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Commonwealth v. Riz

Appeals Court of Massachusetts, Bristol

August 12, 2016

COMMONWEALTH
v.
JOSE RIZ.

          Heard: March 9, 2016.

         Indictments found and returned in the Superior Court Department on July 21, 2011.

         The cases were tried before Gary A. Nickerson, J.

          James A. Reidy for the defendant.

          Corey T. Mastin, Assistant District Attorney, for the Commonwealth.

          Present: Cypher, Cohen, & Neyman, JJ.

          NEYMAN, J.

         In this case, we consider whether a probation condition that the defendant, Jose A. Riz, not "minimize" his criminal activity "during his sex abuse treatment ... in his contact with church authorities . . . [and] in dealing with [his] probation officer" is unconstitutionally vague. We hold that the condition does not provide reasonable guidance with respect to what conduct is prohibited, and therefore violates the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution.[1]

         Background.

         In 2010 and 2011, the defendant lived at his brother's apartment, along with his brother and his brother's oldest daughter (the victim, who was also the defendant's niece). During this timeframe, the defendant had sexual contact with the victim on multiple occasions, including vaginal, anal, and oral sex. The victim was thirteen and fourteen years old at the time, while the defendant was eighteen and nineteen years old. The final instance of abuse occurred on May 8, 2011. That night, the defendant, who had consumed alcohol and smoked marijuana, pulled the victim into his room, undressed her, lay on top of her, and touched her vagina with his penis. The defendant's brother discovered the victim leaving the defendant's room, and the victim subsequently told her mother of her sexual relationship with the defendant. The defendant was arrested, and, during an interview with the police, confessed to having had sex with the victim on more than one occasion. The defendant was indicted for statutory rape, G. L. c. 265, § 23; incest, G. L. c. 272, § 17; and assault of a child under the age of sixteen with intent to commit rape, G. L. c. 265, § 24B.[2] At his jury trial in the Superior Court, the defendant testified that he was drunk on the night of May 8, denied having any sexual contact with the victim, and claimed that his confession was the product of his intoxication. The jury convicted the defendant on all counts.

         At sentencing, defense counsel told the judge, inter alia, that the defendant was from Guatemala, had developed some alcohol and marijuana problems, and had ongoing and strong involvement with his church. She further advised that the defendant had grown up in a different culture, and that "there is a certain amount of early sexual activity that goes on in the area of the world where he comes from. . . . That is what he was familiar with." The judge was also informed that the defendant had been rearrested, during the pendency of this case, for an incident involving a prostitute. Finally, the judge observed or otherwise gleaned that several of the victim's family members had pressured the victim not to testify and had glared at the victim during the sentencing proceedings.

         The judge sentenced the defendant to concurrent prison terms of not less than four nor more than seven years for the statutory rape and incest convictions, and a concurrent sentence of ten years' probation for the conviction of assault of a child under the age of sixteen with intent to commit rape. The terms of probation contained various special conditions, including sex offender counseling, no unsupervised contact with minor children, and no employment or performance of volunteer activities "that puts [the defendant] into contact with minor children on a regular basis." The judge further ordered that the defendant was "not to minimize [his] crimes during treatment with church activities or with probation." The judge sought to clarify this condition by stating:

"In other words, [the defendant is] not to minimize his crimes involving [the victim] or his involvement with the prostitute during his sex abuse treatment.
"He's also not to minimize his criminal activity in his contact with church authorities -- I can't believe the church would knowingly put him with children if they knew the extent of his criminal involvement -- and he's not to minimize his criminal involvement in dealing with the probation officer."

         The defendant now appeals, claiming that the probation condition that he is "not to minimize his crimes" violates due process and the First ...


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