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15-P-568                                             Appeals Court

                COMMONWEALTH   vs.   WILLIAM BRADSHAW.


                            No. 15-P-568.

      Suffolk.        November 6, 2017. - November 14, 2018.

           Present:   Agnes, Maldonado, & McDonough, JJ.


Constitutional Law, Sex offender, Self-incrimination. Due
     Process of Law, Sex offender. Evidence, Sex offender,
     Prior misconduct. Practice, Civil, Sex offender. Sex
     Offender.




     Civil action commenced in the Superior Court Department on
September 13, 2013.

    The case was tried before Brian A. Davis, J.


     Joseph M. Kenneally for the defendant.
     Darcy A. Jordan, Assistant District Attorney (Nicole A.
Poirier, Assistant District Attorney, also present) for the
Commonwealth.


    AGNES, J.    Following a jury trial, the defendant, William

Bradshaw, was found to be a "sexually dangerous person."    See

G. L. c. 123A, §§ 1, 12, 14.    In accordance with the statute,
                                                                   2


the judge committed the defendant to the Massachusetts Treatment

Center (treatment center) for an indeterminate period of from

one day to life.

    This appeal followed and requires us to determine whether

the judge erred in allowing the Commonwealth to call a witness

who testified to instances of uncharged sexual misconduct

committed against her by the defendant.   For the reasons that

follow, we conclude that such evidence was admissible because it

was relevant, it did not violate restrictions on the use of

character evidence, and its probative value far outweighed any

danger of unfair prejudice.

    Background.    In September, 2013, the district attorney

filed a petition to civilly commit the defendant as a sexually

dangerous person pursuant to G. L. c. 123A, § 12, based on the

defendant's prior adjudications of delinquency and his numerous

convictions of sexual offenses.   See Commonwealth v. MacLeod,

437 Mass. 286, 290-291 (2002) (describing process pursuant to

G. L. c. 123A, § 12 (b), by which appropriate district attorney

is notified six months in advance of release from custody of

person serving sentence for any one of enumerated sexual

offenses, and opportunity that said prosecutor has to determine

whether prisoner is likely to be sexually dangerous, and, if so,

to file petition in Superior Court alleging that prisoner is

sexually dangerous, along with sufficient facts to support
                                                                   3


same).   The filing of a petition by the district attorney under

G. L. c. 123A, § 12 (b), triggers a probable cause hearing, see

G. L. c. 123A, § 12 (c),1 which, in turn may lead to a trial.

See G. L. c. 123A, § 14.   See Commonwealth v. Gross, 447 Mass.

691, 693-694 (2006).

     In order to prove that a person is a "sexually dangerous

person," the Commonwealth must establish, by the standard of

proof beyond a reasonable doubt, that the person was "convicted

of or adjudicated as a delinquent juvenile or youthful offender

by reason of a sexual offense and who suffers from a mental

abnormality or personality disorder which makes the person

likely to engage in sexual offenses if not confined to a secure

facility."   G. L. c. 123A, § 1.   In the present case, the

Commonwealth presented evidence at trial of the defendant's

adjudications and convictions, which consisted of a 1999

juvenile commitment for indecent assault and battery on a child




     1 "At a probable cause hearing conducted pursuant to G. L.
c. 123A, § 12 (c), the judge is to conduct 'a two-part inquiry,
one quantitative and the other qualitative. The judge must be
satisfied, first, that the Commonwealth's admissible evidence,
if believed, satisfie[s] all of the elements of proof necessary
to prove the Commonwealth's case. Second, she must be satisfied
that the evidence on each of the elements is not so incredible,
insubstantial, or otherwise of such a quality that no reasonable
person could rely on it to conclude that the Commonwealth had
met its burden of proof.'" Commonwealth v. Fusi, 91 Mass. App.
Ct. 901 (2017), quoting Commonwealth v. Reese, 438 Mass. 519,
524 (2003).
                                                                   4


under the age of fourteen2 and two 2012 convictions for rape of a

child and indecent assault and battery on a child under the age

of fourteen.3   Each of the three victims in these cases were

prepubescent girls (ages three, six, and eight) who were

relatives of the defendant.

