Commonwealth v. William Redmon.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-311

COMMONWEALTH

vs.

WILLIAM REDMON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury found that the respondent was a

sexually dangerous person, and he was civilly committed to the

Massachusetts Treatment Center. The respondent appeals,

challenging the sufficiency of the evidence, the admission of

evidence of his Static-99R risk category label, the judge's

failure to give a requested jury instruction, and the judge's

response to a jury question. We affirm.

Background. In 1983, at age twenty-two, the respondent was

convicted in Michigan of criminal sexual conduct, fourth degree,

after he grabbed a woman between her legs. In 1992 the

respondent pleaded guilty in Massachusetts to eight counts of

indecent assault and battery on a child after he raped a five-
year old girl anally and vaginally on multiple occasions. While

on probation for that offense in 1993, the respondent picked up

a woman in his car, touched her breast and vaginal area, grabbed

her by the throat, and tried to force her to perform oral sex.

He was convicted of kidnapping and indecent assault and battery

on a person over fourteen as a result of this incident.

In 1999, following the respondent's release from

incarceration, he began sexually abusing a five-year old female

victim. He inappropriately touched the victim, kissed her, and

forced oral sex on her multiple times until she turned eight

years old. The victim disclosed the abuse when she was

fourteen, which led to the respondent's 2010 convictions of four

counts of rape of a child under sixteen and six counts of

indecent assault and battery on a child under fourteen,

subsequent offense.

Prior to the respondent's release on the 2010 convictions,

the Commonwealth petitioned to commit him as a sexually

dangerous person. After an order of temporary commitment

issued, the respondent was adjudicated sexually dangerous in

2022 and has remained committed since.

Discussion. 1. Sufficiency of the evidence. In assessing

the sufficiency of the evidence in a sexually dangerous person

proceeding, we review the evidence, and all reasonable

inferences therefrom, in the light most favorable to the

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Commonwealth. See Commonwealth v. Cahoon, 86 Mass. App. Ct.

266, 268 (2014). The Commonwealth has the burden of proving

beyond a reasonable doubt that the respondent "has been

convicted of a sexual offense, suffers from a mental abnormality

or personality disorder that renders him a menace to the health

and safety of others, and is likely to engage in sexual offenses

if not confined." Commonwealth v. Fay, 467 Mass. 574, 580

(2014). The only element at issue here is whether the

respondent would be likely to sexually offend if not confined to

a secure facility.

There was ample evidence to support the jury's verdict with

respect to that element. The evidence established that, dating

back to the 1980s, the respondent committed repetitive and

aggressive acts of sexual misconduct, including against female

children, despite his frequent arrests and incarceration. The

jury heard testimony that as recently as 2022, the respondent

admitted to still having deviant thoughts about prepubescent

girls and remained in the early stages of sex offender

treatment. In addition, the evidence showed that the respondent

had violated his probation by assaulting a woman and had failed

to register as a sex offender. The jury could reasonably

conclude from this evidence that the respondent was likely to

reoffend sexually when "free of the constraints of an

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institutional setting." Poulin, petitioner, 22 Mass. App. Ct.

988, 988 (1986).

Moreover, the jury were entitled to credit the opinions of

the qualified examiners, Dr. Kaitlyn Peretti and Dr. Gregg

Belle, regarding the respondent's sexual dangerousness. See

Commonwealth v. Fusi, 91 Mass. App. Ct. 901, 902 n.5 (2017).

Both qualified examiners opined, based on the respondent's

criminal history, pedophilia, antisocial tendencies, and lack of

progress in treatment, that the respondent met the statutory

definition of a sexually dangerous person. Considering all the

evidence and testimony presented, the jury could have concluded

beyond a reasonable doubt that the respondent was sexually

dangerous. See Cahoon, 86 Mass. App. Ct. at 268-269.

To the extent the respondent asserts that the qualified

examiners failed to consider his probation conditions upon

release, the record does not support his assertion. Neither Dr.

Peretti nor Dr. Belle discussed probation as a protective factor

in their reports because, when they wrote the reports, the

respondent was subject to lifetime community parole. Just a few

months before trial, the respondent successfully moved to vacate

his lifetime community parole sentence, and he was resentenced

to five years of probation. Dr. Peretti and Dr. Belle were then

questioned about the probation conditions at trial, and both

concluded that the respondent was still sexually dangerous. Dr.

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Peretti testified that "the risk that [the respondent] currently

presents outweighs the protection that he has from [his]

probation" because of his lack of progress in sex offender

treatment. Likewise, Dr. Belle did not view probation "as

strong or as robust of a risk mitigating factor" based on the

respondent's prior "inability to comply with conditions of

probation." The record therefore belies the respondent's claim

that the qualified examiners failed to take into account his

probation conditions.

We are also unpersuaded by the respondent's contention that

a one in six chance of reoffense, which the respondent derived

from his Static-99R test results,1 was insufficient to establish

his sexual dangerousness. "While the Commonwealth is required

to prove beyond a reasonable doubt that a person is sexually

dangerous, . . . it is not required to prove to any particular

mathematical quantum the likelihood of his committing another

sexual offense." Commonwealth v. Boucher, 438 Mass. 274, 277

(2002). See Commonwealth v. Bradway, 62 Mass. App. Ct. 280,

290-291 (2004), quoting Boucher, supra ("likely" as used in

definition of sexually dangerous person "does not mean 'more

1 "The Static-99R is an actuarial tool, designed to predict
the recidivism risk of sexual offenses in adult male sex
offenders who have been convicted of at least one sexual
offense." Commonwealth v. George, 477 Mass. 331, 335 n.2
(2017).

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likely than not'"). It was for the jury to decide what weight

to give the evidence relating to the respondent's sexual

dangerousness. See In re Hill, 422 Mass. 147, 156 (1996).

