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Commonwealth v. Ortiz

Appeals Court of Massachusetts, Plymouth

June 13, 2018

COMMONWEALTH
v.
LUCAS ORTIZ.

          Heard: January 8, 2018

         Civil action commenced in the Superior Court Department on November 20, 2012.

         The case was tried before Robert C. Cosgrove, J.

          James J. Cipoletta for the defendant.

          Christina L. Crowley, Assistant District Attorney, for the Commonwealth.

          Present: Blake, Neyman, & Ditkoff, JJ.

          DITKOFF, J.

         Following 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.

         Background.

         At the 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 gang.

          As 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.

         Within 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.[1] 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.

         Pursuant 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.

         The 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.

         Dr. 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 ...


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