MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a judgment of the Superior Court that found him to be a sexually dangerous person (SDP) pursuant to G. L. c. 123A, § 14 (d). The defendant argues that the trial judge erred in denying the defendants motion for a required finding of not guilty because there was insufficient evidence to support a finding that he was an SDP -- that is, the evidence was insufficient to show that at the time of trial the defendants mental abnormalities made him “likely to engage in sexual offenses if not confined to a secured facility.” G. L. c. 123A, § 1. Upon review, we are satisfied that the evidence presented by the Commonwealth, including the trial testimony and corresponding reports of several experts, was well grounded in fact and sufficient to support the jurys finding. Accordingly, we affirm.
Background. The defendant has a significant criminal history that began when he was in his early twenties. He has been charged for sexual offenses on multiple occasions and has been convicted of sex crimes against multiple victims. Several charges from 2017 remained pending at the time of trial due to the defendants adjudged incompetency. The defendant suffers from schizophrenia and schizoaffective disorder and claims that he experiences auditory hallucinations that “tell [him] to do things.” He has stated that his sexual offenses are related to his auditory hallucinations.
In 2016, the defendant pled guilty to three counts of indecent assault and battery for separate episodes in 2011 and 2012 where the defendant approached and sexually assaulted female strangers in the parking garage of the building in which he resided. The defendants face was covered and the assaults were physical, involving groping and striking the victims and in one instance, rubbing his exposed penis against a victim.
In April of 2017, the defendant was charged with several offenses, including indecent assault and battery and assault with intent to rape, relating to an alleged sexual assault that took place in December of 2016. The alleged attempted rape involved a stranger victim who was attacked and thrown to the ground while walking down the street. In June of 2017, the defendant was charged with four counts of indecent assault and battery and lewdness related to the alleged assaults of multiple additional female victims in early January 2017. However, both the April 2017 and June 2017 charges remained pending at the time of the instant petition for civil commitment, as the defendant was adjudged incompetent to stand trial and committed to Bridgewater State Hospital (BSH) in June of 2017.
The defendant continued to offend sexually while committed to BSH, including separate sexual offenses against at least three female staff members; in 2019 the defendant pled guilty to two counts of indecent assault and battery and open and gross lewdness with respect to those assaults.
Following the defendants 2019 convictions, in December 2019 the Commonwealth filed the instant petition seeking the defendants commitment as a sexually dangerous person under G. L. c. 123A, § 12. The case was tried before a jury between March 28, 2022 and April 4, 2022. The Commonwealth presented three experts, two of whom were qualified examiners. The qualified examiners, Dr. Kerry Nelligan and Dr. Kaitlyn Peretti, both interviewed the defendant, extensively reviewed his case, and ultimately concluded that he was sexually dangerous. The Commonwealth also offered the testimony of Dr. Katrin Rouse-Weir, who similarly opined that the defendant was likely to reoffend sexually if released. The defendant presented two experts, Dr. Angela Johnson and Dr. Eric Brown, who testified the defendant is not likely to reoffend sexually if properly medicated for schizophrenia. On April 4, 2022, the jury found that the defendant was a sexually dangerous person. This appeal followed.
Discussion. A defendant “may be committed as a sexually dangerous person if he has [1] been convicted of a sexual offense, [2] suffers from a mental abnormality or personality disorder that renders him a menace to the health and safety of others, and [3] is likely to engage in sexual offenses if not confined” to a secure facility.
1
Commonwealth v. Fay, 467 Mass. 574, 580, cert. denied, 574 U.S. 858 (2014). See Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 268 (2014). See also G. L. c. 123A, § 1 (defining “Sexually dangerous person”). For a jury to render a verdict of sexual dangerousness, it must find beyond a reasonable doubt that the defendant “is likely to attack or otherwise inflict injury on ․ victims because of his uncontrolled or uncontrollable desires.” G. L. c. 123A, § 1. In the context of sexual dangerousness, the term “likely” means “reasonably to be expected in the context of the particular facts and circumstances at hand.” Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). The jury may “and should consider the evidence of the petitioners past sexual misconduct and ․ draw inferences based on that misconduct” to arrive at this finding. Wyatt, petitioner, 428 Mass. 347, 354 (1998). However, the jury may not rely exclusively on past misconduct in rendering a verdict that the defendant is a sexually dangerous person. See Commonwealth v. Walsh, 376 Mass. 53, 58-59 (1978).
The defendant argues that the judge erred in denying his motion for a required finding of not guilty because, he contends, his sexual offending was driven by auditory hallucinations that resulted from his schizophrenia, and because his hallucinations have ceased with his current medication regimen. The defendant thus asserts that the evidence showed he is unlikely to reoffend sexually, and that the evidence presented by the Commonwealth, including the trial testimony and reports of two qualified examiners and one additional expert, was insufficient.
