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
24-P-906
STEVEN WAYLEIN, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial on his G. L. c. 123A, § 9, petition for
release, the petitioner appeals from a jury verdict that he
remains a sexually dangerous person (SDP). We affirm.
The petitioner first asserts that the due process concerns
identified by the Supreme Judicial Court in Santos, petitioner,
461 Mass. 565, 569 (2012), required the trial judge to admit
into evidence a report prepared by a social worker containing
the petitioner's release plan. We disagree.
"We review evidentiary rulings for abuse of discretion,"
Commonwealth v. Denton, 477 Mass. 248, 250 (2017), reversing
only if the judge made "a clear error of judgment in weighing
the factors relevant to the decision . . . such that the
decision falls outside the range of reasonable alternatives"
(quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). As the defendant timely objected,
we review any error under the prejudicial error standard. See
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
Santos contemplated admission of certain expert reports
under G. L. c. 123A, § 9, that would otherwise be inadmissible
under the common-law rules of evidence. See Santos, 461 Mass.
at 570. But the social worker whose report is at issue here was
a fact witness, not an expert. She was identified as a fact
witness on the joint proposed witness list, and petitioner's
counsel confirmed as much at a hearing on a motion in limine
regarding the social worker's testimony:
"[S]he's not going to testify with respect to anything regarding sexual dangerousness. That's not her role here. The role of [the social worker] is that she wrote a release plan. It's simply outlining what Mr. Waylein's options are. . . . She's not going to be giving any kind of opinions on sexual dangerousness. She's not going to be giving any kind of opinions."
Accordingly, it was not error to exclude the report as
inadmissible hearsay. See id. Cf. Commonwealth v. Reese, 438
Mass. 519, 527 (2003) ("catchall" exception in G. L. c. 123A,
§ 14 (c), "authorizes the admission only of evidence that is
independently admissible under the rules of evidence").
In any event, the exclusion of the report did not prejudice
the petitioner because the release plan it contained was fully
presented to the jury. The social worker was allowed to, and
2 did, testify about the services available to the petitioner if
he were to be released. Petitioner's counsel also cross-
examined an expert for the Commonwealth on the services
available and the social worker's discussion thereof.
The petitioner next asserts error with respect to two
portions of the Commonwealth's closing. In considering whether
a claimed error in a prosecutor's closing requires reversal, we
examine four factors, "(1) whether the defendant seasonably
objected; (2) whether the error was limited to collateral issues
or went to the heart of the case; (3) what specific or general
instructions the judge gave to the jury which may have mitigated
the mistake" and, finally, "(4) whether the error, in the
circumstances, possibly made a difference in the jury's
conclusion" (quotation and citation omitted). Commonwealth v.
Lewis, 465 Mass. 119, 130-131 (2013). Because the asserted
error was not preserved, we review for a substantial risk of
miscarriage of justice, R.B., petitioner, 479 Mass. 712, 713
(2018), and discern none.
The petitioner maintains it was improper for the
Commonwealth to compare his two-year course of offending against
victim 1 to his having "only offended against [victim 2] once"
before he "got caught," because it invited the jury to speculate
that he "would have continued to offend against [victim 2] had
3 she not reported the first incident." Viewed in context, there
was no error. The petitioner had suggested that his offenses
against victim 2, compared to those against victim 1,
demonstrated "the opposite" of "an escalating pattern." The
challenged statement fairly "point[ed] out the weaknesses of the
[petitioner's] case and ma[de] a fair reply to [the
petitioner's] closing argument" (quotation and citation
omitted). Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018).
And, by saying "[s]o we don't know had [the petitioner] not been
caught what could happen" the Commonwealth -- appropriately --
"marshal[ed] the evidence and suggest[ed] inferences that the
jury may draw from it" (quotation and citation omitted).
Commonwealth v. Roy, 464 Mass. 818, 829 (2013). On this record,
it was not error for the Commonwealth to suggest to the jury
that the petitioner's conduct toward victim 1 could have been
repeated against victim 2. See Reese, 438 Mass. at 525 n.8
("The fact that aberrant behavior is abbreviated by law
enforcement before it has run its full course can hardly be said
to affect the underlying mental condition causing it").
