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Commonwealth v. Spring

Appeals Court of Massachusetts, Norfolk

October 24, 2018


          Heard: June 1, 2018.

         Petition for civil commitment filed in the Superior Court Department on January 9, 2015. The case was tried before Raymond J. Brassard, J., and a motion for a new trial, filed on October 13, 2016, was heard by William F. Sullivan, J.

          David B. Hirsch for the defendant.

          Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Sullivan, & McDonough, JJ.

          SULLIVAN, J.

         Following a jury trial, the defendant, Robert Kenneth Spring, Jr., was found to be a sexually dangerous person (SDP). See G. L. c. 123A, §§ 12, 14. The evidence at trial established that he had a history of both contact and noncontact sex offenses, and the jury were asked to determine whether the defendant would commit either kind of sex offense in the future. This case calls upon us to address, in the context of a motion for new trial claiming ineffective assistance of counsel, what instruction the jury should have been given regarding whether the defendant was likely to reoffend in such a way as to render him a sexually dangerous person.

         To be found a sexually dangerous person, a finder of fact must determine beyond a reasonable doubt that a defendant suffers from a mental abnormality that renders him "a menace to the health and safety of other persons." G. L. c. 123A, § l.[1]In Commonwealth v. Suave, 460 Mass. 582, 588 (2011), the Supreme Judicial Court held, in a case involving solely noncontact sex offenses against adult victims, that a defendant can be found to be a menace, and therefore a sexually dangerous person, only where the Commonwealth has shown (among other things) that "the defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime."

         Some two and one-half years later, in a pair of cases issued the same day, the court again considered the Suave test. Commonwealth v. Fay, 467 Mass. 574, cert, denied, 135 S.Ct. 150 (2014), involved noncontact sex offenses against children. Fay affirmed a determination in a jury-waived trial that the defendant, who had engaged in noncontact sex offenses that included luring and approaching behavior towards children, was an SDP, as his behavior could place children in reasonable fear of a contact offense in the future.

         In Commonwealth v. Walker, 467 Mass. 1017 (2014), a jury-waived case tried before Suave, involving a history of both contact and noncontact sex offenses, the Supreme Judicial Court considered the judge's finding that the defendant was likely to commit noncontact sex offenses. The Supreme Judicial Court vacated the judgment, holding that "[i]f the only basis for the judge's conclusion that the defendant is a 'menace' were the likelihood that the defendant would commit noncontact offenses, without the further finding that these offenses would be likely to instill in his victims a reasonable apprehension of being subjected to a contact sex crime, the defendant could not be found sexually dangerous." Id. at 1018. Because the judge's findings regarding the commission of future contact sex offenses were also unclear, the matter was remanded for further findings as to the likelihood the defendant would engage in contact or noncontact sex offenses in the future, and, if the latter only, whether the Suave test was satisfied. Id.[2]

         Today's case, tried over a year after the decisions in Fay and Walker issued, presents a similar legal question in the context of a jury trial. Here, the defendant had committed multiple contact offenses against children between 1980 and 1993, resulting in two convictions, for which he received a suspended sentence and a period of probation. In the twenty-two years preceding the SDP trial he did not commit any other contact sex offenses, but he acquired and viewed child pornography that contained graphic images of contact sex offenses involving young children. In 2014, the defendant pleaded guilty to one count of possession of child pornography and was sentenced to two and one-half years in the house of correction, with one year to serve.

         The 2014 conviction led to this SDP proceeding. However, there was no evidence at the SDP trial that the defendant created, shared, or distributed child pornography, lured or approached children using child pornography, or showed child pornography to any child (or any other person) in such a way as to instill a reasonable fear of a contact sex offense. The jury asked three very specific questions, one during the questioning of an expert witness, and two during deliberations, concerning whether viewing child pornography rendered the defendant a sexually dangerous person. Despite these questions, counsel did not request, and the jury were not given, an instruction that if they found the defendant likely to engage solely in the noncontact offense of viewing child pornography, they could not find him to be an SDP unless they also found that the noncontact offense "will instill in his victims a reasonable apprehension of being subjected to a contact sex crime." Suave, 460 Mass. at 588 (hereinafter Suave/Fay/Walker instruction).

