendant, and
information that his driver's license had been suspended.
Sergeant Weisenborn then checked the defendant's RMV driver
history in the CJIS database and learned that his license had
been suspended for OUI. Sergeant Weisenborn also checked the
CJIS database for the defendant's criminal history as maintained
by the board of probation and learned that a continuance without
a finding had been imposed on an OUI charge and he was on
probation until January 2026. Sergeant Weisenborn asked the
defendant if he had been to court within the past week, and the
defendant admitted that he was on probation and his license had
been suspended for OUI. The defendant was arrested.
On the same day, July 18, 2024, the defendant was arraigned
in the Concord District Court on charges arising from his
arrest. The complaint charged him with offenses including
operating a motor vehicle after his license had been suspended
for OUI, G. L. c. 90, § 23; operating a motor vehicle while

4
using an electronic device, G. L. c. 90, § 13B; and failure to
have an inspection sticker, G. L. c. 90, § 20.
Also on July 18, 2024, a notice of probation violation
issued in the Chelsea District Court. At a probation violation
hearing on July 31, 2024, Sergeant Weisenborn and the
defendant's probation officer testified as outlined above.1 The
defendant objected to admission of exhibit 5, the printout of
his RMV driver history.2 On August 9, 2024, the judge ruled to
admit exhibit 5, concluding that it bore substantial indicia of
reliability. The judge noted that the defendant's biographical
information in exhibit 5 matched the biographical information in
his board of probation record (exhibit 2), which was in evidence
without objection by the defendant. The judge found the
defendant in violation of probation, revoked his probation,
vacated the continuances without findings on the Chelsea
charges, imposed guilty findings, and sentenced the defendant to
1 The defendant failed to provide this court with the
transcript of the July 31, 2024 evidentiary hearing. As
appellant, it was his duty to provide us with "the transcript of
all proceedings relevant to the appeal." Mass. R. A. P.
8 (b) (1) (A), as appearing in 481 Mass. 1611 (2019). The
Commonwealth has provided that transcript to this court.
2 The defendant also objected to admission of Sergeant
Weisenborn's police report and his testimony about the results
of his queries to the CJIS database. The defendant does not
pursue those issues on appeal.

5
concurrent one-year terms in the house of correction with four
months to serve, the balance suspended for one year. The
defendant appeals.
Discussion. 1. Admissibility of driver history. The
defendant argues that revocation of his probation was improper
because exhibit 5 was inadmissible hearsay. We disagree.
"At a probation violation hearing, the Commonwealth bears
the burden of proving a violation of a condition of probation by
a preponderance of the evidence." Commonwealth v. Jarrett, 491
Mass. 437, 445 (2023). "A determination whether a violation of
probation has occurred lies within the discretion of the hearing
judge." Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014),
citing Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990).
The judge's decision to revoke the defendant's probation and its
underlying evidentiary rulings are reviewed for an abuse of
discretion. See Commonwealth v. Rainey, 491 Mass. 632, 648
(2023); Jarrett, supra.
In a probation violation hearing, a judge may rely on
hearsay evidence if it is reliable. See Durling, 407 Mass. at
118. "[W]hen hearsay is offered as the only evidence of the
alleged violation, the indicia of reliability must be
substantial." Id. See Commonwealth v. Hartfield, 474 Mass.
474, 484 (2016). For the purposes of a probation violation

6
hearing, hearsay does not need to fall into a particular
exception or exemption to be sufficiently reliable. See
Commonwealth v. Thissell, 457 Mass. 191, 197 (2010). In
determining whether hearsay is substantially reliable, the judge
may consider a nonexhaustive list of factors, including
"whether that evidence (1) is based on personal
knowledge and/or direct observation, rather than on
other hearsay; (2) involves observations recorded
close in time to the events in question; (3) is
factually detailed, rather than generalized and
conclusory; (4) is internally consistent; (5) is
corroborated by any evidence provided by the
probationer; (6) was provided by a disinterested
witness; or (7) was provided under circumstances that
support the veracity of the source (e.g., was provided
under the pains and penalties of perjury or subject to
criminal penalties for providing false information)."
Rule 7(b) of the District/Municipal Courts Rules for Probation
Violation Proceedings (2024) (rule 7[b]). See Commonwealth v.
Ogarro, 95 Mass. App. Ct. 662, 669 (2019). A hearsay statement
need not satisfy all of those criteria to be substantially
reliable. See Commonwealth v. Gelin, 494 Mass. 777, 785 (2024)
(police report and grand jury testimony sufficiently reliable).
The defendant argues that exhibit 5 did not meet any of the
seven Hartfield factors. We conclude that the judge did not
abuse his discretion in finding that exhibit 5 was substantially
reliable.
The defendant's RMV driver history as shown on exhibit 5
was factually detailed, and the judge permissibly found that