     Both qualified examiners diagnosed Mr. Bradshaw with

pedophilia and antisocial personality disorder.   They also stated

that the existence of these disorders contributed to their

conclusions that he suffers from a mental abnormality4 and a

personality disorder,5 as defined in G. L. c. 123A, § 1.    Doctors




     2 This charge was the result of a 1998 incident when Mr.
Bradshaw was sixteen years of age. Mr. Bradshaw and his niece,
referred to as "D," were in the bathroom when the child’s mother
saw him wiping what she believed to be semen off of the child,
who was seated with her underwear down and her dress up. The
child said that the defendant licked her vagina and rubbed his
penis against her until he ejaculated.

     3 The 2012 convictions involved two separate incidents with
different victims. In 2005, the defendant touched his eight
year old cousin, referred to as "N," on her vagina on two
occasions while they played video games. In 2009, while the
defendant's mother was also home, the defendant took off his
daughter's clothes and covered her mouth, telling her to be
quiet as he raped her.

     4 A mental abnormality is defined as "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." G. L. c. 123A, § 1.
                                                                    5


Johnson and Belle testified that Mr. Bradshaw had not

sufficiently progressed in treatment, had not come to understand

his offending behavior, and was likely to reoffend sexually if

released from confinement.   Dr. Katrin Rouse-Weir, who testified

on behalf of Mr. Bradshaw, concluded that he was not sexually

dangerous.   She testified that though Mr. Bradshaw suffered from

pedophilia and antisocial personality disorder, which satisfied

the statutory definitions of mental abnormality and personality

disorder, he was unlikely to reoffend.   The two other qualified

examiners testified that Mr. Bradshaw was not of advanced age and

did not suffer from poor health, factors that are both associated

with lower risks of reoffending.   They also noted that Mr.

Bradshaw has struggled with substance abuse which, left

unaddressed, may diminish inhibitions related to offending.

     Prior to trial, B.B., who also was related to the

defendant, spoke with a prosecutor and an investigator and

recounted the sexual abuse perpetrated against her by the

defendant while she was between the ages of five and eleven,

which spanned the years 1995-2001.6   B.B.'s pretrial statements,




     5 A "personality disorder" is defined as "a congenital or
acquired physical or mental condition that results in a general
lack of power to control sexual impulses." G. L. c. 123A, § 1.

     6 The Commonwealth chose not to prosecute the defendant
based on the allegations made by B.B.
                                                                       6


which mirror her trial testimony in all material respects, were

subsequently memorialized in a report that was provided to the

defendant prior to the trial and submitted to the qualified

examiners assigned to the case.     The defendant filed a pretrial

motion to exclude B.B.'s testimony for a number of reasons,

including a claim that it would force the defendant to waive his

privilege against self-incrimination, and that such evidence was

prejudicial, irrelevant, and cumulative.        The judge denied the

motion.

    At trial, both qualified examiners testified that B.B.'s

statements constituted further evidence of the defendant's

sexual attraction to prepubescent girls.        In particular, these

experts testified that the defendant's criminal acts committed

against B.B. were evidence of the "persistence of his deviant

sexual arousal toward prepubescent girls" (Dr. Johnson) and

"another indicator of his inability to control his sexual

impulses" (Dr. Belle).     The jury ultimately found beyond a

reasonable doubt that the defendant was a sexually dangerous

person.     He was committed to the Bridgewater State treatment

center for an indefinite period ranging from one day to life.

    Discussion.      1.   Evidentiary issues.    Much of the

defendant's argument why B.B.'s testimony should not have been

admitted at trial is mistakenly focused on G. L. c. 123A,

§ 14 (c).    Specifically, the defendant argues that § 14 (c) does
                                                                   7


not authorize the admission of evidence of uncharged criminal

conduct.   The statute reads as follows:

     "Juvenile and adult court probation records,
     psychiatric and psychological records and reports of
     the person named in the petition, including the report
     of any qualified examiner, as defined in section 1,
     and filed under this chapter, police reports relating
     to such person's prior sexual offenses, incident
     reports arising out of such person's incarceration or
     custody, oral or written statements prepared for and
     to be offered at the trial by the victims of the
     person who is the subject of the petition and any
     other evidence tending to show that such person is or
     is not a sexually dangerous person shall be admissible
     at the trial if such written information has been
     provided to opposing counsel reasonably in advance of
     trial."

