Heard: March 9, 2016.
found and returned in the Superior Court Department on July
cases were tried before Gary A. Nickerson, J.
A. Reidy for the defendant.
T. Mastin, Assistant District Attorney, for the Commonwealth.
Present: Cypher, Cohen, & Neyman, JJ.
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.
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, §
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.
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.
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
defendant now appeals, claiming that the probation condition
that he is "not to minimize his crimes" violates
due process and the First ...