7
these factual details were corroborated by other evidence. The
judge noted that the defendant's biographical data as listed in
that printout, including his full name and date of birth, were
"consistent with . . . the Board of Probation record, which is
in evidence without objection from the Defendant." As Sergeant
Weisenborn testified, the defendant provided his name and date
of birth, which were consistent with the information in his RMV
driver history and his board of probation record. Cf.
Commonwealth v. Smith, 496 Mass. 304, 310 (2025) (evidence that
search of CJIS firearm licensing database for "particular name
and birth date " turned up no results would suffice to prove
lack of license); Commonwealth v. Jones, 106 Mass. 613, 617
(2026) (same).
Significantly, as relevant to the issue before the judge,
exhibit 5 shows that the defendant's driver's license was
suspended on July 12, 2024, with an "incident date" of July 10,
2024, which precisely matches a docket entry from the Chelsea
charges. Indeed, exhibit 5 was largely irrelevant, as the judge
could have found, based on the court's own records, that the
defendant's license had been suspended for forty-five days on
July 10, just eight days before Sergeant Weisenborn stopped the
defendant while driving. Furthermore, Sergeant Weisenborn
testified that the defendant admitted that his license had been

8
suspended. Exhibit 5 was cumulative of that evidence; it was
not the "only evidence" of the violation of probation. Durling,
407 Mass. at 118.
The judge did not abuse his discretion in determining that
the printout of the defendant's driver history (exhibit 5) was
substantially reliable.
2. Confrontation clause issues. The defendant also argues
that his due process rights to confront witnesses and to present
a defense were violated because the probation department did not
timely disclose exhibit 5 to him, and he was deprived of the
opportunity to cross-examine a CJIS employee about the
statements contained in it.
"'The right to present a defense' during the adjudicatory
phase of a probation violation hearing 'is parallel to, but not
coextensive with, the right to present a defense at trial.'"
Commonwealth v. Zachairah Z., 494 Mass. 417, 425 (2024), quoting
Commonwealth v. Kelsey, 464 Mass. 315, 322 (2013). Thus, as
discussed, a judge has discretion to consider substantially
reliable hearsay.
To the extent that the defendant argues that his due
process rights were violated because the probation department
did not timely disclose to him the printout of his RMV driver
history, we are not persuaded. The defendant has not argued,

9
either in the trial court or on appeal, that he was prejudiced
by the timing of the disclosure of that printout. Indeed, the
judge continued the probation violation hearing for ten days to
give the defendant the opportunity to submit a memorandum on the
admissibility of exhibit 5, but that memorandum does not argue
any prejudice from the timing of its disclosure. In those
circumstances, his argument cannot succeed. See Commonwealth v.
Morse, 50 Mass. App. Ct. 582, 586-587 (2000) (no prejudice,
where probationer received four days' notice of violation
hearing, was assigned counsel on morning of hearing, and did not
move for continuance or explain what evidence would have been
presented with more time to prepare).
To the extent that the defendant argues that his due
process rights were violated because the printout of his RMV
driver history was admitted without testimony of an employee of
CJIS who maintains that database, we are again not persuaded.
"Registry records of driver history are not 'testimonial' and do
not raise Sixth Amendment . . . confrontation clause concerns."
Commonwealth v. Royal, 89 Mass. App. Ct. 168, 173 (2016). The
judge was not required to hear testimony from an employee of
CJIS -- or, for that matter, the RMV -- before considering
exhibit 5. Cf. Smith, 496 Mass. at 312 (witness need not have
comprehensive knowledge of database, but only familiarity with

10
process of searching it and its record-keeping practices). Nor
was the judge required, before admitting exhibit 5 at the
probation violation hearing, to hear testimony of the probation
department employee who printed out the defendant's RMV driver
history. The judge took "judicial notice" that the person who
generated the printout, whose name was at the top of its first
page, was "a case specialist for the Massachusetts Probation
Department." The defendant did not argue that the Commonwealth
was required to call the case specialist to testify, or seek to
call her himself. Contrast Commonwealth v. Encarnacion, 105
Mass. App. Ct. 46, 51 (2024) (CJIS printout was hearsay
inadmissible at trial, where defendant objected to testimony
about results of search performed by another person). The judge
did not abuse his discretion in admitting the printout as

11
proffered by the probation officer and corroborated by other
evidence.
Order dated August 9, 2024,
finding probation
violation, revoking
probation, and imposing
sentence affirmed.
By the Court (Massing,
Grant & Wood, JJ.3),
Clerk
Entered: October 14, 2026.
3 The panelists are listed in order of seniority.