SCOTT RATHBUN v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, Scott Rathbun, appeals from his adjudication as a sexually dangerous person (SDP) and denial of release under G. L. c. 123A, § 9 (§ 9). The petitioner argues that the qualified examiner's opinion offered at trial by the Commonwealth was insufficient to support the jury's finding that he remained an SDP, and that the trial judge erred in his responses to the jury's questions during deliberations. We affirm.

Background. Between 2002 and 2015, the petitioner committed numerous sexual offenses against adult men. In 2018, the Commonwealth filed a petition under G. L. c. 123A, § 12, to have the petitioner civilly committed to the Massachusetts Treatment Center (MTC) as an SDP. In December 2021, a jury returned a verdict that the petitioner was an SDP, and he was committed to the MTC.

In 2022, the petitioner filed a petition under § 9, to be released from the MTC. The Commonwealth requested a jury trial, which was held in July 2024. At trial, the Commonwealth presented the testimony of two psychologists: Dr. Alejandro Leguízamo, a qualified examiner; and Dr. Carla Muñoz, a member of the Community Access Board (CAB). The petitioner called three witnesses: Dr. Kerry Nelligan, a psychologist and the other qualified examiner; Dr. Joseph Plaud, a psychologist; and Christina Patts, a licensed social worker.

Leguízamo opined that the petitioner met the criteria for an SDP. Leguízamo diagnosed the petitioner as having an antisocial personality disorder (APD), and explained that he based his diagnosis on the petitioner's past impulsive and defiant behaviors, and his difficulty following rules, even in a controlled environment. Leguízamo concluded that if the petitioner was released into the community, his APD would prevent him from controlling his sexual impulses, making him likely to reoffend sexually. Muñoz testified that she and the CAB unanimously agreed that the petitioner had ADP and was an SDP. The petitioner's experts opined that he did not have a personality disorder and was not sexually dangerous.

The jury determined that the petitioner remained sexually dangerous.

Discussion. 1. Mootness. After the briefs had been filed, the Commonwealth submitted a letter under Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019), suggesting that the appeal may now be moot because the petitioner had filed a subsequent § 9 petition for release, and on May 12, 2026, a different jury returned a verdict that he remained an SDP.

Although a decision in the petitioner's favor in this appeal would not entitle him to immediate discharge, see McIntire, petitioner, 458 Mas. 257, 263-267 (2010), cert. denied, 563 U.S. 1012 (2011), because he remains civilly committed, the sufficiency of the qualified examiner's opinion of his sexual dangerousness will likely arise in future § 9 proceedings. Issues are moot when the parties “would no longer be personally affected by the resulting decision” (citation omitted). Harmon v. Commissioner of Correction, 487 Mass. 470, 475 (2021). That is not the case here. Furthermore, there is no suggestion in McIntire, supra, that the subsequent denials of that petitioner's § 9 petitions rendered moot the issues presented in McIntire itself, which arose from a prior adjudication of sexual dangerousness. Accordingly, we address the merits.

2. Qualified examiner's testimony. The petitioner argues that the trial judge should have granted his motions for directed verdict because the opinion of the Commonwealth's qualified examiner, Leguízamo, was insufficient to support a finding beyond a reasonable doubt that the petitioner remained an SDP.

During a § 9 hearing the Commonwealth must prove three elements beyond a reasonable doubt: (1) that the petitioner had been adjudicated an SDP in the past; (2) that the petitioner is diagnosed with a mental abnormality or personality disorder; and (3) that the petitioner's mental abnormality or personality disorder makes him likely to engage in sexual offenses if not confined to a secure facility. See G. L. c. 123A, § 1; Commonwealth v. Fay, 467 Mass. 574, 580, cert. denied, 574 U.S. 858 (2014); Souza, petitioner, 87 Mass. App. Ct. 162, 169 (2015). “On appeal, we ask ‘whether, after viewing the evidence (and all permissible inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness, as defined by G. L. c. 123A, § 1.’ ” Pariseau, petitioner, 102 Mass. App. Ct. 67, 76 (2023), quoting Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J. concurring). See Souza, supra.

With respect to the second element, “personality disorder” is defined 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. “[A] ‘personality disorder’ as defined in G. L. c. 123A, § 1, is relevant to the sexual dangerousness calculus only if the ‘condition ․ results in a general lack of power to control sexual impulses.’ ” Commonwealth v. George, 477 Mass. 331, 336 (2017), quoting G. L. c. 123A, § 1. Thus, a diagnosis of a personality disorder such as APD is a sufficient basis for adjudication as an SDP so long as it is predictive, combined with other evidence, of the petitioner's inability to control his sexual impulses. See George, supra.

It is undisputed that the petitioner was committed to the MTC after being adjudicated as an SDP. Additionally, it is undisputed that the petitioner has a personality disorder, specifically, APD.¹ The petitioner's primary argument on appeal is that the qualified examiner's testimony failed to establish a nexus between the petitioner's personality disorder and his inability to control his sexual impulses -- a necessary connection to satisfy the third element of sexual dangerousness. See Souza, 87 Mass. App. Ct. at 169.

For the Commonwealth to proceed to trial in a discharge proceeding under § 9, at least one of the two qualified examiners must opine that the petitioner remains sexually dangerous. See McIntire, 458 Mass. at 258; Johnstone, petitioner, 453 Mass. 544, 553 (2009). At trial, “[a] qualified examiner's opinion testimony is ‘the essential basis for a finding of sexual dangerousness.’ ” George, 477 Mass. at 339, quoting Green, petitioner, 475 Mass. 624, 630 (2016). Accordingly, a finding of sexual dangerousness must be based, at least in part, on a qualified examiner's credible opinion testimony. See Green, supra at 625. In addition to their opinion testimony, qualified examiners’ written reports and records are admissible to illustrate their findings of sexual dangerousness. See Santos, petitioner, 461 Mass. 565, 569 (2012).

