Commonwealth v. Joshua M. Jason.

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-1057

COMMONWEALTH

vs.

JOSHUA M. JASON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Joshua M. Jason, appeals from a Superior

Court judge's order denying his motion to vacate the global

positioning system (GPS) monitoring condition of his probation.

We affirm.

Background. The victim was eleven years old when she moved

into the neighborhood where the defendant lived. In 2012, when

the victim was thirteen years old and the defendant was twenty-

one years old, the defendant "began to exchange some [text]

messages" with her, including messages stating that "he wished

he could go back in time and be with her and treat her right."

The "messaging progressed," and on November 8, 2012, the

defendant came to the victim's home while her family was out.

They went into the victim's bedroom and had sexual intercourse.

They did so again the following day. Between 2012 and 2014, "as
the relationship progressed," they had sexual intercourse more

than fifty times.

In 2014, the victim disclosed her relationship with the

defendant and subsequently permitted police investigators to

view her cell phone, which revealed several sexually explicit

messages and "dating type messages." In a message dated October

19, 2014, the defendant asked the victim, "How did they find out

about the sex?" Subsequently, on October 20, 2014, and again on

October 22, 2014, the defendant texted the victim pictures of

his erect penis. At some point, the victim blocked the

defendant on social media. The defendant then created a false

Facebook account to try "to see what [the victim] was doing."

On March 16, 2017, the defendant pleaded guilty to five

counts of rape of a child, G. L. c. 265, § 23, and two counts of

dissemination of matter harmful to a minor, G. L. c. 272, § 28.

He received a sentence of three to five years of incarceration

in State prison, followed by five years of probation. The

conditions of probation included a no contact and stay away

order for both the victim and her family, sex offender

registration, and GPS monitoring, which was mandatory and

automatic at the time under G. L. c. 265, § 47.

In March 2019, two years after the defendant's guilty plea,

the Supreme Judicial Court held that GPS monitoring under G. L.

c. 265, § 47, could no longer be imposed without an

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individualized determination of whether the Commonwealth's

public safety interests outweighed the probationer's reasonable

expectation of privacy. See Commonwealth v. Feliz, 481 Mass.

689, 699-701 (2019), S.C., 486 Mass. 510 (2020). In March 2023,

the defendant filed a motion to vacate the GPS monitoring

condition of probation (motion to vacate). Following a

nonevidentiary hearing, a Superior Court judge (motion judge)1

issued a written memorandum and order denying the motion to

vacate, concluding that "under the particular circumstances of

this case, the government has shown that the government's

interest in monitoring the [defendant's] location outweighs his

right to privacy." This appeal ensued.

Discussion. "Although ordinarily we review a judge's

decision on a motion to vacate a condition of probation for an

abuse of discretion . . . we conduct an independent review

where, as here, the judge's decision was based on a

constitutional determination." Commonwealth v. Roderick, 490

Mass. 669, 673 (2022). "In doing so, we accept findings of fact

by a judge who saw and heard the witnesses, unless those

findings are clearly erroneous, but consider the

1 Where the judge who conducted the guilty plea hearing had
retired, a different Superior Court judge decided the motion to
vacate.

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constitutionality of the search de novo." Id., citing

Commonwealth v. Feliz, 486 Mass. 510, 514 (2020).

Here, the defendant argues, in essence, that the motion

judge failed to adhere to precedent, see Roderick, 490 Mass. at

673, and made findings unsupported by the record or grounded in

inapplicable factors. Pursuant to our de novo review, we agree

with the motion judge that at the time of the motion hearing,

continued GPS monitoring was justified.

GPS monitoring constitutes a search under the Fourth

Amendment and art. 14. Roderick, 490 Mass. at 672. Because

such a search is more than minimally invasive, it requires an

individualized determination of reasonableness under art. 14.

See Feliz, 481 Mass. at 699-700. A probationer has "a

significantly diminished expectation of privacy" and is presumed

"more likely than the ordinary citizen to violate the law"

(citations omitted). Roderick, supra at 673. Even so, because

GPS monitoring is a significant intrusion on a probationer's

liberty and privacy interests, the Commonwealth must demonstrate

how its legitimate public safety interests outweigh the

probationer's "expectation of privacy in his real-time location

information." Id. at 674. We evaluate the strength of the

Commonwealth's interests by considering "the probationer's risk

of recidivism and the danger posed to society should he or she

reoffend; as the probationer's risk of reoffense and degree of

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dangerousness increases, so too does the weight of the

government's interest." Id. at 673. See Feliz, 481 Mass. at

701 ("Whether the government's interest in imposing GPS

monitoring outweighs the privacy intrusion occasioned by GPS

monitoring, thus constituting a reasonable search, depends on a

constellation of factors" and "no one factor will be dispositive

in every case").

We begin our analysis by considering the nature and

severity of the crime. A probationer's degree of dangerousness,

and thus the Commonwealth's "interest in deterrence and

investigation," increases with the severity of the crime.

