MATTHEW SITZMANN V. STATE OF ARKANSAS

On May 5, 2017, the State charged Sitzmann with lottery fraud. Sitzmann waived

his right to a jury trial, and the court held a bench trial on February 5, 2018.

At trial, Justin Foster testified that he is the general manager of the Petro Shopping

Center (Petro) in North Little Rock and that Petro accepts and sells lottery tickets. He

explained that around May 4, 2016, he discovered that a shipment of lottery tickets had

been opened and that booklet 9758 was missing. He notified the Arkansas Lottery

Commission (the Commission) that booklet 9758 was missing from his shipment. Foster







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stated that he learned from the Commission that Matthew Sitzmann had accepted the

shipment with booklet 9758 and that a ticket from that booklet had been redeemed at

Kum and Go.

Foster explained that he discovered that Matthew Sitzmann worked at the Iron

Skillet, a restaurant attached to Petro. Foster confronted Sitzmann and asked if he had

signed for the shipment. Sitzmann admitted that he had signed for the shipment, but he

claimed that he had returned it to Petro. Foster then confronted Sitzmann about

redeeming a ticket at Kum and Go. Sitzmann admitted to Foster that he went to Kum and

Go but stated that he had received the ticket as a tip. Foster also testified that he watched a

Kum and Go surveillance video from May 3, 2016, and he identified Sitzmann in the

video. The State introduced the video into evidence.

Gregory Mote testified that he had worked in the security division of the Arkansas

Scholarship Lottery, and he explained the security procedure for the distribution of lottery

tickets to retailers. He stated that tickets are shipped to retailers in a nonactive status and

that retailers activate tickets by scanning them into their lottery terminal. He explained that

when a nonactive ticket is redeemed at a retailer, his office receives an automatically

generated email alerting him of the redemption of a nonactive ticket. He testified that he

received an email concerning the redemption of a nonactive ticket from booklet 9758 at

Kum and Go on May 3, 2016. He testified that the email is kept in the normal course of

business.







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The State then introduced the email into evidence, and Sitzmann objected. He

asserted that the email is hearsay. He noted that the email was generated by

system@intralot.us, not the Commission, and a representative from Intralot needed to

testify. The court denied the objection and admitted the email into evidence.

At the conclusion of trial, the court found Sitzmann guilty of lottery fraud and

sentenced him to six years in the Arkansas Department of Correction. This appeal

followed.

On appeal, Sitzmann argues that the circuit court abused its discretion by admitting

into evidence the email because the email is hearsay and does not qualify under the

business-record exception because the State did not present evidence of how it was

transmitted or who prepared the email. He points out that the email is from

system@intralot.us and that an Intralot representative did not testify about the procedures

of transmitting the email. He further claims that he is prejudiced by the email because the

email is the only evidence showing that he redeemed a missing or stolen lottery ticket. He

points out that he gave Foster an “exculpatory explanation” that he received the ticket as a

tip; thus, he claims that without the email, there was no evidence that he purposely

defrauded the Commission.

The decision to admit or exclude evidence is within the sound discretion of the

circuit court, and we will not reverse a circuit court’s decision regarding the admission

of evidence absent a manifest abuse of discretion. See Rodriguez v. State, 372 Ark. 335, 276

S.W.3d 208 (2008). Specifically, we have stated that an appellate court will not reverse a







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circuit court’s ruling on a hearsay objection unless the appellant can demonstrate an abuse

of discretion. Rye v. State, 2009 Ark. App. 389, 373 S.W.3d 354. An abuse of discretion is a

high threshold that does not simply require error in the circuit court’s decision but

requires that the circuit court act improvidently, thoughtlessly, or without due

consideration. Id. Additionally, this court will not reverse an evidentiary ruling absent a

showing of prejudice. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003). A person

commits the offense of lottery fraud if he falsely makes, alters, forges, utters, passes, or

counterfeits a ticket or share in a lottery with a purpose to defraud the Office of the

Arkansas Lottery. Ark. Code Ann. § 5-55-501(b)(1) (Repl. 2016).

Arkansas Rule of Evidence 803(6) provides that records of a regularly

conducted business activity are not excluded from evidence by the hearsay rule. See also

Jones v. John B. Dozier Land Tr., 2017 Ark. App. 23, 511 S.W.3d 869. To be admissible

under the business-record exception, the offering party must meet seven requirements. Id.

The evidence must be (1) a record or other compilation (2) of acts or events (3) made at or

near the time the act or event occurred (4) by a person with knowledge, or from

information transmitted by a person with knowledge (5) kept in the course of a regularly

conducted business (6) that has a regular practice of recording such information (7) as

shown by the testimony of the custodian or other qualified witness. Id. Although there is

no prohibition against one company integrating records made by another into its

own business records, the party offering the record must still establish by a competent

witness that its content is worthy of belief. Id. (citing Marshall Trucking Co. v. State, 23 Ark.







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App. 110, 743 S.W.2d 16 (1988)). The mere fact that a document is retained in a

business’s files does not supply the required foundation for admission. Id. (citing Marshall

Trucking, 23 Ark. App. 110, 743 S.W.2d 16). Only those documents meeting the seven

requirements and are also found to be trustworthy are admissible under Rule 803(6). Id.

In this case, even assuming the circuit court erred in admitting the email, Sitzmann

has failed to establish that he was prejudiced by the admission of the email. Before the

State introduced the email, Mote testified without objection that he received notification

on May 3, 2016, that a nonactivated lottery ticket from booklet 9758 had been redeemed

at a Kum and Go. Moreover, even though Sitzmann maintains that he received the ticket

as a tip, he also admitted to Foster that he signed for the shipment of lottery tickets. When

acting as a fact-finder, the circuit court determines the credibility of witnesses, resolves

conflicts and inconsistencies in testimony, and assesses the weight to be given the evidence.

Accordingly, we hold that Sitzmann has not established a reversible error, and we affirm his conviction.



Affirmed.