COMMONWEALTH v. BEYERS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury found that the defendant was a sexually dangerous person pursuant to G. L. c. 123A, §§ 1, 14. On appeal, the defendant claims that the evidence against him was insufficient and that the order denying his motion for a new trial, based on ineffective assistance of counsel, was an abuse of discretion. We affirm.

1. Sufficiency. For a person to be found sexually dangerous, the jury must find beyond a reasonable doubt “that the person 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. George, 477 Mass. 331, 338 (2017), quoting Commonwealth v. Fay, 467 Mass. 574, 580 (2014). Where the defendant has committed only noncontact sex offenses, the term “menace” means that a defendant's “predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime.” Commonwealth v. Suave, 460 Mass. 582, 588 (2011). See Fay, supra at 580-581. “Where, as here, the prospective victims are children, the [jury] should consider whether a child, and not an adult person, reasonably would be placed in fear of contact sexual offense by the defendant's actions.” Id. at 582.

The defendant challenges the sufficiency of the evidence to establish that he qualifies as a menace. We review his claim to determine “whether, after viewing the evidence (and all permissible inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have” made that finding beyond a reasonable doubt. Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J., concurring).

The jury heard evidence that, since 1977, the defendant has been convicted of more than thirty offenses involving the public exposure of his penis. The defendant admitted that he has exposed himself to at least one hundred people. According to an expert forensic psychologist, the defendant has “a sexual interest in exposing himself to others in public settings,” including libraries, book stores, public transit stations, and schools. The defendant primarily targeted prepubescent female children because they gave him the reaction that he desired. His targeting of children was not deterred by incarceration, probation, electronic monitoring, sex offender treatment, or the effects of aging.

The jury could reasonably conclude from the defendant's history of exposing himself to children in public places that he would continue to do so if not confined. The jury also heard expert testimony that the defendant had “an enduring and persistent sexual interest in exposing himself to prepubescent children,” whom he specifically targeted and approached for the purpose of offending. See Fay, 467 Mass. at 582 (sufficient evidence that defendant was “menace” where “all of the predicate offenses ․ included either luring behavior, approaching behavior, or both”). Even though the defendant had not committed a contact offense, the Commonwealth's expert opined that the defendant's predicted acts of exposing himself to prepubescent children would cause the children to fear sexual assault from the defendant. While there was a conflict in the expert testimony on this point, this evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove beyond a reasonable doubt that the defendant presents “a menace to the health and safety of other persons.” G. L. c. 123A, § 1.

2. Motion for new trial. The Commonwealth proposed a jury instruction on the meaning of “menace” which included the sentence: “You may also consider whether the respondent ever stalked, lured, approached, confined, or touched a victim.” See Suave, 460 Mass. at 588. Defense counsel objected to this language because she thought it might “cause the jury to conflate these acts with the [defendant]'s behaviors.” The judge considered the instruction during the charge conference, but declined to instruct the jury with the language proposed by the Commonwealth.

In a motion for a new trial, the defendant claimed that the questioned portion of the instruction was required and that counsel's objection to it amounted to ineffective assistance of counsel. The judge denied the motion in a comprehensive written decision, concluding that the instruction was not necessary and that counsel's strategic objection was not manifestly unreasonable. We review the order denying the motion for a new trial “to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We extend special deference to the motion judge where, as in this case, she was also the trial judge. Id.

An attorney's performance is constitutionally ineffective when her behavior falls measurably below that expected from an ordinary, fallible lawyer, such that the defendant is deprived of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Where defense counsel made a strategic or tactical decision that the defendant now challenges,” the defendant must demonstrate that the decision was “manifestly unreasonable when made” (quotation omitted). Commonwealth v. Walker, 460 Mass. 590, 598 (2011).

Here, the jury heard evidence that the defendant frequented public areas waiting for and then following young children who were unaccompanied by a caregiver. The defendant approached some of the children and engaged them in conversation to ensure that they were close enough to observe his genitals. On one occasion, the defendant stood by the library exit as two victims tried to leave. In light of this evidence, defense counsel's concern that “the language [of the instruction] could be construed in a manner negative to the [defendant]” was well founded. Where the jury could reasonably infer from the evidence that the defendant “stalked” and “approached” prepubescent children, we see nothing manifestly unreasonable in defense counsel's tactical objection to an instruction asking the jury to consider whether the defendant “ever stalked, lured, approached, confined, or touched a victim.”

The judge did not err in failing to give that portion of the proposed instruction because that language was not required.² The judge instructed the jury that

“[a] person is a menace to the health and safety of other persons if his predicted offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. A generalized [fear] or some other unspecified psychological harm such as shock or alarm will not suffice. If you find that a person's prospective victims include children you should consider whether a child, as opposed to an adult person, reasonably would be placed in fear of a contact sexual offense by the [defendant's] actions.”

This instruction was consistent with Fay, 467 Mass. at 582; Suave, 460 Mass. at 588; and the Superior Court model instruction regarding sexually dangerous persons, see Massachusetts Superior Court Criminal Practice Jury Instructions § 9.1.2 (Mass. Cont. Legal Educ. 2013). The judge was not required to use any specific language, and her instructions “adequately cover[ed] the issue.” Commonwealth v. Daye, 411 Mass. 719, 739 (1992).

For all of these reasons, we discern no abuse of discretion in the order denying the defendant's motion for a new trial.

Judgment affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The defendant offers no authority requiring the proposed language and we have found none. Relying on Commonwealth v. Spring, 94 Mass. App. Ct. 310, 320 (2018), the defendant “submits that the language ․ is ․ essential to the jury's consideration of menace.” Spring is distinguishable, however, because the judge in Spring offered no explanation of the term “menace” in the context of noncontact offenses. Id. Here, the judge accurately defined the term menace.