Opinion
15-P-719
03-02-2017
COMMONWEALTH v. John TOBIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the defendant to be a sexually dangerous person (SDP) under G. L. c. 123A, and he was ordered committed to the Massachusetts Treatment Center. He argues on appeal that the evidence was insufficient to support the jury's verdict and that the trial judge gave an erroneous instruction on the statutory definition of an SDP. We affirm.
Background . The material facts are not in dispute. The defendant has a lengthy record of exhibitionism dating back to 1987, resulting in approximately fifteen convictions of noncontact sexual offenses in three different States. The majority of his offenses were committed in public places, and his victims were mostly female children. By the defendant's estimate, he has committed approximately one hundred to 200 acts of exhibitionism in his lifetime.
The defendant also has a conviction of a contact sexual offense. That conviction arose from a 2001 incident in which the defendant approached a ten year old girl, grabbed her from behind, lifted her from the ground, and fondled her vagina. Consequently, the defendant was convicted in 2003 of one count of indecent assault and battery on a child and was sentenced to two years in the house of correction.
The defendant was most recently incarcerated for probation violations based on new convictions of indecent exposure in 2007 and lewd and lascivious behavior in 2008. Approximately one month before the defendant's scheduled release in late 2009, the Commonwealth filed a petition under G. L. c. 123A to commit him as an SDP.
Trial on the petition was held in November of 2012, at which a qualified examiner testified on behalf of the Commonwealth that the defendant met the statutory definition of an SDP. The qualified examiner diagnosed the defendant with exhibitionism and pedophilia, observing that he had a history of committing offenses of a "predatory nature" against children, in that he repeatedly sought out places frequented by children and then exposed himself. The defendant countered with testimony from three experts and a report from a qualified examiner (who was deceased at the time of trial), all of whom opined that the defendant did not meet the statutory definition of an SDP because he was not likely to commit another contact sexual offense. These experts agreed, however, that the defendant posed a risk of committing additional noncontact sexual offenses and that he had a pattern of offending against children, which was likely to continue in the future.
Several earlier dates were scheduled but continued at the request of one or both of the parties.
Discussion . 1. Sufficiency of the evidence . To establish that a defendant is a "sexually dangerous person," the Commonwealth must prove beyond a reasonable doubt that "(1) the defendant has been convicted of a ‘[s]exual offense,’ as defined in G. L. c. 123A, § 1 ; (2) he suffers from a ‘[m]ental abnormality’ or ‘[p]ersonality disorder,’ as those terms are defined in § 1 ; and (3) as a result of such mental abnormality or personality disorder, the defendant is ‘likely to engage in sexual offenses if not confined to a secure facility.’ " Commonwealth v. Suave , 460 Mass. 582, 584 n.3 (2011), quoting from G. L. c. 123A, § 1. Here, the defendant challenges only the second element—whether he suffers from a "mental abnormality" within the meaning of the statute—arguing that counsel's failure to move for a directed verdict on this basis resulted in a substantial risk of a miscarriage of justice. In assessing the sufficiency of the proof on this element, "we review the evidence in the light most favorable to the Commonwealth." Commonwealth v. Cahoon , 86 Mass. App. Ct. 266, 268 (2014).
The term "mental abnormality" "contains both medical and legal aspects." Suave , 460 Mass. at 587. At issue in this case is the legal aspect, which requires the Commonwealth to prove that the defendant's mental disorder makes him "a menace to the health and safety of other persons." G. L. c. 123A, § 1, as appearing in St. 1999, c. 74, § 4. See Suave , supra . "Menace" in turn "connotes a person whose conduct will objectively put his victim in fear of bodily harm by reason of a battery and, specifically, a contact sex crime." Id . at 588.
Viewed in the light most favorable to the Commonwealth, the evidence supported a finding that the defendant is a "menace" as defined in Suave . As an initial matter, to the extent the defendant is contending that, as a matter of law, he cannot be deemed a "menace" because his experts opined he is likely to commit only noncontact sex offenses, that precise argument was rejected in Commonwealth v. Fay , 467 Mass. 574 (2014). Fay counsels that each case must be decided on its own facts, with the focus on "the reasonably expected harm to [the defendant's] prospective victims, specifically, whether the defendant's predicted offenses ‘will instill in his victims a reasonable apprehension of being subjected to a contact sex crime.’ " Id . at 581, quoting from Suave , 460 Mass. at 588. Under that test "a defendant who is predicted to engage in exclusively noncontact offenses may be found to be a sexually dangerous person under G. L. c. 123A." Fay , 467 Mass. at 581–582.
