Commonwealth v. Torres

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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.