ELI PARISEAU

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

24-P-608

ELI PARISEAU, petitioner.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On July 30, 2010, a Superior Court judge adjudicated Eli

Pariseau, the petitioner, a sexually dangerous person and

committed him to the Massachusetts Treatment Center. The

petitioner filed a petition pursuant to G. L. c. 123A, § 9 for

examination and discharge to determine whether he remained

sexually dangerous on June 21, 2019. After a trial, on January

19, 2023, a jury returned a verdict that the petitioner remains

sexually dangerous. The petitioner appeals, arguing that

(1) the prosecutor's admittedly erroneous closing argument

prejudiced the petitioner, (2) the judge improperly "allowed the

Commonwealth's experts to testify to the "above average" risk of

reoffense they assigned to the petitioner through the Static-
99R, 1 (3) the judge improperly allowed testimony on uncharged

allegations of the petitioner's misconduct, and (4) the judge

improperly excluded evidence that the petitioner was

preclassified as a level three sex offender by the Sex Offender

Registry Board (SORB). We affirm. 2

Discussion. Because the petitioner did not object to the

closing argument or to the testimony of uncharged allegations of

the petitioner's misconduct, 3 those claims were not preserved,

and we therefore review to determine whether any error created a

substantial risk of a miscarriage of justice. 4 See R.B.,

1 The Static-99R is an actuarial tool that predicts an adult
male sex offender's likelihood of reoffending based on a number
of static factors, including, inter alia, the offender's age and
number of prior sex offenses. Commonwealth v. George, 477 Mass.
331, 335 n.2 (2017).

2 After his January 2023 trial, a jury again found the
petitioner to be sexually dangerous on September 12, 2025. The
petitioner is scheduled for another trial, pursuant to G. L.
c. 123A, § 9, on November 2, 2026. Because many of the same
issues raised here are likely to arise again in the petitioner's
subsequent trials pursuant to § 9, we exercise our discretion to
review the petitioner's claims of error. See Thaddeus v.
Secretary of the Executive Office of Health & Human Servs., 101
Mass. App. Ct. 413, 418 (2022).

3 The petitioner contends that he preserved the uncharged
conduct issue by raising it in a motion in limine prior to
trial. However, counsel for the petitioner conceded that the
alleged conduct was admissible if it related to an offense for
which the petitioner was convicted and did not object when
witnesses for the Commonwealth referenced the uncharged conduct.
See Mass. G. Evid. § 103(a)(1) note (2025).

4 The petitioner argues that he preserved his argument in a
motion in limine in which he asked the court to preclude the

2
petitioner, 479 Mass. 712, 717-718 (2018). The petitioner

preserved his other claims, which we review for prejudicial

error. See Green, petitioner, 475 Mass. 624, 629 (2016).

1. Closing argument. During closing argument, in an

effort to convey to the jury the risk of the petitioner's

likelihood to reoffend the prosecutor asked the jury to imagine

whether they were willing to eat from a box of one hundred

cookies where they knew twelve to eighteen of the cookies were

fatally poisonous, thereby analogizing to an estimate of the

petitioner's likelihood of reoffending. 5 The argument was nearly

identical to one that a panel of this court previously concluded

was improper. 6 See DeAmicis, petitioner, 104 Mass. App. Ct. 1112

(2024). In that case the panel reasoned as follows.

"Although the Supreme Judicial Court has held that the
seriousness of the harm is a factor in determining
likelihood of reoffense, see [Commonwealth v. Boucher, 438

Commonwealth from arguing that it was the jury's responsibility
to protect public safety. However, in allowing the motion, the
judge explicitly distinguished raising concerns about public
safety from raising the petitioner's risk of reoffense, noting
that the latter was permissible.

5 Two expert witnesses for the Commonwealth testified that
of the sex offenders who receive the same score as the
petitioner from the administration of the Static-99R, 12.8
percent sexually reoffend within five years and 18.8 percent
sexually reoffend within ten years.