     In Commonwealth v. Markvart, 437 Mass. 331, 333-334 336

(2002), the Supreme Judicial Court held that a defendant must be

convicted or adjudicated delinquent of the crime underlying a

police report or witness statement as a precondition of its

admissibility in evidence during a trial on a sexually dangerous

person petition.7   The defendant attempts to use the statutory

language of § 14 (c), and the Court's holding in Markvart to

argue that B.B.'s testimony was improperly admitted in evidence


     7 This general rule has since been tempered by other
opinions of this court and the Supreme Judicial Court. See
Commonwealth v. Given, 441 Mass. 745-746 (2004) (statement of
uncharged conduct in police report admissible in sexually
dangerous person proceeding as it was "unambiguously 'relat[ed]
to'" circumstances of victim's abuse that resulted in guilty
plea); Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 333
(2007) (uncharged conduct in follow-up report by police
admissible where it related to sexual offense of which defendant
was ultimately convicted).
                                                                    8


at trial because her testimony recounted sexual misconduct that

did not result in a conviction.    The defendant's argument is

unpersuasive.

    As its plain language suggests, § 14 (c) is a statutory

exception to the hearsay rule that "enumerates several

categories of specifically admissible evidence," Commonwealth v.

Given, 441 Mass. 741, 744 (2004), that would otherwise be

inadmissible hearsay.   See McHoul, petitioner, 445 Mass. 143,

147 (2005); Given, supra; Markvart, supra at 335-336.    See also

Mass. G. Evid. § 1103 (b) (1) (2018).    B.B. provided live-

witness testimony based on her direct experience and, as such,

her testimony was not hearsay and was not affected by § 14 (c).

See Mass. G. Evid. § 801 (2018).

    Although the defendant was never charged with a crime based

on B.B.'s allegations, the limitation placed on the

admissibility of witness statements and police reports by the

court in Markvart does not limit a witness's ability to testify

about uncharged sexual misconduct during a trial on a sexually

dangerous person petition.   Indeed, in Markvart, 437 Mass. at

337, the Court, in its discussion as to whether the material

from a nol prossed case could form the basis of a qualified

examiner's opinion, explained:    "The fact that a prior charge

was nol prossed does not mean that the underlying information on

which the charge was predicated has become inherently
                                                                      9


inadmissible.     For example, the complaining witness in the nol

prossed case would still be allowed to testify, as would any of

the other witnesses who could have testified if that case had

gone to trial."    Here, B.B. did just that.

    We now turn to the question of whether B.B.'s testimony,

which was not admitted pursuant to a particular statutory

exception to our common law of evidence, was properly admitted.

The defendant's objection is framed in terms of due process and

is based on two principal arguments.     First, the defendant

contends in general terms it is fundamentally unfair to impose

on him a burden to defend against allegations of criminal

activity for which he was neither charged nor convicted and that

are alleged to have occurred over twenty years before his trial.

This argument, in turn, calls for a consideration of the

probative value of the evidence weighed against its potential

for unfair prejudice.     B.B.'s testimony was highly probative and

its evidential value was not substantially outweighed by the

danger of unfair prejudice.     See Mass. G. Evid. § 403 (2018).8


    8  Because the definition of a sexually dangerous person
under G. L. c. 123A, § 1, requires the Commonwealth to prove
that there is a likelihood that the defendant will reoffend in
the future if he is not confined to a secure facility, and all
the experts who testified at trial were in agreement that the
defendant suffered from pedophilia, evidence that the defendant
committed sexual assaults against children other than those that
resulted in his conviction was inherently relevant and probative
on the question of the likelihood of reoffending in the future.
As the Virginia Supreme Court recently observed in a civil
                                                                 10


