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17-P-1194                                              Appeals Court

            COMMONWEALTH    vs.   ROBERT KENNETH SPRING, JR.


                              No. 17-P-1194.

            Norfolk.       June 1, 2018. - October 24, 2018.

            Present:    Milkey, Sullivan, & McDonough, JJ.


Sex Offender. Practice, Civil, Sex offender, Instructions to
     jury, Assistance of counsel, New trial, Directed verdict.
     Constitutional Law, Assistance of counsel.



     Petition for civil commitment filed in the Superior Court
Department on January 9, 2015.

     The case was tried before Raymond J. Brassard, J., and a
motion for a new trial, filed on October 13, 2016, was heard by
William F. Sullivan, J.


     David B. Hirsch for the defendant.
     Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.


    SULLIVAN, J.       Following a jury trial, the defendant, Robert

Kenneth Spring, Jr., was found to be a sexually dangerous person

(SDP).   See G. L. c. 123A, §§ 12, 14.      The evidence at trial

established that he had a history of both contact and noncontact
                                                                   2


sex offenses, and the jury were asked to determine whether the

defendant would commit either kind of sex offense in the future.

This case calls upon us to address, in the context of a motion

for new trial claiming ineffective assistance of counsel, what

instruction the jury should have been given regarding whether

the defendant was likely to reoffend in such a way as to render

him a sexually dangerous person.

    To be found a sexually dangerous person, a finder of fact

must determine beyond a reasonable doubt that a defendant

suffers from a mental abnormality that renders him "a menace to

the health and safety of other persons."   G. L. c. 123A, § 1.1

In Commonwealth v. Suave, 460 Mass. 582, 588 (2011), the Supreme

Judicial Court held, in a case involving solely noncontact sex

offenses against adult victims, that a defendant can be found to

be a menace, and therefore a sexually dangerous person, only

where the Commonwealth has shown (among other things) that "the

defendant's predicted sexual offenses will instill in his




    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 '[p]ersonality
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
G. L. c. 123A, § 1 (definition of "[s]exually dangerous
person").
                                                                     3


victims a reasonable apprehension of being subjected to a

contact sex crime."

    Some two and one-half years later, in a pair of cases

issued the same day, the court again considered the Suave test.

Commonwealth v. Fay, 467 Mass. 574, cert. denied, 135 S. Ct. 150

(2014), involved noncontact sex offenses against children.     Fay

affirmed a determination in a jury-waived trial that the

defendant, who had engaged in noncontact sex offenses that

included luring and approaching behavior towards children, was

an SDP, as his behavior could place children in reasonable fear

of a contact offense in the future.

    In Commonwealth v. Walker, 467 Mass. 1017 (2014), a jury-

waived case tried before Suave, involving a history of both

contact and noncontact sex offenses, the Supreme Judicial Court

considered the judge's finding that the defendant was likely to

commit noncontact sex offenses.   The Supreme Judicial Court

vacated the judgment, holding that "[i]f the only basis for the

judge's conclusion that the defendant is a 'menace' were the

likelihood that the defendant would commit noncontact offenses,

without the further finding that these offenses would be likely

to instill in his victims a reasonable apprehension of being

subjected to a contact sex crime, the defendant could not be

found sexually dangerous."   Id. at 1018.   Because the judge's

findings regarding the commission of future contact sex offenses
                                                                  4


were also unclear, the matter was remanded for further findings

as to the likelihood the defendant would engage in contact or

noncontact sex offenses in the future, and, if the latter only,

whether the Suave test was satisfied.    Id.2

    Today's case, tried over a year after the decisions in Fay

and Walker issued, presents a similar legal question in the

context of a jury trial.   Here, the defendant had committed

multiple contact offenses against children between 1980 and

1993, resulting in two convictions, for which he received a

suspended sentence and a period of probation.    In the twenty-two

years preceding the SDP trial he did not commit any other

contact sex offenses, but he acquired and viewed child

pornography that contained graphic images of contact sex

offenses involving young children.    In 2014, the defendant

pleaded guilty to one count of possession of child pornography

and was sentenced to two and one-half years in the house of

correction, with one year to serve.




