Commonwealth v. Scott Rathbun.

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-366

COMMONWEALTH

vs.

SCOTT RATHBUN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this case, the defendant was found, after a jury trial,

to be a sexually dangerous person. See G. L. c. 123A, § 12. He

has now appealed.

The defendant argues first that the Commonwealth's evidence

was insufficient to support a finding that the defendant

suffered from a personality disorder as defined in the civil

commitment statute. A "[p]ersonality disorder" is defined by

the statute as "a congenital or acquired physical or mental

condition that results in a general lack of power to control

sexual impulses." G. L. c. 123A, § 1. As the defendant

correctly notes, the government must prove through "expert

testimony from at least one of [the] two designated qualified
examiners,"1 Chapman, petitioner, 482 Mass. 293, 309 (2019), that

the defendant's condition results, at the very least, in serious

difficulty in controlling his sexual impulses. See id.; Dutil,

petitioner, 437 Mass. 9, 17-18 (2002).

At least one of the qualified examiners, however, Dr. Greg

Belle, gave testimony that was adequate to support the jury's

finding on this point. He testified, "And so in [the

defendant's] case, he has shown a repeated pattern of engaging

in sex offending behaviors with three individuals . . . between

the years of 2002 and 2015. So again, I also think that that

not only speaks clinically to his antisocial personality

disorder, but also to his inability to control his sexual

impulses while he's been in the community."

The defendant argues that the evidence is inadequate

despite the quoted language because on cross-examination, Dr.

Belle conceded that there was no evidence defendant had any

issues relative to sexual self-regulation since 2015, a time

1 A qualified examiner is "a physician who is licensed
pursuant to section two of chapter one hundred and twelve who is
either certified in psychiatry by the American Board of
Psychiatry and Neurology or eligible to be so certified, or a
psychologist who is licensed pursuant to sections one hundred
and eighteen to one hundred and twenty–nine, inclusive, of
chapter one hundred and twelve; provided, however, that the
examiner has had two years of experience with diagnosis or
treatment of sexually aggressive offenders and is designated by
the commissioner of correction." G. L. c. 123A, § 1.

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period that includes fifteen months where the defendant was in

the community while on probation. But a period of time during

which no sex offenses occurred while the defendant was in the

community is not inconsistent with a conclusion that an

individual has a general inability to control his sexual

impulses. See Souza, petitioner, 87 Mass. App. Ct. 162, 168-

169, 171-172 (2015) (directed verdict for petitioner improper

even where petitioner's most recent offense had occurred over

twenty years ago and where there was no evidence of sexual

misconduct during years petitioner had lived in the community).

The defendant also argues that the jury's conclusion on the

question of general inability to control sexual impulses cannot

stand in light of Dr. Belle's agreement that the defendant had

controlled his sexual impulses while incarcerated, first in

prison for roughly one year, then again for roughly four months

after his probation was revoked, and then in the treatment

center for nearly two years. But controlling oneself in the

pervasively supervised environment of a prison or the treatment

center does not necessarily preclude a conclusion that an

individual has a general inability to control his sexual

impulses. Hill, petitioner, 422 Mass. 147, 157, cert. denied,

519 U.S. 867 (1996) (noting that, since recent examples of

"conduct showing sexual dangerousness" are often lacking when

petitioner is "in a secure environment" that prevents his

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dangerous disposition from manifesting, Commonwealth was free to

attempt to prove its case by extrapolating present dangerousness

from earlier incidents of the type of dangerousness that "has a

tendency to persist"). Of course, the pervasive supervision in

such facilities does not prevent all sex offenders from

committing sexual crimes while incarcerated, but it does not

follow that all incarcerated individuals with a general

inability to control their sexual impulses do. This is not

altered by the fact on which the defendant would rely that he

was incarcerated with adult men, a category that includes all

his victims.

Thus, there was sufficient evidence to support the jury's

finding.

The defendant also alleges a number of prosecutorial errors

that, he argues, give rise to a substantial risk of a

miscarriage of justice. R.B., petitioner, 479 Mass. 712, 713

(2018) (concluding that in sexually dangerous person cases, "as

in criminal cases, [unpreserved] arguments are to be reviewed

for a substantial risk of a miscarriage of justice").

In the opening, the prosecutor asserted that on more than

one occasion the defendant had anally raped his eighty year old

victim, when the evidence showed that he had instead held the

victim's mouth open so that he could ejaculate into it. This

was obviously incorrect, although there is no evidence in the

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record that it was intentional. In any event, given the

detailed accurate testimony heard by the jury, we do not think

the error created a substantial risk of a miscarriage of

justice.