         On motion for new trial, the defendant argued that his counsel was ineffective for failing to request such an instruction, and that he was prejudiced as a result. On this record, and consistent with the case law, see Kansas v. Hendricks, 521 U.S. 346, 357-358 (1997); Walker, 467 Mass. at 1017-1018, we agree. The instructions permitted the jury to conclude that the defendant was an SDP based on a finding that he was likely to reoffend by possessing child pornography, without more. The instruction given permitted the jury to find the defendant a sexually dangerous person under circumstances that do not meet the statutory definition of an SDP, as interpreted by the Supreme Judicial Court.


         1. Contact offenses.

         The defendant's history of contact offenses, both charged and uncharged, was undisputed. The defendant committed his first sex offense in 1980 when he was seventeen; he performed oral sex on a young boy and touched a young girl in the vaginal area over her clothes. He was later charged with touching a fifteen year old girl by putting his hands down her pants. In 1981, when the defendant was eighteen, he sexually abused two young boys, ages nine and eleven, while babysitting for them.[3]

         In 1993, the defendant turned himself in and pleaded guilty to two counts of indecent assault and battery on Lara[4] and another girl, both under the age of fourteen. See G. L. c. 265, § 13B.[5] The defendant admitted touching Lara over a two-year period while she was between the ages of eight and ten.[6]'[7] As a result of these convictions, he was sentenced to two and one-half years in the house of correction, suspended until October, 1996, with probationary conditions.

         2. Child pornography.

         In 1993, while on probation and attending court-ordered group therapy stemming from his indecent assault and battery convictions, the defendant learned (from members of his therapy group) how to get child pornography. He continued to collect child pornography containing graphic images of contact offenses against young children until his arrest in March, 2012, for possession of child pornography. See G. L. c. 272, § 29C.[8] The defendant told a therapist that he "realize[d] that he has a sexual interest in children," and used child pornography as "self-therapy," and to prevent himself from committing additional sex offenses against children.

         A forensic examiner identified 4, 800 images of child pornography seized from the defendant. The examiner also testified that someone accessed child pornography from the defendant's computer in the days immediately leading up to his arrest.[9]

         c. New contact with Lara.

         Before his 2012 arrest, the defendant renewed contact with Lara, by this time an adult. According to the defendant, they became engaged in 2013. Although the defendant stated that he is in love with Lara, he also stated that he has not had contact with her since his incarceration and would not have contact with her if he is released.[10]

         4. Expert testimony.

         At trial, the defense proceeded on a theory that because of the defendant's age (fifty-two at the time of trial) and the extended period of time he had been living in the community without committing a contact sex offense, he was not sexually dangerous and was not likely to commit any sex offense -- contact or noncontact -- if released. The Commonwealth argued that the defendant had a long history of contact and noncontact offenses and that he was likely to commit a sex offense of one kind or another if released. The expert testimony tracked these theories.

         The Commonwealth's and defendant's experts all opined that the defendant had pedophilic disorder. In rendering their opinions, the Commonwealth's experts, Dr. Katrin Rouse-Weir, who served as a qualified examiner in the case, and Dr. Gregg Belle, did not distinguish between contact and noncontact offenses in assessing the likelihood that the defendant would reoffend. They did not offer any opinion whether the defendant, if he committed only noncontact offenses in the future, would put another in reasonable fear of a contact offense. Dr. Rouse-Weir opined that the defendant's mental abnormality "predisposes him to the commission of criminal sexual acts, the possession and use of child pornography." She also found significant the fact that the defendant "has committed a number of contact sex offenses involving children[, ]" and stated, "[I]n my opinion . . . he meets the criteria for menace in the statute." She concluded that "[the defendant is] at risk of reoffending with a sexual offense, contact or noncontact offense." Similarly, Dr. Belle testified that there was a "relative certainty" that the defendant was likely to commit a sexual offense, but stated categorically, "I'm not making a distinction of it's contact or noncontact. It's likely to commit a sexual offense."[11]

         This testimony was the result of the Commonwealth's considered trial strategy. On the morning of the fourth day of trial, shortly before the Commonwealth concluded its case, the prosecutor moved to redact a statement from the report of the defendant's expert, Dr. Joseph Plaud, that distinguished between contact and noncontact offenses. Citing Commonwealth v. Almeida, 467 Mass. 1015 (2014), the prosecutor argued that the requirement that the Commonwealth prove that predicted noncontact sex offenses place a future victim in reasonable apprehension of a contact sex ...

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