    2  A third case, Commonwealth v. Almeida, 467 Mass. 1015
(2014), also issued the same day as Walker and Fay. The jury-
waived SDP trial in Almeida was held before Suave issued and,
like Suave, involved a history of noncontact sex offenses
against adult victims. The trial judge's determination in
Almeida that the defendant was an SDP was vacated, and the case
was remanded for further findings consistent with the
requirements of Suave.
                                                                    5


    The 2014 conviction led to this SDP proceeding.      However,

there was no evidence at the SDP trial that the defendant

created, shared, or distributed child pornography, lured or

approached children using child pornography, or showed child

pornography to any child (or any other person) in such a way as

to instill a reasonable fear of a contact sex offense.     The jury

asked three very specific questions, one during the questioning

of an expert witness, and two during deliberations, concerning

whether viewing child pornography rendered the defendant a

sexually dangerous person.   Despite these questions, counsel did

not request, and the jury were not given, an instruction that if

they found the defendant likely to engage solely in the

noncontact offense of viewing child pornography, they could not

find him to be an SDP unless they also found that the noncontact

offense "will instill in his victims a reasonable apprehension

of being subjected to a contact sex crime."   Suave, 460 Mass. at

588 (hereinafter Suave/Fay/Walker instruction).

    On motion for new trial, the defendant argued that his

counsel was ineffective for failing to request such an

instruction, and that he was prejudiced as a result.     On this

record, and consistent with the case law, see Kansas v.

Hendricks, 521 U.S. 346, 357-358 (1997); Walker, 467 Mass. at

1017-1018, we agree.   The instructions permitted the jury to

conclude that the defendant was an SDP based on a finding that
                                                                       6


he was likely to reoffend by possessing child pornography,

without more.    The instruction given permitted the jury to find

the defendant a sexually dangerous person under circumstances

that do not meet the statutory definition of an SDP, as

interpreted by the Supreme Judicial Court.

     Background.    1.   Contact offenses.   The defendant's history

of contact offenses, both charged and uncharged, was undisputed.

The defendant committed his first sex offense in 1980 when he

was seventeen; he performed oral sex on a young boy and touched

a young girl in the vaginal area over her clothes.     He was later

charged with touching a fifteen year old girl by putting his

hands down her pants.    In 1981, when the defendant was eighteen,

he sexually abused two young boys, ages nine and eleven, while

babysitting for them.3

     In 1993, the defendant turned himself in and pleaded guilty

to two counts of indecent assault and battery on Lara4 and

another girl, both under the age of fourteen.     See G. L. c. 265,




     3 On multiple occasions, the defendant masturbated the boys.
He also watched the younger boy urinate between his five year
old sister's legs. He claimed that the boys were "girl-crazy,"
"always aroused," and that some of the offenses occurred while
they were "exploring each other's bodies." He justified his
behavior by explaining that "things were different back then."

     4   A pseudonym.
                                                                      7


§ 13B.5   The defendant admitted touching Lara over a two-year

period while she was between the ages of eight and ten.6,7   As a

result of these convictions, he was sentenced to two and one-

half years in the house of correction, suspended until October,

1996, with probationary conditions.

     2.   Child pornography.   In 1993, while on probation and

attending court-ordered group therapy stemming from his indecent

assault and battery convictions, the defendant learned (from

members of his therapy group) how to get child pornography.      He

continued to collect child pornography containing graphic images

of contact offenses against young children until his arrest in

March, 2012, for possession of child pornography.    See G. L.


     5 The defendant had spent significant sums of money on Lara
and her brother to procure the brother's silence.

     6 He fondled Lara's breast and vagina over her clothes as
she slept. The defendant masturbated while touching her. He
justified his conduct by stating that he "never fucked [Lara] as
her father did." The defendant referred to Lara as his girl
friend and stated that "[she] would call him at work, [and] they
would fool around and wrestle." He claimed that he was in love
with her and viewed himself as being in a relationship with her,
even though she was a child. On one occasion, the defendant
indecently assaulted Lara's friend, also a young girl, by
touching her vagina over her bathing suit.

     7 Also in 1993 the defendant engaged in inappropriate
behavior with two eleven year old girls. He grabbed them and
kissed them and described one as having a "spongy ass." After
being confronted by the mother of one of the girls, the
defendant stated that he was glad the girl was moving away
because he was concerned that "something might . . . happen[]"
because he had "a crush" on both of the young girls.
                                                                   8


c. 272, § 29C.8   The defendant told a therapist that he

"realize[d] that he has a sexual interest in children," and used

child pornography as "self-therapy," and to prevent himself from

committing additional sex offenses against children.

