Commonwealth v. Riz (Lawyers Weekly No. 11-100-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   14-P-1763                                       Appeals Court   COMMONWEALTH  vs.  JOSE RIZ.     No. 14-P-1763.   Bristol.     March 9, 2016. – August 12, 2016.   Present:  Cypher, Cohen, & Neyman, JJ.     Practice, Criminal, Probation, Sentence.  Constitutional Law, Sentence.  Due Process of Law, Sentence.     Indictments found and returned in the Superior Court Department on July 21, 2011.   The cases were tried before Gary A. Nickerson, J.     James A. Reidy for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth.     NEYMAN, J.  In this case, we consider whether a probation condition that the defendant, Jose A. Riz, not “minimize” his criminal activity “during his sex abuse treatment . . . in his contact with church authorities . . . [and] in dealing with [his] probation officer” is unconstitutionally vague.  We hold that the condition does not provide reasonable guidance with respect to what conduct is prohibited, and therefore violates the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution.[1] Background.  In 2010 and 2011, the defendant lived at his brother’s apartment, along with his brother and his brother’s oldest daughter (the victim, who was also the defendant’s niece).  During this timeframe, the defendant had sexual contact with the victim on multiple occasions, including vaginal, anal, and oral sex.  The victim was thirteen and fourteen years old at the time, while the defendant was eighteen and nineteen years old.  The final instance of abuse occurred on May 8, 2011.  That night, the defendant, who had consumed alcohol and smoked marijuana, pulled the victim into his room, undressed her, lay on top of her, and touched her vagina with his penis.  The defendant’s brother discovered the victim leaving the defendant’s room, and the victim subsequently told her mother of her sexual relationship with the defendant.  The defendant was arrested, and, during an interview with the police, confessed to having had sex with the victim on more than one occasion.  The defendant was indicted for statutory rape, G. L. c. 265, § 23; incest, G. L. c. 272, § 17; and assault of a child under the age of sixteen with intent to commit rape, G. L. c. 265, § 24B.[2]  At his jury trial in the Superior Court, the defendant testified that he was drunk on the night of May 8, denied having any sexual contact with the victim, and claimed […]

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