6 The prosecutor in the present case, who was also the
prosecutor in DeAmicis, petitioner, did not have the benefit of
this decision when he used the argument again here and stated
that he stopped making the argument when it was challenged on
appeal.

3
Mass. 274, 276 (2002)], the question before the jury is
whether the risk is 'likely.' See G. L. c. 123A, § 1. The
prosecutor's analogy to poison cookies, however, implies
that in the defendant's case, any amount of risk is too
great a risk. That is a misstatement of the law, and the
prosecutor's analogy was thus improper."

Id.

The Commonwealth concedes the argument was improper and we

agree. Nevertheless, the closing argument did not create a

substantial risk of a miscarriage of justice. The Commonwealth

presented strong evidence that the petitioner remained sexually

dangerous, including the fact that he sexually reoffended twice,

continues to deny any criminal conduct, and engaged in treatment

only for a limited time before stopping treatment altogether,

and engaged in consensual sex with another resident of the

treatment center -- against the treatment center's policies --

just months prior to his trial. In addition, the judge twice

instructed the jury that closing arguments are not evidence,

including one time immediately before closing arguments were

presented to the jury. See Commonwealth v. Andrade, 468 Mass.

543, 549 (2014) ("The jury are presumed to follow the judge's

instructions").

2. Static-99R risk category labels. "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.

4
George, 477 Mass. 331, 335 n.2 (2017). In George, the Supreme

Judicial Court held that the previously used risk-of-reoffense

categories that labeled an adult male sexual offender's risk of

reoffense as "low," "low-moderate," "moderate-high," and "high,"

were inadmissible because they "lack[ed] probative value in the

sexual dangerousness calculus and should not be admitted at

trial," id. at 339-340, but noted that "[t]o resolve the

shortcomings of the Static-99R risk category labels, test

developers have created new risk category labels, and "[the

court] take[s] no position on the admissibility of those

labels," id. at 340 n.8. Further, the Supreme Judicial Court

noted that its holding was "limited" to only the risk category

labels, and "[b]oth the Static-99R score and the corresponding

percentage . . . continue to be admissible." Id. at 341.

Relying on George, the petitioner contends that it was

prejudicial error to allow the Commonwealth's expert witnesses

to testify to the "above average" risk of reoffense they

assigned to the petitioner through the Static-99R. We disagree.

The Supreme Judicial Court determined that the previously

used risk category labels were inadmissible because the Static-

99R test developers acknowledged an "absence of accepted

standards or metrics connecting the risk category labels to

specific meanings, such as recidivism rates, psychological

features, or expected treatment needs" (quotation and citation

5
omitted). George, 477 Mass. at 340. As a result, the new risk

labels now categorize a person's risk of reoffense as "very

low," "below average," "average," "above average," and "well

above average," depending on how an offender's risk of reoffense

compares to other male sexual offenders. The new categories

therefore are directly linked to the admissible aspects of the

Static-99R through an objective measure, that being whether the

petitioner is more or less likely to reoffend than an average

adult male sex offender. Cf. id.

Even assuming without deciding that the new labels were

inadmissible, as applied here any error would be nonprejudicial.

In George, the admission of testimony referencing the erroneous

risk labels was found to be nonprejudicial because of "the

limited nature of the use of the Static-99R in the qualified

examiners' over-all risk assessment analysis." George, 477

Mass. at 341. The same reasoning applies here, where the

prosecutor did not reference the risk category labels during his

closing argument, the two expert witnesses for the Commonwealth

collectively only referenced the risk labels three times, the

experts contextualized the labels using scores and risk of

reoffense percentages that the Supreme Judicial Court recognized

as admissible in George, supra at 341-342, and they further

characterized their evaluations of the petitioner's risk of

reoffense using dynamic factors not considered by the Static-

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99R. In sum, we conclude that it was not error for the

Commonwealth's experts to refer to the "above average" risk

category label that they assigned to the petitioner through the

Static-99R, and even if it had been error, any references to the

risk category label were so limited as to be nonprejudicial.