The defendant also points to the prosecutor describing the

findings that must be made by the jury not as elements they must

find, but as boxes they have to check. Given that the jury must

find beyond a reasonable doubt each of the elements, it is

possible that this box-checking idea might mislead a jury into

thinking the burden is lower than it actually is. The defendant

argues that this was reinforced by the prosecutor's statement,

"The question is whether or not based upon all the evidence you

hear that whether or not you think it would be likely that

[defendant] will sexually reoffend again." Of course, the jury

must conclude beyond a reasonable doubt that, "as a result of

[his] . . . personality disorder, he is likely to commit further

sexual offenses if not confined to a secure facility," not

merely think that. Commonwealth v. Husband, 82 Mass. App. Ct.

1, 3-4 (2012).

Nonetheless, even if these statements taken together might

have confused a juror -- something we need not and do not

decide -- given the jury instructions, we do not think they

would have created a substantial risk of a miscarriage of

justice.

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Defense counsel objected and the judge agreed that the

statement in closing was wrong that the test used by one of the

defendant's experts -- the so-called MATS-1 test -- was "not

even accepted in the Commonwealth of Massachusetts." Counsel

did not ask for a curative instruction. Because that may have

been a tactical decision, we cannot determine on this record if

there was even an error.

Of more concern than the opening or closing were two

questions asked on cross-examination that were obviously

improper and that, despite not being evidence, certainly put

before the jury the prosecutor's characterizations of the

defendant's witnesses themselves.

The first witness was the founder of an organization called

the Boston Release Network, which assists recently released sex

offenders. He is himself a former sex offender and a prior

resident of the treatment center; after appealing his original

conviction, he received a new trial where he was convicted of

lesser offenses. The prosecutor ended her cross-examination by

asking about the sex offenses committed by the witness. Her

questioning follows:

"Q: So before that last offense, you had raped two women
and sexually assaulted another?

"A: Yes.

"Q: And --

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"A: In 1979 and '80.

"Q: Do you feel remorse for the women that you raped?

"A: Oh, I certainly do.

"Q: Do you feel that going back to trial and putting your
victim through that a second time was showing remorse?

"A: Not in that context perhaps, but it didn't change my
remorse. It was a legal right that I had to appeal a
conviction.

"Q: But you put that woman through a second trial?"

The defendant's counsel objected and the objection was

sustained.

The final question, apparently designed to impugn the

character of the witness, was obviously improper, see

Commonwealth v. Kozec, 399 Mass. 514, 525 (1987); Commonwealth

v. McCoy, 59 Mass. App. Ct. 284, 289-290 (2003), and the judge

properly sustained the objection. Although it therefore did not

result in any testimony, it certainly did serve to put before

the jury the idea that the witness needlessly forced his own

victim to go through a second trial after the witness's

successful appeal.

In cross-examination of Dr. Leonard Bard, a forensic

psychologist who was previously employed at the Massachusetts

Treatment Center and as a qualified examiner, the prosecutor

concluded her cross-examination as follows:

"Q: . . . Dr. Bard, you're a hired gun for defense
counsel, aren't you?

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"MR. PALMUCCI: Objection, Your Honor.

"THE COURT: Sustained.

"MS. MULLIN: Nothing further."

Referring to a defense expert as a "hired gun" has been

condemned by appellate courts in Massachusetts for over forty

years. There are repeated decisions, from this court and the

Supreme Judicial Court, urging the Commonwealth to refrain from

this improper practice. See, e.g., Commonwealth v. Copeland,

481 Mass. 255, 264 (2019); Commonwealth v. Grimshaw, 412 Mass.

505, 511 (1992); Commonwealth v. O'Brien, 377 Mass. 772, 778

(1979). This question, therefore, was also clearly improper.

The objection was sustained, so no testimony was given on the

point, but, through the question, the prosecutor disparaged the

witness in front of the jury.

The practice of including in cross-examination clearly

improper questions to which an objection will certainly be

sustained, but which disparage the witness, is a serious matter,

and we remind all attorneys that it is improper. Depending on

the circumstances, it could in some cases properly lead to

declaration of a mistrial.

In this case, however, given the strength of the evidence,

these errors in cross-examination, even when taken together and

combined with the errors we have found in the opening and

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closing, did not create a substantial risk of a miscarriage of

justice.

The defendant argues that evidence that he would be

required, if released, to register as a sex offender improperly

was excluded. The record before us does not reveal whether the

defendant attempted to introduce such evidence. Without a

clearer record on the point, the defendant cannot demonstrate

reversible error.

The judgment is affirmed.

Judgment affirmed.

By the Court (Rubin,
Desmond & Singh, JJ.2),

Clerk

Entered: February 4, 2025.

2 The panelists are listed in order of seniority.

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