Commonwealth v. Almeida (Lawyers Weekly No. 11-046-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1745 Appeals Court COMMONWEALTH vs. DANIEL D. ALMEIDA. No. 11‑P‑1745. Bristol. January 16, 2013. ‑ March 27, 2013. Present: Grasso, Berry, & Kafker, JJ. Sex Offender. Constitutional Law, Sex offender. Due Process of Law, Sex offender. Evidence, Sex offender. Petition for civil commitment filed in the Superior Court Department on July 15, 2009. The case was heard by Robert C. Cosgrove, J. Harry L. Miles for the defendant. Mary O’Neil, Assistant District Attorney, for the Commonwealth. KAFKER, J. In this case, we address an issue raised but not resolved in Commonwealth v. Suave, 460 Mass. 582 (2011) (Suave). In Suave, the court held that civil confinement as a sexually dangerous person (SDP) under G. L. c. 123A (statute) cannot be based, as a general rule, on the likelihood of noncontact sexual offenses alone. See id. at 588. But the court further stated that such noncontact offenses may be committed in a menacing manner that satisfies the statutory requirements if they will “objectively put [a] victim in fear of bodily harm by reason of . . . a contact sex crime.” Ibid. Mindful of the Supreme Judicial Court’s admonition that we must undertake a “fact specific” inquiry, we further define here what it means to be an SDP who is a “menace to the health and safety of others” pursuant to G. L. c. 123A. Id. at 588-589. More particularly, we consider whether the defendant’s “predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime.” Id. at 588. We conclude that his predicted sexual offenses and associated conduct — which do not involve contact sex crimes, but are much like his past crimes that involved stalking-like behavior and breaking and entering into another person’s home for the purpose of voyeurism or exhibitionism — will instill such apprehension. We therefore conclude that the defendant’s commitment as an SDP satisfies the requirements of the statute and substantive due process. We affirm the decision of the trial court. Legal background. Pursuant to G. L. c. 123A, the Commonwealth may petition to commit an individual to the treatment center for sexually dangerous persons (treatment center) for an indefinite period of time, subject to periodic review, upon a showing that he is an SDP. See Commonwealth v. Bruno, […]