     A forensic examiner identified 4,800 images of child

pornography seized from the defendant.     The examiner also

testified that someone accessed child pornography from the

defendant's computer in the days immediately leading up to his

arrest.9

     c.    New contact with Lara.   Before his 2012 arrest, the

defendant renewed contact with Lara, by this time an adult.

According to the defendant, they became engaged in 2013.

Although the defendant stated that he is in love with Lara, he


     8 The images seized from the defendant included prepubescent
children fully displaying their genitals, oral sex with
children, oral sex with adult men and women, and penetrative
acts with adult males and females. Some images showed adult men
vaginally or anally penetrating young girls; others showed men
anally penetrating young boys. One image was an adult male with
an erect penis standing over an infant in a crib. Another image
showed a girl bound with rope, with her legs spread open on a
bed. Most of the children were between six and twelve years
old; some images were of four and five year old children. Eight
hundred and seventeen images were of victims later identified by
the National Center for Missing and Exploited Children.

     9 Bookmarks on the defendant's desktop computer included
"Lesbian Lolita stories about the homoerotic experiences of
little girls" and "Child sex stories of child erotica, little
girls nude." The desktop computer had been used for Google
searches that included "girls photos teen," "teen girls photos,"
and "pre-teen girls photos."
                                                                     9


also stated that he has not had contact with her since his

incarceration and would not have contact with her if he is

released.10

     4.   Expert testimony.   At trial, the defense proceeded on a

theory that because of the defendant's age (fifty-two at the

time of trial) and the extended period of time he had been

living in the community without committing a contact sex

offense, he was not sexually dangerous and was not likely to

commit any sex offense -- contact or noncontact -- if released.

The Commonwealth argued that the defendant had a long history of

contact and noncontact offenses and that he was likely to commit

a sex offense of one kind or another if released.    The expert

testimony tracked these theories.

     The Commonwealth's and defendant's experts all opined that

the defendant had pedophilic disorder.    In rendering their

opinions, the Commonwealth's experts, Dr. Katrin Rouse-Weir, who

served as a qualified examiner in the case, and Dr. Gregg Belle,

did not distinguish between contact and noncontact offenses in

assessing the likelihood that the defendant would reoffend.




     10The defendant had limited or no sexual contact with Lara,
who, he claimed, had extorted $7,000 from him to obtain her
agreement not to report that he had kissed her. After he was
incarcerated, a "significant portion of [the defendant's] home
was burned down," apparently accidentally, "while [Lara] was
residing at the house."
                                                                   10


They did not offer any opinion whether the defendant, if he

committed only noncontact offenses in the future, would put

another in reasonable fear of a contact offense.   Dr. Rouse-Weir

opined that the defendant's mental abnormality "predisposes him

to the commission of criminal sexual acts, the possession and

use of child pornography."   She also found significant the fact

that the defendant "has committed a number of contact sex

offenses involving children[,]" and stated, "[I]n my opinion

. . . he meets the criteria for menace in the statute."     She

concluded that "[the defendant is] at risk of reoffending with a

sexual offense, contact or noncontact offense."    Similarly, Dr.

Belle testified that there was a "relative certainty" that the

defendant was likely to commit a sexual offense, but stated

categorically, "I'm not making a distinction of it's contact or

noncontact.   It's likely to commit a sexual offense."11

    This testimony was the result of the Commonwealth's

considered trial strategy.   On the morning of the fourth day of

trial, shortly before the Commonwealth concluded its case, the




    11 The Commonwealth's experts also testified that the
defendant had a pedophilic disorder, and that despite his age,
fifty-two, he had scored a "5" on the Static-99R test, which
equates to a "moderate-high" risk of reoffending. Dr. Belle
believed that the defendant's score underestimated his risk to
reoffend and that his limited treatment during his current
incarceration was insufficient to prevent him from committing
another sex offense.
                                                                    11


prosecutor moved to redact a statement from the report of the

defendant's expert, Dr. Joseph Plaud, that distinguished between

contact and noncontact offenses.   Citing Commonwealth v.

