SCOTT RATHBUN, petitioner.

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
25-P-467
SCOTT RATHBUN, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, Scott Rathbun, appeals from his
adjudication as a sexually dangerous person (SDP) and denial of
release under G. L. c. 123A, § 9 (§ 9). The petitioner argues
that the qualified examiner's opinion offered at trial by the
Commonwealth was insufficient to support the jury's finding that
he remained an SDP, and that the trial judge erred in his
responses to the jury's questions during deliberations. We
affirm.
Background. Between 2002 and 2015, the petitioner
committed numerous sexual offenses against adult men. In 2018,
the Commonwealth filed a petition under G. L. c. 123A, § 12, to
have the petitioner civilly committed to the Massachusetts
Treatment Center (MTC) as an SDP. In December 2021, a jury

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returned a verdict that the petitioner was an SDP, and he was
committed to the MTC.
In 2022, the petitioner filed a petition under § 9, to be
released from the MTC. The Commonwealth requested a jury trial,
which was held in July 2024. At trial, the Commonwealth
presented the testimony of two psychologists: Dr. Alejandro
Leguízamo, a qualified examiner; and Dr. Carla Muñoz, a member
of the Community Access Board (CAB). The petitioner called
three witnesses: Dr. Kerry Nelligan, a psychologist and the
other qualified examiner; Dr. Joseph Plaud, a psychologist; and
Christina Patts, a licensed social worker.
Leguízamo opined that the petitioner met the criteria for
an SDP. Leguízamo diagnosed the petitioner as having an
antisocial personality disorder (APD), and explained that he
based his diagnosis on the petitioner's past impulsive and
defiant behaviors, and his difficulty following rules, even in a
controlled environment. Leguízamo concluded that if the
petitioner was released into the community, his APD would
prevent him from controlling his sexual impulses, making him
likely to reoffend sexually. Muñoz testified that she and the
CAB unanimously agreed that the petitioner had ADP and was an
SDP. The petitioner's experts opined that he did not have a
personality disorder and was not sexually dangerous.

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The jury determined that the petitioner remained sexually
dangerous.
Discussion. 1. Mootness. After the briefs had been
filed, the Commonwealth submitted a letter under
Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019),
suggesting that the appeal may now be moot because the
petitioner had filed a subsequent § 9 petition for release, and
on May 12, 2026, a different jury returned a verdict that he
remained an SDP.
Although a decision in the petitioner's favor in this
appeal would not entitle him to immediate discharge, see
McIntire, petitioner, 458 Mas. 257, 263-267 (2010), cert.
denied, 563 U.S. 1012 (2011), because he remains civilly
committed, the sufficiency of the qualified examiner's opinion
of his sexual dangerousness will likely arise in future § 9
proceedings. Issues are moot when the parties "would no longer
be personally affected by the resulting decision" (citation
omitted). Harmon v. Commissioner of Correction, 487 Mass. 470,
475 (2021). That is not the case here. Furthermore, there is
no suggestion in McIntire, supra, that the subsequent denials of
that petitioner's § 9 petitions rendered moot the issues
presented in McIntire itself, which arose from a prior

4
adjudication of sexual dangerousness. Accordingly, we address
the merits.
2. Qualified examiner's testimony. The petitioner argues
that the trial judge should have granted his motions for
directed verdict because the opinion of the Commonwealth's
qualified examiner, Leguízamo, was insufficient to support a
finding beyond a reasonable doubt that the petitioner remained
an SDP.
During a § 9 hearing the Commonwealth must prove three
elements beyond a reasonable doubt: (1) that the petitioner had
been adjudicated an SDP in the past; (2) that the petitioner is
diagnosed with a mental abnormality or personality disorder; and
(3) that the petitioner's mental abnormality or personality
disorder makes him likely to engage in sexual offenses if not
confined to a secure facility. See G. L. c. 123A, § 1;
Commonwealth v. Fay, 467 Mass. 574, 580, cert. denied, 574 U.S.
858 (2014); Souza, petitioner, 87 Mass. App. Ct. 162, 169
(2015). "On appeal, we ask 'whether, after viewing the evidence
(and all permissible inferences) in the light most favorable to
the Commonwealth, 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.'" Pariseau,
petitioner, 102 Mass. App. Ct. 67, 76 (2023), quoting

