Heard: January 8, 2018
action commenced in the Superior Court Department on November
case was tried before Robert C. Cosgrove, J.
J. Cipoletta for the defendant.
Christina L. Crowley, Assistant District Attorney, for the
Present: Blake, Neyman, & Ditkoff, JJ.
a Superior Court jury trial on the Commonwealth's
petition pursuant to G. L. c. 123A, § 12(b), the
defendant, Lucas Ortiz, was found to be a sexually dangerous
person (SDP) as defined by G. L. c. 123A, § 1, and was
ordered committed to the Massachusetts Treatment Center. On
appeal, the defendant claims that the trial judge improperly
excluded the results of a penile plethysmograph (PPG) exam
conducted by his retained expert. Concluding that the PPG was
subject to assessment for reliability under
Commonwealth v. Lanigan, 419 Mass.
15, 26 (1994), and that the judge acted within his discretion
in finding that the defendant failed to show that the absence
of deviant arousal on the PPG as conducted by the examining
expert is a reliable basis for diagnosis or predictions of
future sexual dangerousness, we affirm.
time of trial, the defendant was thirty-nine years old. In
1992, when the defendant was seventeen years old, he was a
member of a Boy Scout troop. During this time, he committed
sexual offenses against four younger Boy Scouts who were
between the ages of eleven and thirteen years old. During
each of the offenses, the defendant told the child that he
had a son who was taken by kidnappers and that his son's
release would be facilitated by the child having sexual
intercourse with the defendant. In one of the offenses, the
defendant threatened the boy with a knife. In 1993, the
defendant committed an additional sexual offense against a
twelve year old boy using the ruse of conducting a physical
exam of the child as a condition to becoming a member of a
result of these offenses, the defendant was convicted of
multiple counts of rape of a child and indecent assault and
battery on a child, and one count of assault by means of a
dangerous weapon. He was incarcerated for two years, and in
1995 he was released on probation. As a condition of his
probation, the defendant was ordered to have no unsupervised
contact with individuals under the age of eighteen.
six months of his release from incarceration, the defendant
befriended a fifteen year old boy. While alone in a car with
the boy, the defendant demanded that the boy perform oral sex
on him, and threatened him at knifepoint. The defendant was
found to have violated his probation on the earlier offenses,
and ultimately was convicted of indecent assault and battery,
assault and battery, and assault by means of a dangerous
weapon. The defendant continued to be incarcerated through
2012, at which time the Commonwealth filed the instant
petition in anticipation of his release from custody.
to G. L. c. 123A, § 13 (a.), the defendant was examined
by two qualified examiners. Each of the examiners prepared
reports opining that the defendant was sexually dangerous
pursuant to the statute and likely to reoffend sexually. The
qualified examiners each diagnosed the defendant with
pedophilia, as well as other sexual and personality disorders
relevant to his likelihood of reoffending.
defendant was also examined by two experts retained by him. A
psychologist specializing in neuropsychology examined the
defendant and opined that he suffered from no diagnosable
mental illness. A second psychologist, Dr. Joseph Plaud,
opined that the defendant could not be diagnosed with a
sexually-based mental disorder or personality disorder.
Plaud's opinion relied in part on his examination of the
defendant using a PPG. He reported that when examined, the
defendant displayed sexual arousal to adult consensual sexual