Almeida, 467 Mass. 1015 (2014), the prosecutor argued that the

requirement that the Commonwealth prove that predicted

noncontact sex offenses place a future victim in reasonable

apprehension of a contact sex offense applied only where the

defendant had a history of noncontact sex offenses alone.     The

defendant did not object, and the trial proceeded on this basis.

    The defense experts, Dr. Plaud, Dr. Leonard Bard, and Dr.

Angela Johnson, who served as a qualified examiner, parted

company with the Commonwealth's experts on the issue of

likelihood of reoffense.   All three experts characterized the

defendant's probationary terms of GPS monitoring, no access to

computers or Internet, and sex offender treatment as significant

protective factors that would prevent him from reoffending.

They opined that the decline in recidivism after age fifty,

coupled with the probationary conditions, meant that the

defendant was not sexually dangerous.

    In particular, Dr. Plaud testified that an offender who had

transitioned to noncontact-based offenses was unlikely to return

to committing contact offenses, stating, "Certainly I do not

believe he would be likely to reoffend with a contact based

offense and look again at his own behavior over a significant
                                                                    12


period of time.   The question more is, is he likely to engage in

non-contact based offending."   Dr. Plaud then concluded,

however, that the defendant was unlikely to reoffend in any way

because he had demonstrated in the past that he was able to

control his impulses once he had received consequences for his

behavior.

     At the conclusion of Dr. Plaud's testimony, the jurors asked

the judge to ask the following question, "[I]s watching or

having child porn considered sexually dangerous?"12   The judge

did not ask Dr. Plaud the question as the jury phrased it,

because the Commonwealth objected to any question that

distinguished between contact and noncontact offenses.13    Later

that day, the jury asked the judge to pose multiple questions

concerning the number of logins to the defendant's computer

containing images of child pornography, and whether the forensic

examiner could tell how recently and frequently the defendant

had viewed child pornography.


     12At the conclusion of each witness's testimony, the judge
permitted the jury to write down questions for him to ask the
witness.

     13The prosecutor objected to any question that
differentiated between contact and noncontact offenses. The
judge asked Dr. Plaud, on behalf of the jury, "What dangers, if
any are posed by a person having or watching child pornography?"
Dr. Plaud answered that child pornography harms and exploits
children, and that children are revictimized when it is
distributed.
                                                                  13


     5.    Jury instructions.   The judge instructed the jury in a

manner consistent with the model jury instruction.    See

Massachusetts Superior Court Criminal Practice Jury Instructions

§ 10.2 (2d ed. 2013).14   He stated, in part,

     "[T]he sole issue that you are called upon to decide is
     whether the [defendant], as of the present time, is a
     sexually dangerous person. Our legislature has defined a
     sexually dangerous person as follows, and I quote: 'Any
     person who has been convicted of a sexual offense and who
     suffers from a mental abnormality which makes that person
     likely to engage in sexual offenses if not confined to a
     secure facility.'"

With the assent of the parties, the judge defined "sexual

offense" "to include the possession of child pornography and to

include indecent assault and battery on a child under 14 years

of age."   The judge explained:

     "Now ladies and gentlemen, our law defines a sexual offense
     to include a variety of crimes, both contact crimes -- so-
     called -- and noncontact crimes. For example, indecent
     assault and battery on a child under 14 is a sexual
     offense. For example, possession of visual material
     depicting a child in a sexual manner is a sexual offense.

     "In determining whether the [defendant] is likely to commit
     future acts of sexual misconduct, you may consider his past
     sexual misconduct as a basis for projecting future conduct.
     You may consider and draw inferences from these past

     14This case was tried in August, 2015. The 2013 model jury
instructions, which are still in effect, predate Fay and Walker.
By the time of the trial in this case, the model instructions
for SDP cases under G. L. c. 123A, §§ 9 and 12, had been updated
to include a Suave instruction, but only "[i]f the petitioner
has a history of committing only noncontact sexual offenses not
involving children." Massachusetts Superior Court Criminal
Practice Jury Instructions, supra at § 10.1.4(c) n.1, at 10-18;
§ 10.2.3(c) n.1, at 10-35.
                                                                  14


    incidents of sexual misconduct to determine whether the
    Commonwealth has proven that the [defendant] today suffers
    from the psychological forces, conditions, problems, or
    root causes that led him to commit those earlier acts of
    sexual misconduct."