Having reviewed Leguízamo's testimony and written report, which was admitted in evidence, we are satisfied that he provided the jury with a basis to make the required connection between the petitioner's APD diagnosis and his inability to control his sexual impulses, as required by the statute. To have an APD diagnosis as defined by the Diagnostic and Statistical Manual of Mental Disorders, Leguízamo testified, “The person needs to have a pattern of aggressive behavior, of disregard for rules or laws. Patterns of irresponsible behavior. Having problems meeting responsibilities. Pattern of lying as well. Impulsivity. And these factors need to be, not be part of another disorder such as a thought disorder like schizophrenia.” Leguízamo explained that the APD diagnosis was based on the petitioner's past behavior characterized by impulsivity and defiance, and his prior offenses.

Furthermore, Leguízamo opined that the petitioner's APD qualified as a personality disorder as defined by the statute. Leguízamo highlighted the petitioner's 2015 offense, which occurred while he was receiving outpatient sexual offender treatment, as demonstrating the petitioner's inability to control his sexual impulses. Leguízamo concluded that if the petitioner were to be released into the community, he would be unable to control his impulses and would likely reoffend sexually.

Expert witnesses do not have to testify “in the precise words of the statute.” Commonwealth v. Walsh, 376 Mass. 53, 58 (1978). Viewing the evidence in the light most favorable to the Commonwealth, see Pariseau, 102 Mass. App. Ct. at 76, a rational trier of fact could have found beyond a reasonable doubt, based on the qualified examiner's testimony and report, that the petitioner remained an SDP because his APD prevented him from controlling his sexual impulses. The judge did not err in denying the petitioner's motions for directed verdict.

Because Leguízamo's opinion evidence was sufficient to carry the Commonwealth's burden, we need not consider the petitioner's argument that the jury may have improperly used the CAB witness's testimony and report to supplement the qualified examiner's testimony. In any event, where, as here, the jury's finding of sexual dangerousness is based at least in part on crediting a qualified examiner's opinion that the petitioner remained sexually dangerous, and the judge gives a jury instruction to that effect,² the jury may look to other evidence to find support for the qualified examiner's opinion. See Green, 475 Mass. at 625, 630-631.

3. Responses to jury questions. After the jury began deliberations, they sent two questions to the judge seeking clarification of “the statutory antisocial personality disorder” and the role the petitioner's previous SDP adjudication played in the current proceeding. The petitioner argues that the jury's confusion about the required proof was evident from these questions, and that the proper way to resolve this confusion was to repeat the Green instruction, which was part of the original charge, to reiterate that the jury were required to find Leguízamo credible in order to find that the petitioner remained an SDP. As the petitioner did not contemporaneously object when the judge reinstructed the jury, and as this claim is raised for the first time on appeal, we consider whether there was any error and, if so, whether the error created a substantial risk of a miscarriage of justice. See R.B., petitioner, 479 Mass. 712, 717-718 (2018).

A trial judge possesses broad discretion in deciding how to respond to questions from the jury. See Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998); Commonwealth v. Waite, 422 Mass. 792, 807 n.11 (1996). “The necessity, extent, and character of supplemental instructions in response to a jury request are matters within a trial judge's discretion.” Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990).

The first question stated, “[C]an we please get the definition of the statutory antisocial personality disorder?” The judge directed the jury back to the jury instructions, which had been printed and provided to them; reiterated the Commonwealth's burden; and further clarified that there was no statutory definition of APD.

The first question did not ask about what evidence or whose testimony the jury were permitted to consider. Instead, they were searching for a specific statutory definition for APD. As such a definition did not exist, the judge properly directed the jury back to the statutory definition of personality disorder. He properly emphasized that the Commonwealth had to prove that the petitioner lacked control of his sexual impulses, and that such lack of control must stem from either a mental abnormality or personality disorder. Although the judge then reminded the jury to be guided by the evidence, specifically the experts’ testimony and reports -- which included the petitioner's experts as well as the Commonwealth's -- this instruction did not conflict with the Green instruction, which the jury had previously received and had with them, in writing, in the jury room. See note 2, supra.

The second question asked, for someone previously adjudicated as an SDP, meaning they had met the criteria for antisocial personality disorder or mental condition, “do we take that as evidence of having ․ antisocial personality disorder/mental condition?” This question showed that the jurors were unsure how the previous SDP adjudication factored into the present trial.

In response to this question, the judge redirected the jury to the instructions that explained what evidence they could consider in determining whether the Commonwealth had met its burden. To provide further clarification, the judge instructed that a prior finding that the petitioner was an SDP did not mean that the petitioner was still an SDP, reminding the jury that their task was to determine, based on the evidence presented in the current trial, if the Commonwealth had established beyond a reasonable doubt that the petitioner remained an SDP.

Restating the Green instruction would not have answered either of the jury's questions (which explains why the petitioner's counsel did not ask the judge to give it). The judge's answers were responsive to the questions the jury asked, correct as a matter of law, and not confusing or misleading. As the judge did not abuse his discretion in responding to the jury's questions, there can be no substantial risk of a miscarriage of justice. See R.B., 479 Mass. at 718.

Judgment affirmed.

FOOTNOTES

1.   The petitioner does not argue that the evidence was insufficient for the jury to find that he does in fact have APD.

2.   The judge instructed in his principal charge that the jury could not find the petitioner to be an SDP unless they credited Leguizamo's opinion, although they were permitted to find support for his opinion anywhere in the evidence. The petitioner does not argue that this instruction was incorrect.