The petitioner also challenges a statement by the
Commonwealth suggesting that the recidivism rates associated
with the Static-99R are underestimated. We review for a
substantial risk of a miscarriage of justice. This, too, was a
4 "reasonable and possible" inference based on the evidence at
trial. See Roy, 464 Mass. at 829. An expert for the
Commonwealth testified that the Static-99R recidivism rates
included only those offenders whose new crimes were reported,
and who were charged or convicted, so those rates do not account
for individuals whose offenses are undetected. It was fair to
suggest that recidivism rates may therefore be underestimated.
Furthermore, these challenged statements did not create a
substantial risk of a miscarriage of justice. "Remarks made
during closing arguments are considered in the context of the
whole argument, the evidence admitted at trial, and the judge's
instructions to the jury" (quotation and citation omitted).
Commonwealth v. Nelson, 468 Mass. 1, 10 (2014). The judge twice
instructed the jury that "closing arguments are not evidence."
We presume the jury followed these instructions. Wyatt,
petitioner, 428 Mass. 347, 359 (1998). And the Commonwealth's
case was strong; it presented evidence through three qualified
experts that the petitioner's pedophilic disorder was a
prominent risk factor associated with an increased risk of
sexual reoffense, rose to the level of a "mental abnormality" as
defined in G. L. c.
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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
24-P-906
STEVEN WAYLEIN, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial on his G. L. c. 123A, § 9, petition for
release, the petitioner appeals from a jury verdict that he
remains a sexually dangerous person (SDP). We affirm.
The petitioner first asserts that the due process concerns
identified by the Supreme Judicial Court in Santos, petitioner,
461 Mass. 565, 569 (2012), required the trial judge to admit
into evidence a report prepared by a social worker containing
the petitioner's release plan. We disagree.
"We review evidentiary rulings for abuse of discretion,"
Commonwealth v. Denton, 477 Mass. 248, 250 (2017), reversing
only if the judge made "a clear error of judgment in weighing
the factors relevant to the decision . . . such that the
decision falls outside the range of reasonable alternatives"
(quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). As the defendant timely objected,
we review any error under the prejudicial error standard. See
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
Santos contemplated admission of certain expert reports
under G. L. c. 123A, § 9, that would otherwise be inadmissible
under the common-law rules of evidence. See Santos, 461 Mass.
at 570. But the social worker whose report is at issue here was
a fact witness, not an expert. She was identified as a fact
witness on the joint proposed witness list, and petitioner's
counsel confirmed as much at a hearing on a motion in limine
regarding the social worker's testimony:
"[S]he's not going to testify with respect to anything regarding sexual dangerousness. That's not her role here. The role of [the social worker] is that she wrote a release plan. It's simply outlining what Mr. Waylein's options are. . . . She's not going to be giving any kind of opinions on sexual dangerousness. She's not going to be giving any kind of opinions."
Accordingly, it was not error to exclude the report as
inadmissible hearsay. See id. Cf. Commonwealth v. Reese, 438
Mass. 519, 527 (2003) ("catchall" exception in G. L. c. 123A,
§ 14 (c), "authorizes the admission only of evidence that is
independently admissible under the rules of evidence").
In any event, the exclusion of the report did not prejudice
the petitioner because the release plan it contained was fully
presented to the jury. The social worker was allowed to, and
2 did, testify about the services available to the petitioner if
he were to be released. Petitioner's counsel also cross-
examined an expert for the Commonwealth on the services
available and the social worker's discussion thereof.
The petitioner next asserts error with respect to two
portions of the Commonwealth's closing. In considering whether
a claimed error in a prosecutor's closing requires reversal, we
examine four factors, "(1) whether the defendant seasonably
objected; (2) whether the error was limited to collateral issues
or went to the heart of the case; (3) what specific or general
instructions the judge gave to the jury which may have mitigated
the mistake" and, finally, "(4) whether the error, in the
circumstances, possibly made a difference in the jury's
conclusion" (quotation and citation omitted). Commonwealth v.
Lewis, 465 Mass. 119, 130-131 (2013). Because the asserted
error was not preserved, we review for a substantial risk of
miscarriage of justice, R.B., petitioner, 479 Mass. 712, 713
(2018), and discern none.
The petitioner maintains it was improper for the
Commonwealth to compare his two-year course of offending against
victim 1 to his having "only offended against [victim 2] once"
before he "got caught," because it invited the jury to speculate
that he "would have continued to offend against [victim 2] had
3 she not reported the first incident." Viewed in context, there
was no error. The petitioner had suggested that his offenses
against victim 2, compared to those against victim 1,
demonstrated "the opposite" of "an escalating pattern." The
challenged statement fairly "point[ed] out the weaknesses of the
[petitioner's] case and ma[de] a fair reply to [the
petitioner's] closing argument" (quotation and citation
omitted). Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018).