We review a challenge to the sufficiency of the evidence for “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.” Commonwealth v. Husband, 82 Mass. App. Ct. 1, 4 (2012), quoting Commonwealth v. Blake, 454 Mass. 267, 271 (2009). See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We give deference “to findings resting upon expert testimony,” Husband, supra, as “qualified examiners are central to the statutory scheme designed to evaluate the likelihood of a sex offender to reoffend.” Johnstone, petitioner, 453 Mass. 544, 551 (2009), quoting Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 283-284 (2004).
Here, the Commonwealths evidence of the defendants sexual dangerousness was substantial. Collectively, Dr. Nelligan, Dr. Peretti, and Dr. Rouse-Weir opined, based on the defendants persistent history of sexually offending (including his pattern of offending while committed), his diagnoses of mental abnormalities, his insufficient participation in sex offender treatment, and other evidence, that he currently meets the statutory definition of a sexually dangerous person. Importantly, the defendant did not challenge the Commonwealths experts qualifications, nor did he seek to have the expert testimony excluded at trial on the ground that it was unreliable as a matter of law. See Commonwealth v. Shanley, 455 Mass. 752, 761-762 (2010).
The evidence that formed the basis of the experts opinions was compelling. The defendants known history of sexually offending began in 2011 with a slew of sexual and physical assaults of female stranger victims that culminated in multiple criminal convictions. Several years later in 2017, the defendant was again charged with multiple counts of assault of female victims involving much the same conduct as his earlier charges.
2
The defendant continued to engage in sexual offenses while he was committed to BSH.
The defendant argues, however, that he is no longer a risk because when he takes his medication, he does not offend. This contention was presented to the jury by the defendants experts, but the jury reached a different conclusion. And, the jurys conclusion was amply supported by the evidence. The Commonwealths experts agreed that, even assuming the defendants auditory hallucinations are effectively treated by medication, the defendants additional diagnoses, including but not limited to “other specified personality disorder with antisocial traits,” frotteuristic disorder, and exhibitionistic disorder, qualify as personality disorders under the statutory definition and raise a sufficient risk of reoffending. The defendant admitted to Dr. Peretti that he often had thoughts of inappropriately grabbing or touching women even when he was not afflicted by auditory hallucinations. Furthermore, it was far from assured that the defendant would take his medication if released. There was evidence that the defendant had sought to reduce his medication, and had resisted taking it, in the past. Indeed, in 2017, a Rogers order was issued to force the defendant to take medication after he refused to comply with his treatment. See Rogers v. Commissioner of the Dept of Mental Health, 390 Mass. 489 (1983).
Finally, the defendant has not participated in sex offender treatment. The defendant has stated that he does not believe he needs treatment because he is medicated. Dr. Peretti concluded that the defendant has “demonstrated minimal insight into the factors that contributed to his sexual offending,” and that while the defendant maintains that he will not reoffend if properly medicated, he is unable to offer any detailed plans as to how he will address triggers, should they arise, if released into the community.
Based on the above, we conclude that the opinions of the Commonwealths experts were well supported by the evidence. The defendants argument that the evidence was insufficient effectively asks us to conclude, as a matter of law, that the expert opinions were so unreliable that they had no evidentiary value. This contention is without merit on the facts, and even more so given the deference we afford to the trial judges admission of expert opinions. See Husband, 82 Mass. App. Ct. at 4.
Lastly, the defendant points to the opinions of his own experts, Dr. Johnson and Dr. Brown, that he is not likely to reoffend while compliant with his medication regimen. The trier of fact is not required to credit the defendants experts opinions. See Commonwealth v. Hinds, 487 Mass. 212, 218 (2021), citing Commonwealth v. Roberio, 428 Mass. 278, 281 (1998), S.C., 440 Mass. 245 (2003). And furthermore, under the Latimore standard, “we do not weigh the supporting evidence against conflicting evidence.” Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 351 (2015), quoting Commonwealth v. Merry, 453 Mass. 653, 660 (2009). Rather, we must “disregard contrary evidence presented by the defendant, including the testimony of a defense expert, unless the contrary evidence demonstrates that the Commonwealths evidence, ․ is conclusively incorrect.” Commonwealth v. Lawson, 475 Mass. 806, 817 (2016), quoting Commonwealth v. OLaughlin, 446 Mass. 188, 204 (2006). See Latimore, 378 Mass. at 677. The defendant made no such showing.
Judgment affirmed.
FOOTNOTES
1
. Neither the first element, conviction of a sexual offense, nor the second element, whether the defendant has a mental abnormality or personality disorder, are at issue in this appeal.
2
. As noted, the 2017 charges remained pending during the instant proceedings because of the defendants adjudged incompetence. The defendant moved to exclude any reference to those pending charges in the experts reports and testimony, but his motion was denied per our decision in Commonwealth v. Bradshaw, 94 Mass. App. Ct. 477, 481-482 (2018) (witness may testify about uncharged sexual misconduct at trial to determine sexual dangerousness).