3. Testimony of uncharged conduct. "[P]olice reports

relating to [the petitioner's] prior sexual offenses . . . shall

be admissible at the trial if such written information has been

provided to opposing counsel reasonably in advance of trial."

G. L. c. 123A, § 14 (c). "[O]ther information in police reports

-- including any statements describing the defendant's conduct

and the circumstances attendant to the offense -- is also

admissible. The fact that that information could have, but did

not, result in additional criminal charges is irrelevant to its

admissibility under § 14 (c)." Commonwealth v. Given, 441 Mass.

741, 745 (2004). A report of uncharged conduct "[is] relevant

to the crime charged" if it "show[s] a pattern of conduct and

the probable existence of the same passion or emotion at the

time in issue." Commonwealth v. Starkus, 69 Mass. App. Ct. 326,

333 (2007).

At trial, two of the Commonwealth's expert witnesses

referenced a police report related to the petitioner's 1984

conviction for open and gross lewdness. In that report it was

alleged that the petitioner had also sexually abused two six

7
year old girls, though the petitioner was never charged based on

these allegations. The petitioner contends that the reported

allegations did not relate to a crime that he was charged with,

and so it was error to admit the references to this uncharged

conduct. We disagree.

Evidence that the petitioner allegedly abused two six year

old girls was relevant to the petitioner's 1984 conviction for

open and gross lewdness. See Starkus, 69 Mass. App. Ct. at 333.

Specifically, the petitioner claims that his 1984 conviction was

based on a misunderstanding, namely that he was giving the three

year old victim a bath and was using the bathroom when the

victim's father came upon them. Thus, evidence that the

petitioner had allegedly abused two additional prepubescent

victims around the time he was found alone, with his pants down,

in a room with a three year old victim was relevant to show that

the petitioner's 1984 conviction was not the result of a

misunderstanding, but rather was part of a pattern of conduct of

intentional sexual assaults against prepubescent children. See

id.

4. The petitioner's preclassification as a level three sex

offender. Before trial, the judge allowed the Commonwealth's

motion in limine to exclude evidence of the fact that the SORB

preclassified the petitioner as a level three sex offender on

the ground that it was not relevant to whether the petitioner

8
remained sexually dangerous and introduced a "wholly extraneous

issue." The petitioner argues that the judge erred by excluding

evidence of his preclassification because he contends that

public dissemination of his information would reduce his risk of

reoffense, 7 and his likelihood to reoffend is relevant to whether

he remains sexually dangerous. We disagree.

The judge was well within her discretion to exclude the

petitioner's preclassification level on the ground that its

probative value would be substantially outweighed by the risk of

confusing the issues presented to the jury (or, as the judge put

it, by introducing a "wholly extraneous issue"). See

Mass. G. Evid. § 403 (2025) ("The court may exclude relevant

evidence if its probative value is substantially outweighed by a

danger of . . . confusing the issues . . ."). Both parties

during the pretrial hearing recognized the lack of record

evidence supporting the efficacy of the SORB's publication

system. See generally Moe v. Sex Offender Registry Board, 467

Mass. 598, 612 n.11 (2014) (noting lack of evidence that

internet publication of sex offenders prevented sexual crimes).

It is therefore predictable that admitting the petitioner's

preclassification level would have risked inviting the parties

7 The SORB is required to publish the sex offender
information of level two and level three sex offenders in an
online database available to the public. G. L. c. 6, § 178D.

9
to introduce evidence on the efficacy of internet publication of

sex offenders, an issue that the jury was not tasked with

deciding. See Mass. G. Evid. § 403.

Judgment affirmed.

By the Court (Vuono,
Desmond & Toone, JJ. 8),

Clerk

Entered: January 28, 2026.

8 The panelists are listed in order of seniority.

10