    The judge then defined mental abnormality to mean a

"congenital or acquired condition of a person that affects the

emotional or volitional capacity of the person in a manner that

predisposes that person to the commission of criminal sexual

acts to a degree that makes the person a menace to the health

and safety of other persons."   The model jury instructions did

not define "menace," and based on the earlier colloquies with

counsel, the judge did not define it further.

    During deliberations, the jury asked the judge several

questions.   In response to one question asked on the first day,

after just one-half hour of deliberation, the judge provided the

jurors with a copy of a select portion of G. L. c. 123A

containing a list of sex offenses. The next morning, after forty

minutes of deliberation, the jury asked:

    "In determining if [the defendant] is sexually dangerous,
    are we to base our decision on . . . if [the defendant]
    will reoffend by either contact or noncontact offenses,
    such as child pornography?

    . . .

    "Under the law   there are many types of offenses of sexual
    acts. Are all    these crimes listed . . . to be treated with
    the exact same   seriousness -- , equal, or are there degrees
    of seriousness   for each sexual offense?"
                                                                   15


At sidebar, the judge stated, "I have already provided the jury

with a list of the sexual offenses.   The law does not draw any

distinction among them."   After conferring with counsel, the

judge told the jury:

    "Briefly, you have asked me whether -- in determining
    whether -- if [the defendant] is a sexually dangerous
    person you are to base your decision on whether he would
    reoffend by either contact or noncontact offenses and in a
    similar vein asked whether all of the crimes listed, which
    I take to be a reference to the legal definition of sexual
    offenses I gave you yesterday, whether they're all to be
    treated with the same seriousness or whether they're all
    equal to one another."

The judge then reread his previous instruction regarding mental

abnormality, and the likelihood of committing a sexual offense.

He did not distinguish between contact and noncontact sexual

offenses, saying instead, "Ladies and gentlemen, the legal

definition of sexual offense, which I gave a copy of to you

yesterday, enumerates . . . a list of offenses.   Those offenses

include both so-called contact sexual offenses and noncontact

sexual offenses."

    6.   Motion for new trial.   The defendant's appeal from the

judgment was stayed while he filed a motion for new trial

claiming (among other things) that counsel was ineffective for

failing to cross-examine experts or request an instruction

regarding the Suave/Fay/Walker requirement that the commission

of a noncontact offense place a future victim in reasonable

apprehension of a contact sex offense.
                                                                    16


    Trial counsel supplied an affidavit and testified at the

hearing on the motion that he had not been sufficiently aware of

the Walker decision, or the impact that Suave, Fay, and Walker

could have had on the trial.    He testified, "There is no doubt

in my mind that if I were able to go back, I would definitely

request a Suave/Fay/Walker instruction; without a doubt."        Trial

counsel acknowledged that he was "much more aware . . . of the

rulings in those three cases now than [he] was at [the time of

trial]."   He also stated in his affidavit that he should have

corrected the Commonwealth's experts, "who testified that the

[SDP] statute did not differentiate between contact and non-

contact offenses."   Trial counsel did not articulate a strategic

or tactical reason for the omission, and testified that if he

had it to do over again he would have requested a

Suave/Fay/Walker instruction and would have argued to the jury

that there was no evidence of "objectively menacing conduct that

[would be] visible to the victims" of the noncontact offense of

viewing child pornography.

    The motion judge, who was not the trial judge,15 denied the

motion, finding that counsel's strategic choices were reasonable

for two principal reasons.     First, it was reasonable not to

focus on the underlying offense of possessing child pornography


    15   The trial judge had retired.
                                                                    17


because of the impact it could have on the jury.    Second, if

counsel had pressed the argument that the defendant's underlying

crime was a noncontact offense, the photographs themselves might

have come into evidence.

     Discussion.   1.    Ineffective assistance of counsel.   "We

review the denial of a motion for a new trial only to determine

whether there has been a significant error of law or other abuse

of discretion" (quotation omitted).    Commonwealth v. Sullivan,

469 Mass. 621, 629 (2014).    "To prevail on a motion for a new

trial claiming ineffective assistance of counsel, a defendant

must show that there has been a 'serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer,' and that counsel's poor performance

'likely deprived the defendant of an otherwise available,

substantial ground of defence.'"    Commonwealth v. Millien, 474

Mass. 417, 429–430 (2016), quoting Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).16    "A strategic or tactical decision by


     16We apply the prejudice standard articulated in
ineffective assistance of counsel cases arising in the criminal
context. See R.B., petitioner, 479 Mass. 712, 717-718 (2018)
("Given the fundamental liberty interest at stake in sexual
dangerousness proceedings . . . we apply the same standard
governing criminal cases"). See also Commonwealth v. George,
477 Mass. 331, 335 n.3 (2017). The Supreme Judicial Court has
defined prejudice in ineffective assistance claims in civil
cases as "a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have
                                                                   18


counsel will not be considered ineffective assistance unless

that decision was 'manifestly unreasonable' when made."