And, by saying "[s]o we don't know had [the petitioner] not been
caught what could happen" the Commonwealth -- appropriately --
"marshal[ed] the evidence and suggest[ed] inferences that the
jury may draw from it" (quotation and citation omitted).
Commonwealth v. Roy, 464 Mass. 818, 829 (2013). On this record,
it was not error for the Commonwealth to suggest to the jury
that the petitioner's conduct toward victim 1 could have been
repeated against victim 2. See Reese, 438 Mass. at 525 n.8
("The fact that aberrant behavior is abbreviated by law
enforcement before it has run its full course can hardly be said
to affect the underlying mental condition causing it").
The petitioner also challenges a statement by the
Commonwealth suggesting that the recidivism rates associated
with the Static-99R are underestimated. We review for a
substantial risk of a miscarriage of justice. This, too, was a
4 "reasonable and possible" inference based on the evidence at
trial. See Roy, 464 Mass. at 829. An expert for the
Commonwealth testified that the Static-99R recidivism rates
included only those offenders whose new crimes were reported,
and who were charged or convicted, so those rates do not account
for individuals whose offenses are undetected. It was fair to
suggest that recidivism rates may therefore be underestimated.
Furthermore, these challenged statements did not create a
substantial risk of a miscarriage of justice. "Remarks made
during closing arguments are considered in the context of the
whole argument, the evidence admitted at trial, and the judge's
instructions to the jury" (quotation and citation omitted).
Commonwealth v. Nelson, 468 Mass. 1, 10 (2014). The judge twice
instructed the jury that "closing arguments are not evidence."
We presume the jury followed these instructions. Wyatt,
petitioner, 428 Mass. 347, 359 (1998). And the Commonwealth's
case was strong; it presented evidence through three qualified
experts that the petitioner's pedophilic disorder was a
prominent risk factor associated with an increased risk of
sexual reoffense, rose to the level of a "mental abnormality" as
defined in G. L. c. 123A, § 1, and resulted in his inability to
control his sexual impulses towards children.
5 Finally, we are unpersuaded by the petitioner's assertion
that the burden was impermissibly shifted to him. To begin, the
trial judge was not required to give a jury instruction that a
petitioner is presumed not sexually dangerous. See Wyatt, 428
Mass. at 352 n.10; LeSage, petitioner, 76 Mass. App. Ct. 566,
573-574 (2010). Turning next to the Commonwealth's statements
in opening, they closely tracked the applicable statutory
language and "outline[d] in a general way the nature of the case
which the counsel expect[ed] to be able to prove or support by
evidence" (quotation and citation omitted). Commonwealth v.
Phillips, 495 Mass. 491, 498 (2025). The Commonwealth referred
to the petitioner as an SDP when outlining the anticipated
evidence, saying, "You'll hear evidence that he's committed
repetitive and compulsive sexual offenses . . . that he
currently suffers from a mental condition that predisposes him
to commission of sex offenses, and that because of that and
because of a lack of sex offender treatment, [he] is likely to
re-offend sexually. . ."
The trial judge's instructions were also replete with
reminders that the petitioner had no burden, and that the jurors
were to focus on the petitioner in the present (e.g., the
Commonwealth must prove the petitioner to be a sexually
dangerous person "today," "at present," "presently," "at this
6 time," "now," or "currently"). The trial judge further
instructed that the petitioner had "no burden to prove anything
in this case. The burden of proof never shifts from the
Commonwealth to the petitioner. The burden of proof is on the
Commonwealth and it stays on the Commonwealth throughout the
trial." He also instructed that "the Commonwealth has the
burden of proof beyond a reasonable doubt in this case. [The
petitioner] is not required to prove that he is not sexually
dangerous." We again presume the jury followed these
instructions, Wyatt, 428 Mass. at 359, and conclude "no
reasonable juror could have understood that the defendant was
required to prove anything." See Commonwealth v. Sleeper, 435
Mass. 581, 600 (2002).
Judgment affirmed.
By the Court (Rubin, Walsh & Hershfang, JJ.1),
Clerk Entered: March 12, 2026.
1 The panelists are listed in order of seniority.