Roderick, 490 Mass. at 682. Here, the defendant was convicted

of five counts of rape of a child and dissemination of matter

harmful to a minor. The seriousness of the offenses was

aggravated by the youth of the victim and the defendant's

actions to induce her.

We next consider the probationer's classification as a

level two sex offender: a determination, based on clear and

convincing evidence, that he poses a moderate risk of reoffense

and a moderate degree of dangerousness. See Roderick, 490 Mass.

at 680; G. L. c. 6, § 178K (2) (b). "[T]he government has a

valid interest in deterrence and investigation where the

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Commonwealth provides sufficient evidence that a defendant poses

a demonstrable risk of reoffending."2 Roderick, supra at 679.

We also consider, as did the motion judge, the "great

number of repetitive and compulsive contact offenses with a

child over an extended period of time, the degree of emotional

and romantic attachment to the victim that the defendant

exhibited, [and] the obsessive behavior of stalking the victim

on social media after the relationship was ended by her."3

Contrary to the defendant's claim, the record supports these

findings. The defendant targeted a child by engaging in

communications with her via text messages and Skype. He told

her that "he wished he could go back in time and be with her and

treat her right." The messaging "progressed" and escalated

until the defendant went to the victim's home when her family

2 The defendant acknowledges that "[t]he Superior Court
properly relied upon [his] classification at Level 2 by the Sex
Offender Registry Board."

3 In contrast to the present case, Roderick involved two
instances of rape of an adult female in a single night.
Roderick, 490 Mass. at 670. The Supreme Judicial Court
determined that "although the defendant's [level two] SORB
classification . . . provides some reason to believe that he
might recidivate, he has no history of doing so." Id. at 682.
"The government has less of an interest in monitoring a
potential recidivist than a proven one." Id. at 682-683. See
Garcia v. Commonwealth, 486 Mass. 341, 355-356 (2020)
(government had "significant interest" in imposing GPS
monitoring in light of defendant's "repetitive, relatively
recent, and dangerous . . . criminal conduct," which showed that
"risk of recidivism was not fanciful").

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was at work or away and engaged in vaginal intercourse with her.

He then repeated that conduct on more than fifty occasions.

Upon learning that the victim had disclosed their relationship,

and that her mother and others knew about his illicit conduct,

the defendant responded by texting photographs of his erect

penis to the victim on two occasions. After the victim tried to

stop the defendant from contacting her, he created a fake social

media account to contact and follow her. In short, we have

little difficulty determining that the record supports the

judge's findings and conclusions.

We next consider that there was no GPS-enforced

exclusionary zone in the present case. The defendant argues

that the absence of such is a factor to be considered. See

Roderick, 490 Mass. at 681-682 ("There is little question that

the Commonwealth's interest in enforcing the exclusion zone

around the victim's home, in conjunction with its interest in

deterring and investigating future sex offenses, would have

outweighed the incremental privacy intrusion occasioned by GPS

monitoring in the instant case"). While true, that does not end

our analysis. The present case is distinguishable from

Roderick. There, the Supreme Judicial court noted that the

Commonwealth had been unable to contact the victim and was

unsure whether the victim had a domicile or home address that

could be used as the basis of an exclusion zone. Roderick,

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supra at 671, 678. In the present case, by contrast, the victim

attended the hearing on the motion to vacate and submitted a

written statement objecting to the motion to vacate. In that

statement, she explained, inter alia, that she "chose not to

have exclusion zones for the sole purpose of safety. The

thoughts of knowing that [the defendant] would know the area I

was in at most points in my day didn't provide the feeling of

security that I deserved." The judge credited the victim's

explanation and found that the absence of any exclusion zone in

the present case stemmed from the victim's request "that her

address remain anonymous due to fear of the defendant learning

where she resides." The record supports this determination in

view of the victim's representations, as well as the judge's

finding that, at the time of the hearing, the defendant worked

on Cape Cod and the victim lived "in the area." Put simply, the

present case is a far cry from Roderick, and the absence of any

exclusion zone in the present case does not affect the calculus

in a dramatic way.4

Given the seriousness of the offenses, the defendant's

level two sex offender classification, his continuous and

repeated conduct, his emotional and romantic attachment to the

child victim, and the additional information discussed supra, we

4 See note 3, supra.

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conclude that the overall balance of interests at the time of

the motion hearing justified continued GPS monitoring.5

Conclusion. We affirm the motion judge's order dated May

12, 2023, denying the motion to vacate the GPS monitoring

condition of probation.

So ordered.

By the Court (Neyman,
Brennan & Toone, JJ.6),

Assistant Clerk

Entered: June 13, 2024.

5 To the extent we do not discuss other arguments made by
the parties, they have not been overlooked. "We find nothing in
them that requires discussion." Commonwealth v. Domanski, 332
Mass. 66, 78 (1954).
6 The panelists are listed in order of seniority.

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