This case is controlled in all material respects by Fay . There, the court upheld a finding that the defendant was a "menace" based on evidence that he was diagnosed with pedophilia and exhibitionism; he "had targeted prepubescent children in the past and would likely continue to do so"; and his offenses "included either luring behavior, approaching behavior, or both." Id . at 582. Likewise, here, a qualified examiner testified that the defendant has pedophilia and exhibitionism; the experts agreed that he has a pattern of targeting children and would likely continue that pattern in the future; and his offenses were characterized by "predatory" behavior against children. In fact, the evidence against the defendant is even stronger than in Fay because, in addition to his numerous noncontact offenses, he has been convicted of a contact offense, indecent assault and battery against a child. Thus, as in Fay , the record is sufficient to establish that the defendant's predicted future conduct "would cause a child reasonably to fear that he or she was likely to be the victim of a contact sex offense." Id . at 583.
2. Jury instruction on the definition of an SDP . The defendant challenges the judge's instruction on the definition of an SDP, claiming that the judge erroneously applied the "menace" requirement to the third element of the definition, rather than the second. The defendant's argument is based on a brief summary of the three elements that the judge gave at the conclusion of her instruction. Specifically, after giving a detailed and lengthy instruction as to each element, the judge stated the following:
It is unclear whether the defendant objected to the instruction because portions of the transcript are missing due to "low audio." We will assume that the argument is preserved.
"Now, having had the explanation of all of the elements, I will state the elements to you in short form for one last time. ...
"The three elements that make up sexual[ ] dangerousness, and I've explained them to you, okay, at length, and which the Commonwealth must prove beyond a reasonable doubt is that defendant has been committed [sic ] of a sexual offense as defined by General Laws Chapter 123A, Section 1....
"Two, that he suffers from a mental abnormality as I have defined that term to you.
"And three, as a result of such mental abnormality, he is likely to engage in sexual offenses of a menacing nature, as I've defined those to you, if not confined to a secure facility."
The defendant focuses on the judge's use of the word "menacing" in her summary of the third element, which he contends was prejudicial error. We disagree. "[W]hen reviewing a judge's instructions to a jury, we do not consider phrases in isolation, but rather ‘we evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words.’ " Commonwealth v. Glacken , 451 Mass. 163, 168–169 (2008), quoting from Commonwealth v. Niemic , 427 Mass. 718, 720 (1998). Before she gave her summary, the judge accurately stated that the second element required the Commonwealth to prove beyond a reasonable doubt that the defendant has a mental abnormality that "predisposes [him] to the commission of a criminal sexual act to a degree that makes [him] a menace to the health and safety of other persons." The judge then immediately repeated that statement for emphasis. Thus, when viewed as a whole, the instruction was not erroneous.
Furthermore, even assuming that the summary could have confused the jury as to whether the "menace" requirement applied to the second element or the third, the defendant fails to explain how that would have prejudiced him. In either case the Commonwealth would still have to prove that the defendant qualified as a "menace," a term that the judge defined at length in her instruction. Any error resulting from the summary was therefore not prejudicial and does not entitle the defendant to a new trial. See Commonwealth v. Asher , 471 Mass. 580, 586 (2015).
The statement of issues in the defendant's brief identifies, as a third claim of error, that the judge should not have allowed the Commonwealth to present what the defendant characterizes as victim impact evidence. The defendant does not develop this claim, however, citing no supporting authority and failing to clearly specify the relevant parts of the record. His discussion thus fails to rise to the level of adequate appellate argument, and we decline to address it. See Commonwealth v. Balboni , 89 Mass. App. Ct. 651, 661 (2016), citing Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and Commonwealth v. Gray , 423 Mass. 293, 296-297 (1996).
Judgment affirmed.