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting

Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

     Here, trial counsel's conduct, i.e., the failure to request

an instruction in keeping with Suave, Fay, and Walker, fell

measurably below what is expected of an ordinary fallible

lawyer.   There was a significant body of evidence that the

defendant had chosen to look at child pornography in order to

avoid engaging in contact sex offenses.   Defense counsel was

unfamiliar with the law, and agreed with the Commonwealth that

G. L. c. 123A did not distinguish between contact and noncontact

offenses when determining the likelihood of reoffense.    He did

not ask the judge to define "menace," in the context of

noncontact offenses, to mean conduct that would render a future

victim reasonably apprehensive of a contact sex offense.17    "As a

consequence, the [instruction] did not properly set forth each

essential element" of the statute.   Commonwealth v. Loadholt,



been different" (quotation omitted). Poe v. Sex Offender
Registry Bd., 456 Mass. 801, 813 (2010). Both standards are
functionally the same. See id. ("In declaring the term
'prejudice' better suited to noncriminal cases, our intent is
not to change materially the second prong of the Saferian
standard"). See also Doe, Sex Offender Registry Bd. No. 209081
v. Sex Offender Registry Bd., 478 Mass. 454, 460 n.10 (2017).

     17As the motion judge found, counsel was an experienced
lawyer who otherwise vigorously tried the case.
                                                                   19


456 Mass. 411, 427, vacated on other grounds and remanded, 562

U.S. 956 (2010).   Cf. Commonwealth v. Taranovsky, 93 Mass. App.

Ct. 399, 405-407 (2018).

     Here, there was no evidence at trial that the defendant

created or produced child pornography, showed child pornography

to any child, or used child pornography to entice, lure,

approach, groom, or assault his victims.   As a result of the

erroneous instruction, the jury were repeatedly instructed that

they could find the defendant to be a sexually dangerous person

based solely on the possession of child pornography, facts

which, on this record, do not support an SDP finding.    See

Walker, 467 Mass. at 1018.   Although the judge relied on the

model jury instruction, in the wake of Walker and Fay, and the

evidentiary void at trial, defense counsel's failure to request

an instruction regarding the legal definition of "menace" as

applied to noncontact offenses cannot be characterized as a

reasonable tactical decision.   See Taranovsky, supra.

     The motion judge concluded, and the Commonwealth argues,

that trial counsel's "all or nothing" strategy was reasonable

because, among other things, it was designed to avoid offending

the jury by rejecting any suggestion that the defense was

downplaying the seriousness of possession of child pornography.18


     18The motion judge also concluded that defense counsel made
a reasonable strategic decision because he would run the risk of
                                                                  20


Passing on whether it would have been reasonable for defense

counsel to pursue an all or nothing defense (had defense counsel

been cognizant of the law), counsel's options were not mutually

exclusive.   He was free to argue one theory to the jury and

"leave the discussion of the law to the judge."     Commonwealth v.

Callahan, 401 Mass. 627, 636 (1988).   Moreover, whatever

viability the all or nothing defense initially may have had, it

eroded with the jury's first proposed question to the expert,

asking if possession of child pornography means that a person is

sexually dangerous.   It further eroded when the Commonwealth

rested without putting on evidence (other than a generalized

reference to sexual deviancy) that the defendant would use child

pornography in such a way as to place a future victim in

reasonable apprehension of a contact sex offense.    The all or

nothing defense crumbled upon receipt of the pointed questions

of the deliberating jurors, specifically asking if possession of

child pornography alone could render the defendant a sexually



having the trial judge reconsider his decision to exclude the
photographs themselves if counsel argued that the defendant
might look at child pornography, but would not place any person
in reasonable apprehension of a contact offense while doing so.
It is unclear how the assertion of this defense would change the
trial judge's calculus of the prejudicial impact of the
photographs themselves, as opposed to testimony describing the
photographs. Leaving that question to one side, the matter was
resolved on a motion in limine before trial. The issue was
capable of resolution in the same manner had Walker and Fay been
raised, thereby obviating the risk.
                                                                  21


dangerous person.   Counsel's failure to request an instruction

defining "menace" in the context of noncontact offenses

"withdr[ew] from the jury . . . consideration of the issue

. . . , [and] left his client denuded of [that] defense"

