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14-P-442                                                Appeals Court

                COMMONWEALTH    vs.    JULIO TORRES.



                No. 14-P-442.         August 5, 2015.


Sex Offender. Evidence, Sex offender, Criminal records.
     Practice, Civil, Instructions to jury.


     Following a jury trial in the Superior Court, the
defendant, Julio Torres, was found to be a sexually dangerous
person. See G. L. c. 123A, § 1.1 The defendant appeals,
claiming error in certain evidentiary rulings and jury
instructions. We affirm.

     1. Prior criminal history. In 1997, the defendant was
charged with assault and battery by means of a dangerous weapon
and indecent assault and battery following an incident wherein
he assaulted a sixteen year old female victim. The defendant
was twenty-five years old at the time. When the victim refused
his advances,2 he held a knife to her stomach, pushed her back,

     1
       "In order to find the defendant is a 'sexually dangerous
person,' the Commonwealth must prove three things: (1) the
defendant has been convicted of a '[s]exual offense' . . .; (2)
he suffers from a '[m]ental abnormality' or 'personality
disorder' . . .; 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, definition of "[s]exually dangerous
person".
     2
       The defendant told the victim:     "You're going to be mine
no matter what."
                                                                   2


straddled her, and began to choke her. During this assault, the
defendant touched the victim's buttocks and legs. As part of a
plea agreement, the defendant pleaded guilty to assault and
battery by means of a dangerous weapon, and the Commonwealth
dismissed the indecent assault and battery charge. The
defendant received a suspended sentence, a two-year term of
probation, and was ordered to "[p]articipate in [a] Mass. Rehab.
evaluation" and related treatment.

     The defendant subsequently engaged in further criminal
sexual behavior, leading to additional convictions. In 2000, he
pleaded guilty to four counts of rape and one count of indecent
assault and battery. In 2009, he was convicted of annoying and
accosting a person of the opposite sex.3

     2. Evidentiary issues. a. Admission of 1997 conviction.
The defendant argues that it was error to deny his motion in
limine to preclude the Commonwealth's witnesses from referring
to evidence related to the 1997 conviction of assault and
battery by means of a dangerous weapon because it is not a
sexual offense. We disagree. See G. L. c. 123A, § 14(c).4

     The position taken by the defendant was rejected by this
court in Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 332
(2007) (police reports relating to defendant's conviction of
assault and battery admissible pursuant to G. L. c. 123A,
§ 14[c], where incident involved rape of a fourteen year old
girl). That the defendant in Starkus pleaded guilty to assault
and battery, a lesser included offense of rape of a child, and
the defendant in this case pleaded guilty to a separate charge
of assault and battery by means of a dangerous weapon, is a
distinction without a difference. In both cases the defendants'


    3
       The defendant was sentenced to concurrent seven-year
committed sentences and five years of probation on the 2000
convictions. He received a six-month sentence in a house of
correction on the 2009 conviction. That conviction also
resulted in violation of his probation, for which he received an
eighteen-month to two-year sentence.
    4
       General Laws c. 123A, § 14(c), inserted by St. 1999,
c. 74, § 8, provides for the admission of certain records in
proceedings involving persons who are the subject of a sexually
dangerous person petition, including "police reports relating to
such person's prior sexual offenses."
                                                                   3


acts were indisputably sexual in nature and motivation, and
constituted sexual offenses under the statute. See G. L.
c. 123A, § 1 (defining "sexual offense" as including "any other
offense, the facts of which, under the totality of the
circumstances, manifest a sexual motivation or pattern of
conduct or series of acts of sexually-motivated offenses"5). As
in Starkus, the defendant cannot benefit from a favorable plea
agreement while at the same time negating the underlying charged
conduct. See ibid. There was no error.6

     b. Admission of board of probation record. The defendant
argues it was error to admit his board of probation record in
its entirety as it includes dismissed charges and defaults. The
claim is without merit. Such records are expressly admissible
by statute, G. L. c. 123A,§ 14(c). McHoul, petitioner, 445
Mass. 143, 152 (2005). Here, the defaults were relevant on the
issue whether the defendant could abide by orders of the court.
The underlying facts of the dismissed cases were not admitted,
however, thereby limiting any perceived prejudice. Compare
Commonwealth v. Mazzarino, 81 Mass. App. Ct. 358, 369 (2012).
Finally, the defendant was given the opportunity to propose a
limiting instruction related to the probation records, which he
declined.

     3. Jury instructions. On cross-examination of one of the
Commonwealth's experts, defense counsel asked what would happen
if the defendant was found to be a sexually dangerous person.
The expert responded that he would be civilly committed from one
day to life. Earlier in the proceedings, the judge cautioned
counsel that such questions would open the door into inquiry
concerning release procedures. In his final instructions, the
judge informed the jury of the defendant's right to petition for
release if committed. The defendant now argues that it was
error for the judge to so instruct the jurors, claiming that it
was extraneous to the proceedings and lowered the Commonwealth's
burden of proof.

     While a jury instruction as to the consequences of a
verdict in this type of case is generally "best left omitted,"

     5
       This language was inserted in the definition by St. 2004,
c. 66, § 6.
     6
       Nor do the contents of the police reports admitted
constitute inadmissible hearsay. See Commonwealth v. Given, 441
Mass. 741, 745 & n.5 (2004).
                                                                4


Miller, petitioner, 71 Mass. App. Ct. 625, 631 (2008), the
particular facts of a case can permit such an instruction. See
Commonwealth v. Mazzarino, supra at 365. That is the case here.
The judge's instructions provided context to the expert's
testimony and "minimized any untoward influence." Miller,
petitioner, supra at 632 (citations omitted). Moreover, the
judge referred to the Commonwealth's burden of proof numerous
times during his instructions to the jury. There was no error.

                                   Judgment affirmed.


     Brandon L. Campbell for the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