5
Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J.
concurring). See Souza, supra.
With respect to the second element, "personality disorder"
is defined as "a congenital or acquired physical or mental
condition that results in a general lack of power to control
sexual impulses." G. L. c. 123A, § 1. "[A] 'personality
disorder' as defined in G. L. c. 123A, § 1, is relevant to the
sexual dangerousness calculus only if the 'condition . . .
results in a general lack of power to control sexual impulses.'"
Commonwealth v. George, 477 Mass. 331, 336 (2017), quoting
G. L. c. 123A, § 1. Thus, a diagnosis of a personality disorder
such as APD is a sufficient basis for adjudication as an SDP so
long as it is predictive, combined with other evidence, of the
petitioner's inability to control his sexual impulses. See
George, supra.
It is undisputed that the petitioner was committed to the
MTC after being adjudicated as an SDP. Additionally, it is
undisputed that the petitioner has a personality disorder,
specifically, APD.1 The petitioner's primary argument on appeal
is that the qualified examiner's testimony failed to establish a
nexus between the petitioner's personality disorder and his
1 The petitioner does not argue that the evidence was
insufficient for the jury to find that he does in fact have APD.

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inability to control his sexual impulses -- a necessary
connection to satisfy the third element of sexual dangerousness.
See Souza, 87 Mass. App. Ct. at 169.
For the Commonwealth to proceed to trial in a discharge
proceeding under § 9, at least one of the two qualified
examiners must opine that the petitioner remains sexually
dangerous. See McIntire, 458 Mass. at 258; Johnstone,
petitioner, 453 Mass. 544, 553 (2009). At trial, "[a] qualified
examiner's opinion testimony is 'the essential basis for a
finding of sexual dangerousness.'" George, 477 Mass. at 339,
quoting Green, petitioner, 475 Mass. 624, 630 (2016).
Accordingly, a finding of sexual dangerousness must be based, at
least in part, on a qualified examiner's credible opinion
testimony. See Green, supra at 625. In addition to their
opinion testimony, qualified examiners' written reports and
records are admissible to illustrate their findings of sexual
dangerousness. See Santos, petitioner, 461 Mass. 565, 569
(2012).
Having reviewed Leguízamo's testimony and written report,
which was admitted in evidence, we are satisfied that he
provided the jury with a basis to make the required connection
between the petitioner's APD diagnosis and his inability to
control his sexual impulses, as required by the statute. To

7
have an APD diagnosis as defined by the Diagnostic and
Statistical Manual of Mental Disorders, Leguízamo testified,
"The person needs to have a pattern of aggressive behavior, of
disregard for rules or laws. Patterns of irresponsible
behavior. Having problems meeting responsibilities. Pattern of
lying as well. Impulsivity. And these factors need to be, not
be part of another disorder such as a thought disorder like
schizophrenia." Leguízamo explained that the APD diagnosis was
based on the petitioner's past behavior characterized by
impulsivity and defiance, and his prior offenses.
Furthermore, Leguízamo opined that the petitioner's APD
qualified as a personality disorder as defined by the statute.
Leguízamo highlighted the petitioner's 2015 offense, which
occurred while he was receiving outpatient sexual offender
treatment, as demonstrating the petitioner's inability to
control his sexual impulses. Leguízamo concluded that if the
petitioner were to be released into the community, he would be
unable to control his impulses and would likely reoffend
sexually.
Expert witnesses do not have to testify "in the precise
words of the statute." Commonwealth v. Walsh, 376 Mass. 53, 58
(1978). Viewing the evidence in the light most favorable to the
Commonwealth, see Pariseau, 102 Mass. App. Ct. at 76, a rational

