Massachusetts Appeals Court Concludes Level Three Sex Offender Violated His Probation by Trying to Enter School

A divided panel of the Massachusetts Appeals Court today upheld a superior court judge’s ruling that a level three sex offender, on probation for dissemination of child pornography, violated the terms of his probation by trying to enter an elementary school.  The name of the case is Commonwealth v. Medeiros

In 2001, the defendant was arrested after exposing himself to two girls who were walking home from school.  He ultimately pled guilty to multiple counts of  dissemination of matter harmful to a minor, possession of child pornography, and dissemination of child pornography.  After serving a prison sentence, he was on probation for five years and he was ordered to have “no involvement with minors without responsible adult supervision.”  One morning in December of 2013, while he was still on probation, the defendant was walking next to an elementary school in New Bedford.  An off-duty police officer watched as the defendant entered school property and approached a door in the back of the building.  The defendant looked through a glass window and tried to open the door, which was locked.  Shortly thereafter, the off-duty officer confronted the defendant and asked what he was doing.  The defendant was unable to provide an explanation.  A second cop arrived at the scene and learned the defendant was a level three sex offender (level three is the most dangerous).  Ultimately the defendant was charged with violating the “no involvement with minors” condition of his probation and, following a probation violation hearing, a superior court judge sentenced him to serve 10-14 years in state prison.  He appealed and in a 3-2 decision, the Appeals Court affirmed the superior court judge.

The majority began its analysis by pointing out the law requires that a probationer be given fair warning of the conduct that could result in a probation violation – but such reasonable guidance is not required to describe every possible detail of a violation.  The condition will be upheld if a person of common intelligence would understand its meaning.  The defendant argued on appeal that “no involvement” could only mean he was prohibited from physically interacting or engaging with a child.  The Appeals Court disagreed, reasoning that “involvement” is a broad word that means to “affect” or “implicate.”  In this case, the safety of the school children was implicated when the defendant tried to enter the building, even if the students were unaware of the defendant’s presence.  The defendant therefore violated his probation by going onto school property while school was in session and trying to enter the school.

Two justices dissented.  They agreed with the majority that the defendant had tried to be involved with children and if he had succeeded (without supervision), he would have been in violation of his probation.  However, because the door he tried to enter was locked, the defendant was unable to complete the act that would have constituted a violation.  Therefore, according to the dissent, the defendant’s conduct was only an attempted probation violation and should not have been punished.

The dissent is correct.  Despite his intentions, the defendant did not have involvement with minors and his probation should not have been revoked.  It will be interesting to see if the Supreme Judicial Court reviews the Appeals Court decision.