ROBERT LOVEJOY

• Court: Massachusetts Appeals Court
• Decided: February 12, 2025
• Docket: 23-P-0903
• Status: Unpublished

Opinion

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

23-P-903

ROBERT LOVEJOY, petitioner.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Robert Lovejoy filed a petition under G. L. c. 123A, § 9,

seeking to be discharged from his civil commitment to the

Massachusetts Treatment Center (MTC) as a sexually dangerous

person. His commitment was continued, however, after a Superior

Court jury found that he remained sexually dangerous. The

petitioner appeals, arguing that the evidence was insufficient

to support the jury's verdict. We affirm.

In 1987 a five year old child with disabilities told his

mother that he did not want to go to school because the

petitioner, the bus driver, was constantly putting his hands in

the boy's pants and playing with his "private parts." The

petitioner was convicted of three counts of indecent assault and

battery on a child under fourteen for this conduct. While on

probation for those convictions, the petitioner sexually assaulted his three year old stepdaughter. The girl reported

that the petitioner put his "dickie" inside her "butterfly," put

his penis in her mouth, and made her "jump up and down on his

dickie." The petitioner admitted to police that he sexually

assaulted the girl and later pleaded guilty to rape of a child

with force and indecent assault and battery on a child under

fourteen.

In 2009 the petitioner was civilly committed to the MTC as

a sexually dangerous person. In 2019 he filed the underlying

petition for examination and discharge, alleging that he was no

longer sexually dangerous. A jury trial was held, at the

conclusion of which the jury returned a verdict that the

Commonwealth met its burden of proving that the petitioner "is a

sexually dangerous person today." The petitioner was then

returned to his confinement at the MTC.

The petitioner's sole argument on appeal is that the trial

judge erred in denying his motions for a directed verdict, made

at the close of the Commonwealth's case and again at the close

of all the evidence. In assessing his argument, we "view[] the

evidence (and all permissible inferences) in the light most

favorable to the Commonwealth" to determine whether "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" (citation omitted). Souza, petitioner,

2 87 Mass. App. Ct. 162, 169 (2015). As relevant here, G. L.

c. 123A, § 1, required the Commonwealth to prove that the

petitioner was "previously adjudicated" a sexually dangerous

person, that his "misconduct in sexual matters indicates a

general lack of power to control his sexual impulses, as

evidenced by repetitive or compulsive sexual misconduct by

either violence against any victim, or aggression against any

victim under the age of 16 years," and that "as a result, [he]

is likely to attack or otherwise inflict injury on such victims

because of his uncontrolled or uncontrollable desires."

The Commonwealth met its burden of proving these elements.

The parties stipulated that the petitioner was previously

adjudicated a sexually dangerous person, and the evidence at

trial was sufficient to show that he continued to meet that

definition. The Commonwealth presented the testimony of two

qualified examiners and a psychologist member of the Community

Access Board (CAB), each of whom opined that the petitioner

remained sexually dangerous. All three testified that the

petitioner met the criteria for pedophilic disorder, sexual

sadism disorder, and antisocial personality disorder. They also

agreed that the petitioner was unable to control his sexual

impulses, as evidenced by the repetitive and compulsive nature

of his offending. One of the qualified examiners testified that

the petitioner admitted to her that he has sixty-one

3 prepubescent victims in addition to the victims of the crimes of

which he was convicted. Similarly, the petitioner admitted

during his CAB evaluation that he has sixty-three victims. And

in the past, the petitioner reported having as many as 150

victims.

Although past misconduct alone is inadequate to support a

present finding of sexual dangerousness, see Dutil, petitioner,

437 Mass. 9, 16 (2002), the Commonwealth was not required to

prove recent sexual misconduct to meet its burden, as the

petitioner appears to argue. "Examples of recent conduct

showing sexual dangerousness may often be lacking where the

individual's dangerous disposition is of a sort that there will

be no occasion for that disposition to manifest itself in a

secure environment." Hill, petitioner, 422 Mass. 147, 157,

cert. denied, 519 U.S. 867 (1996). The Commonwealth may

therefore prove its case through evidence that "extrapolate[s]

from earlier incidents which . . . did show dangerousness . . .

to the present by considering whether as a general matter this

type of dangerous disposition has a tendency to persist." Id.

The Commonwealth presented such evidence here. Its experts

testified that the repetitive nature of the petitioner's

offending showed sexual compulsion; that he attended treatment

inconsistently, sometimes withdrawing for long periods of time;

that he failed to make meaningful progress in treatment; and

4 that he continued to exhibit antisocial behavior, including

lying and manipulation, while confined at the MTC. Based on

these factors, among others, all three experts concluded that

the petitioner was currently unable to control his sexual

impulses and that he was likely to commit a future sex offense

if released into the community. This testimony was sufficient

to prove that the petitioner was still sexually dangerous. See

Souza, petitioner, 87 Mass. App. Ct. at 169-172; Commonwealth v.

Bradway, 62 Mass. App. Ct. 280, 290-291 (2004).

The testimony of the petitioner's expert did not render the

Commonwealth's proof insufficient. Although this expert opined

that the petitioner was not likely to reoffend if released, the

jury were not required to credit his opinion. See Commonwealth

v. Sargent, 449 Mass. 576, 583 (2007), quoting Bradway, 62 Mass.

App. Ct. at 291 ("Weighing and crediting the testimony of

witnesses during proceedings under G. L. c. 123A 'are for the

trier of fact, and we will not substitute our judgment for that

of the trier of fact'"). Rather, viewing the evidence in the

light most favorable to the Commonwealth, a rational juror could

5 have found beyond a reasonable doubt that the petitioner

remained a sexually dangerous person.

Judgment affirmed.

By the Court (Rubin, Shin & Hodgens, JJ. 1),

Clerk

Entered: February 12, 2025.

1 The panelists are listed in order of seniority.