2. Static-99R results. The respondent moved in limine to

exclude any reference to his Static-99R risk category label of

"above average risk" to reoffend on the ground that it would

violate the holding of Commonwealth v. George, 477 Mass. 331,

341-342 (2017). The judge allowed the motion pursuant to the

parties' agreement, but the risk category label was admitted, it

appears inadvertently, through written reports entered in

evidence. The respondent argues that this was reversible error.

In George, 477 Mass. at 339, the Supreme Judicial Court

held that the Static-99R risk of reoffense categories that were

then in place "lack[ed] probative value in the sexual

dangerousness calculus and should not be admitted at trial." At

the same time, the court recognized that new risk category

labels had been created to "resolve the shortcomings" of the

older labels. Id. at 340 n.8. The court noted that these new

labels "have sufficiently improved conceptual coherence and have

sufficient empirical support to replace the original categories"

(quotations omitted). Id.

Relying exclusively on George, the respondent contends that

the new risk category labels, which are at issue here, are

inadmissible. George does not support his argument, however,

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because the court expressly took "no position on the

admissibility of [the new] labels." Id. Furthermore, even

assuming error, the respondent has not demonstrated prejudice.

His "above average risk" to reoffend was never testified to or

argued by either party and was referenced only twice in the

written reports, which were part of almost two hundred pages of

exhibits. In light of this, and also considering the strength

of the Commonwealth's case, we are satisfied that any error did

not materially influence the jury. See Commonwealth v. Cruz,

445 Mass. 589, 591 (2005).

3. Proposed jury instruction. Prior to trial the

respondent requested the following jury instruction: "You must

be convinced beyond a reasonable doubt that the only way to

prevent the defendant from engaging in future sexual offenses is

to confine him to a 'secure facility' and that superior court

probation is not sufficient." After hearing argument, the judge

denied the proposed instruction "in this form" because it

appeared "to be a factual issue as to protective measures about

probation."

We discern no error. A judge's refusal to give a requested

jury instruction is reversible error only if the instruction is

"(1) substantially correct, (2) was not substantially covered in

the charge given to the jury, and (3) concerns an important

point in the trial so that the failure to give it seriously

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impaired the [respondent's] ability to effectively present a

given defense." Commonwealth v. DeGennaro, 84 Mass. App. Ct.

420, 431 (2013), quoting Commonwealth v. Adams, 34 Mass. App.

Ct. 516, 519 (1993). The instruction requested by the

respondent was not substantially correct because it effectively

created a fourth element requiring the Commonwealth to prove

that probation could not prevent the respondent from offending.

See Bradway, 62 Mass. App. Ct. at 291 (sexually dangerous person

statute does not require consideration of less restrictive

alternatives to commitment). Because the requested instruction

would have misstated the Commonwealth's burden of proof, the

judge correctly declined to give it.2 See Commonwealth v. Fano,

400 Mass. 296, 305-306 (1987).

Moreover, the issue of probation was substantially covered

by the jury charge. In particular, the judge instructed that:

"In deciding whether the Commonwealth has proved that [the
respondent] will likely commit future sexual offenses if
not confined to the treatment center, you may consider the
seriousness of the threat and harm, the relative certainty
of the anticipated harm, and the potential that successful
intervention not involving confinement may keep [the
respondent] from committing future sexual offenses."

Unlike the respondent's requested instruction, this instruction

accurately stated the law. See Commonwealth v. Castillo, 55

Mass. App. Ct. 563, 568 (2002) (jury charge accurately stated

2 The different formulation of the instruction argued for by
the respondent on appeal suffers from the same infirmity.

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elements of crime, and judge properly rejected defendant's

proposed instruction, which "would have effectively constrained

the definition of the offense"). The jury charge as given also

did not impair the respondent's defense; it permitted him to

argue that probation supervision was an "intervention not

involving confinement" that would prevent him from offending.

4. Answer to jury question. Before trial the Commonwealth

requested a modification of the jury instructions to clarify

that any potential personality disorder of the respondent should

not be considered in determining his sexual dangerousness. With

the consent of both parties, the judge removed any reference to

personality disorders from the jury instructions. The

Commonwealth did not present any evidence that the respondent

had a personality disorder, but one of the respondent's experts

testified that he met the diagnostic criteria for antisocial

personality disorder. During deliberations the jury then asked

if they could "obtain a copy of the DSM5 criteria for antisocial

personality disorder." Without objection from either party, the

judge responded by informing the jury that they "must rely on

the evidence and exhibits presented at trial."

The respondent contends, for the first time on appeal, that

the judge should have answered the jury's question by

instructing them that they could not "find [the respondent]

sexually dangerous based on a finding that he has a personality

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disorder." We are unpersuaded. The proper response to a jury

question lies "within the discretion of the trial judge, who has

observed the evidence and the jury firsthand and can tailor

supplemental instructions accordingly." Commonwealth v. Waite,

422 Mass. 792, 807 n.11 (1996). Here, the judge's answer to the

jury's question was appropriate. Indeed, the respondent does

not point to any legal error in the answer. Furthermore, the

respondent has failed to demonstrate a substantial risk of a

miscarriage of justice given that all four testifying experts

agreed that he suffers from the mental abnormality of

pedophilia.

For the same reasons, we are unpersuaded by the

respondent's claim that his counsel was ineffective for failing

to request the aforementioned instruction in response to the

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jury's question. See Commonwealth v. Tyler, 493 Mass. 752, 762

(2024) ("counsel could not have been ineffective for failing to

request an instruction to which the defendant was not

entitled").

Judgment affirmed.

By the Court (Massing, Shin &
D'Angelo, JJ.3),

Clerk

Entered: June 28, 2024.

3 The panelists are listed in order of seniority.

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