(quotation omitted).   Id.19

    The Commonwealth also maintains that the noncontact offense

of child pornography must be viewed differently from other

noncontact offenses because, as the motion judge had observed,

the preamble to G. L. c. 272, § 29C, provides, "[T]he mere

possession or control of any sexually exploitative material

results in continuing victimization of children as such material

is a permanent record of an act or acts of sexual abuse or

exploitation of a child and . . . each time such material is

viewed the child is harmed."   St. 1997, c. 181, § 1.   The

Commonwealth points to the harm caused to the victims of child

pornography, who live with the knowledge that images of their

abuse are in circulation and viewed by countless unknown

individuals for purposes of deviant sexual gratification.




    19 The defendant also maintains that counsel was ineffective
because he failed to correct the experts when they testified
that there was no difference between contact and noncontact
offenses in determining sexual dangerousness, and because he
failed to argue the Walker, Fay issue in his opening statement
and closing arguments. We need not reach these issues in view
of our disposition.
                                                                   22


       This case does not deal with the appropriate penalty for

the crime of possession of child pornography, which is set by

the Legislature.   Rather, this case concerns the separate

question whether possession of child pornography meets the

statutory test for determining whether an offender is a sexually

dangerous person who may be involuntarily civilly committed for

a period of a day to life.    See G. L. c. 123A, § 14 (d).    In

defining the contours of our SDP statute, the Supreme Judicial

Court has been highly sensitive to the constitutional

limitations on the civil commitment of individuals deemed

sexually dangerous.    See Fay, 467 Mass. at 583-586, citing,

inter alia, Kansas v. Hendricks, 521 U.S. 346 (1997).       As a

result, the case law has developed to distinguish between

"contact sex offenses," such as rape and indecent assault and

battery, and "noncontact sex offenses," such as indecent

exposure.   For a person to be found an SDP based on noncontact

sex offenses, the jury must be convinced that his predicted

conduct places a future victim in "reasonable apprehension of

being subjected to a contact sex crime."    Suave, 460 Mass. at

588.

       This requirement has also been applied to offenses

involving children.    See Fay, 467 Mass. at 585-586 ("[W]e do not

need to define the outer contours of what either the Federal or

Massachusetts Constitution would permit . . . .    An individual
                                                                 23


who is likely to engage in noncontact sexual offenses directed

at children in a manner that would place them in reasonable

apprehension of being the victim of a contact sexual offense

plainly engages in conduct dangerous to their health, safety,

and well-being.   Protecting children from exposure to such

conduct . . . falls well within constitutional boundaries").

Although the possession of child pornography causes continued

harm to the victim, we cannot say, as matter of law, that

possession alone necessarily places that victim in reasonable

apprehension of a future contact sex offense; it therefore does

not, in and of itself, satisfy the definition of the statutory

term "menace" as interpreted by the Supreme Judicial Court.     See

Suave, 460 Mass. at 587-588.20




     20We acknowledge that "[t]he prevention of sexual
exploitation and abuse of children constitutes a government
objective of surpassing importance." Fay, 467 Mass. at 586,
quoting New York v. Ferber, 458 U.S. 747, 757 (1982). The
parties have not cited, and we have not found, any authority
holding that a defendant may be found to be an SDP solely based
on viewing child pornography. The Federal SDP statute requires
the government to establish a likelihood of sexually violent
conduct in the future. The subsequent Federal cases rely on the
use of child pornography as some evidence that the defendant
will engage in "sexually violent conduct or child molestation if
released." United States v. Volungus, 730 F.3d 40, 46 (1st Cir.
2013), quoting the Adam Walsh Act, 18 U.S.C. §§ 4247(a)(5)-(6),
4248(d) (2006). See Volungus, supra at 47-49. State cases
treat the possession of child pornography in a similar manner.
See, e.g., In re Civil Commitment of Crosby, 824 N.W.2d 351, 359
(Minn. Ct. App. 2013); In re Detention of Thorell, 149 Wash. 2d
724, 759 (2003), cert. denied, 541 U.S. 990 (2004).
                                                                      24