8
trier of fact could have found beyond a reasonable doubt, based
on the qualified examiner's testimony and report, that the
petitioner remained an SDP because his APD prevented him from
controlling his sexual impulses. The judge did not err in
denying the petitioner's motions for directed verdict.
Because Leguízamo's opinion evidence was sufficient to
carry the Commonwealth's burden, we need not consider the
petitioner's argument that the jury may have improperly used the
CAB witness's testimony and report to supplement the qualified
examiner's testimony. In any event, where, as here, the jury's
finding of sexual dangerousness is based at least in part on
crediting a qualified examiner's opinion that the petitioner
remained sexually dangerous, and the judge gives a jury
instruction to that effect,2 the jury may look to other evidence
to find support for the qualified examiner's opinion. See
Green, 475 Mass. at 625, 630-631.
3. Responses to jury questions. After the jury began
deliberations, they sent two questions to the judge seeking
clarification of "the statutory antisocial personality disorder"
and the role the petitioner's previous SDP adjudication played
2 The judge instructed in his principal charge that the jury
could not find the petitioner to be an SDP unless they credited
Leguizamo's opinion, although they were permitted to find
support for his opinion anywhere in the evidence. The
petitioner does not argue that this instruction was incorrect.

9
in the current proceeding. The petitioner argues that the
jury's confusion about the required proof was evident from these
questions, and that the proper way to resolve this confusion was
to repeat the Green instruction, which was part of the original
charge, to reiterate that the jury were required to find
Leguízamo credible in order to find that the petitioner remained
an SDP. As the petitioner did not contemporaneously object when
the judge reinstructed the jury, and as this claim is raised for
the first time on appeal, we consider whether there was any
error and, if so, whether the error created a substantial risk
of a miscarriage of justice. See R.B., petitioner, 479 Mass.
712, 717-718 (2018).
A trial judge possesses broad discretion in deciding how to
respond to questions from the jury. See Commonwealth v.
Monteagudo, 427 Mass. 484, 488 (1998); Commonwealth v. Waite,
422 Mass. 792, 807 n.11 (1996). "The necessity, extent, and
character of supplemental instructions in response to a jury
request are matters within a trial judge's discretion."
Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990).
The first question stated, "[C]an we please get the
definition of the statutory antisocial personality disorder?"
The judge directed the jury back to the jury instructions, which
had been printed and provided to them; reiterated the

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Commonwealth's burden; and further clarified that there was no
statutory definition of APD.
The first question did not ask about what evidence or whose
testimony the jury were permitted to consider. Instead, they
were searching for a specific statutory definition for APD. As
such a definition did not exist, the judge properly directed the
jury back to the statutory definition of personality disorder.
He properly emphasized that the Commonwealth had to prove that
the petitioner lacked control of his sexual impulses, and that
such lack of control must stem from either a mental abnormality
or personality disorder. Although the judge then reminded the
jury to be guided by the evidence, specifically the experts'
testimony and reports -- which included the petitioner's experts
as well as the Commonwealth's -- this instruction did not
conflict with the Green instruction, which the jury had
previously received and had with them, in writing, in the jury
room. See note 2, supra.
The second question asked, for someone previously
adjudicated as an SDP, meaning they had met the criteria for
antisocial personality disorder or mental condition, "do we take
that as evidence of having . . . antisocial personality
disorder/mental condition?" This question showed that the

11
jurors were unsure how the previous SDP adjudication factored
into the present trial.
In response to this question, the judge redirected the jury
to the instructions that explained what evidence they could
consider in determining whether the Commonwealth had met its
burden. To provide further clarification, the judge instructed
that a prior finding that the petitioner was an SDP did not mean
that the petitioner was still an SDP, reminding the jury that
their task was to determine, based on the evidence presented in
the current trial, if the Commonwealth had established beyond a
reasonable doubt that the petitioner remained an SDP.
Restating the Green instruction would not have answered
either of the jury's questions (which explains why the
petitioner's counsel did not ask the judge to give it). The
judge's answers were responsive to the questions the jury asked,
correct as a matter of law, and not confusing or misleading. As
the judge did not abuse his discretion in responding to the

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jury's questions, there can be no substantial risk of a
miscarriage of justice. See R.B., 479 Mass. at 718.
Judgment affirmed.
By the Court (Massing,
Grant & Wood, JJ.3),
Clerk
Entered: October 14, 2026.
3 The panelists are listed in order of seniority.