    In a proceeding requiring the Commonwealth to prove that

the defendant was sexually dangerous if released into society,

the probative value of B.B.'s testimony was significant because,

as the qualified examiners testified, it further evinced the

defendant's inability to control his sexual impulses and his

deviant arousal.   B.B. testified that she was sexually assaulted

from the mid-1990s until approximately 2001, and the defendant

was convicted or adjudicated delinquent of other sexual offenses

occurring between 1998 and 2009.   The defendant's conduct set



commitment proceeding, evidence that a defendant committed
sexual offenses against persons that did not result in criminal
charges is not an improper use of character evidence, see Mass.
G. Evid. § 404 (a) (1) (2018), because the central question
before the court is not whether the defendant committed those
other offenses. "Rather, it is whether, because of a mental
abnormality or personality disorder, he finds it difficult to
control his predatory behavior, which makes him likely to engage
in sexually violent acts in the future." Commonwealth v.
Proffitt, 292 Va. 626, 640 (2016). Because the expert witnesses
in the present case testified that not only did the defendant
suffer from a mental abnormality and a personality disorder, but
that he was unable to control his deviant sexual impulses, it
cannot be said that the defendant's commitment rests solely on
proof of his bad character. See Kansas v. Hendricks, 521 U.S.
346, 357 (1997) (civil commitment cannot be based on "a mere
predisposition to violence; rather, it requires evidence of past
sexually violent behavior and a present mental condition that
creates the likelihood of such conduct in the future if the
person is not incapacitated"). See also Commonwealth v. George,
477 Mass. 331, 336 (2017) (Massachusetts law does not permit
indefinite commitment of people because they are diagnosed as
having psychiatric or psychological condition). Finally, the
balancing test that is applicable under Mass. G. Evid. § 403 is
the traditional one that calls for exclusion of relevant
evidence only when its probative value is "substantially
outweighed" by the danger of unfair prejudice. Contrast
Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014).
                                                                    11


forth in B.B.'s testimony was thus not too remote in time to the

other crimes of which the defendant was convicted or adjudicated

delinquent so as to render B.B.'s testimony unfairly

prejudicial.9

     The defendant was given timely notice that B.B. would

testify, and was aware of the substance of her testimony.     The

defendant also had the opportunity to cross-examine B.B. and

expose any weaknesses in her testimony.   He chose not to do so.

The jury were also adequately instructed that it was to

determine the credibility of the witnesses who testified at

trial and the weight that any particular witness's testimony

should be given.

     The second aspect of the defendant's due process argument

is that the introduction of B.B.'s testimony unlawfully burdened

his decision to testify in his own defense.   The defendant

asserts that, if he had testified at trial, he would have been

placed in the position of choosing between two undesirable

options:   he could have asserted before the jury his right

against self-incrimination under the Fifth Amendment to the


     9 The defendant further argues that the qualified examiners
improperly considered a report that mirrored B.B.'s testimony,
discussed supra, in concluding that the defendant was a sexually
dangerous person. This argument is unavailing. The qualified
examiners properly relied on the report, as the facts contained
therein were admitted at trial through B.B.'s testimony. See
Markvart, 437 Mass. at 336-337, citing Department of Youth
Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).
                                                                   12


United States Constitution with respect to the misconduct

underlying B.B.'s testimony, or, alternatively, he could have

challenged B.B.'s claims knowing that his testimony could

subject him to criminal liability; the defendant ultimately did

not testify at trial.

    The defendant's argument is unavailing as he cites no

authority to support his contention.     The prohibition against

self-incrimination applies in civil proceedings, such as those

brought pursuant to G. L. c. 123A, § 12, where the defendant's

testimony may give rise to "future criminal proceedings."

Commonwealth v. Hunt, 462 Mass. 807, 811-812 (2012).     The

parties do not dispute that the defendant could have been

subjected to criminal liability based on B.B.'s testimony.

However, the defendant depicts his choice as one between

testifying and exposing himself to cross-examination with

reference to a matter that could result in a future criminal

prosecution or not testifying at all.     There was another option.

The defendant could have sought a ruling that he would not have

to assert his privilege against self-incrimination in front of

the jury unless he testified about B.B.'s allegations on direct

examination.    The judge could then have then ruled on the

defendant's assertion of the privilege outside the presence of

the jury.    See Commonwealth v. Fischer, 433 Mass. 340, 349-350

(2001).     If the judge determined that there was a valid basis
                                                                    13


for asserting the privilege to questions relating to B.B.'s

testimony, the Commonwealth could have been prevented from

questioning the defendant about the allegations set forth by

B.B.

       Conclusion.   For the above reasons, evidence of uncharged

criminal conduct similar in nature to the conduct described in

the predicate offenses and alleged to have occurred close in

time to the acts that make up the predicate offenses is

admissible in a proceeding to determine whether the defendant is

a sexually dangerous person because it is relevant and probative

on the question of the defendant's likelihood of reoffending and

any danger of unfair prejudice can be avoided by appropriate

instructions to the jury.

                                      Judgment affirmed.