    It remains to decide whether the defendant was prejudiced

by counsel's error.    "Prejudice in this context means that the

defendant has likely been deprived of an 'available, substantial

ground of defence.'"    Millien, 474 Mass. at 430–431, quoting

Saferian, 366 Mass. at 96.       A defense is "'substantial' . . .

where we have a serious doubt whether the jury verdict would

have been the same had the defense been presented."      Millien,

supra at 432.   Prejudice in this sense is equivalent to a

determination that there has been a substantial risk of a

miscarriage of justice.    Id.

    The jury returned a general verdict.       The jury's questions

suggest that they considered whether the noncontact offenses

alone were sufficient to find the defendant a sexually dangerous

person.    A verdict based on a finding that the defendant likely

would engage in a contact offense may be sustained, but for the

reasons stated, a verdict based on a finding that the defendant

was likely to possess child pornography, without more, would

require reversal.     Walker, 467 Mass. at 1018.

    The evidence pointing to future contact offenses was

sufficient, as discussed in part 2, infra, but not overwhelming.

The defendant had not committed a contact offense in over two

decades.    The jury could have found that he was an untreated

pedophile who would engage in contact offenses in the future if

he could not rely on child pornography as an outlet, but the
                                                                    25


jury were also permitted to find that he would continue to use

child pornography in the future rather than engage in a contact

offense, as he had for two decades.     The Commonwealth's theory

of the case was that either was enough.    The prosecutor

repeatedly argued that the defendant could be found an SDP based

on any sexual offense, which the instructions defined to include

the possession of child pornography alone.

    "[W]here error pertains to the definition given to the jury

of the crime charged, the possibility of a substantial risk of a

miscarriage of justice is inherent" (quotation omitted).

Commonwealth v. Stoltz, 73 Mass. App. Ct. 642, 644 (2009).      See

Taranovsky, 93 Mass. App. Ct. at 407.     Similarly, when the

instructional error pertains to the definition of "menace" given

to the jury, we are left with a serious doubt whether the jury

verdict would have been the same had the correct instruction

been given, particularly where, as here, there was no evidence

of a history of noncontact offenses that would put a future

victim in reasonable apprehension of a contact sexual offense.

On this basis, the defendant is entitled to a new trial.

    2.   Sufficiency of the evidence.     The defendant maintains

that the evidence was insufficient to prove beyond a reasonable

doubt that he was a menace within the meaning of the statute.

We review the evidence in the light most favorable to the
                                                                   26


Commonwealth.   See Commonwealth. v. Cahoon, 86 Mass. App. Ct.

266, 268 (2014).

    The evidence supported a finding that the defendant is a

"menace," as defined in Suave, based on the likelihood of

committing a contact offense.   The defendant admitted to

committing contact sex offenses over a period of thirteen years,

against nine different children.   The defendant argues that he

has not committed a contact offense in over twenty-two years and

is therefore unlikely to commit one if released.   However,

"[t]he law is clear that the lapse of time [since the

defendant's last contact sex offense], by itself, is not

dispositive."   Souza, petitioner, 87 Mass. App. Ct. 162, 171

(2015).

    Moreover, the defendant admitted that he has used child

pornography, claiming that its use as "therapy" has kept him

from approaching children.   In response to a question from the

jury, Dr. Belle agreed that the defendant had "[no] other

adequate coping skills or mechanisms."   In addition, both Dr.

Belle and Dr. Rouse-Weir testified that the viewing and

collection of child pornography fueled the defendant's deviant

arousal toward children.   The jury were permitted to credit the

experts' testimony.   The jury also were permitted to credit Dr.

Rouse-Weir's testimony that the defendant has demonstrated a

longstanding deviant sexual interest in prepubescent boys and
                                                                  27


girls that has continued into his early fifties, and Static-99R

test results that indicated he has a moderate-high risk of

reoffense.   The evidence was sufficient as to the likelihood of

committing a contact sex offense in the future.

    Conclusion.    The judgment is reversed, and the verdict is

set aside.   The order denying the motion for new trial is

reversed.

                                   So ordered.
