Opinion
14-P-254
06-12-2015
COMMONWEALTH v. M.T.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, M.T., appeals from a determination by a judge of the Superior Court that he is to be committed as a sexually dangerous person. Relying on Commonwealth v. Suave, 460 Mass. 582 (2011), he asserts error in the judge's reliance on noncontact offenses to support a finding of dangerousness.
Background. We recite pertinent facts, essentially undisputed, found by the judge. The defendant's criminal record, initiated when he was adjudged a youthful offender at age fifteen, spans thirty years and comprises sexual and nonsexual offenses. At issue in this appeal are seven convictions for open and gross lewdness committed between December of 2002 and September of 2003 and an eighth conviction for open and gross lewdness committed in June of 2008. The victims ranged in age from nine to seventeen. In each of these cases the defendant approached a young female, exposed himself, and masturbated. On one occasion he threatened the victim, saying "I know where you live."
His record includes convictions for robbery, attempted burglary, attempted rape, and eight counts of open and gross lewdness.
Discussion. A sexually dangerous person is someone who has been convicted of a sexual offense and who suffers from a mental abnormality or personality disorder that creates a likelihood of re-offense unless confined to a secure facility. G. L. c. 123A, § 1. The definition of "mental abnormality," in turn, includes the requirement that it will predispose "that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." Id. It is undisputed that the defendant has been convicted of numerous sexual offenses as defined in the statute.
The Commonwealth and the defendant each presented two qualified experts; the judge adopted as findings the opinions of the defendant's experts that he suffers from exhibitionism and did not find, as argued by the Commonwealth, that he suffered from pedophilia. The judge concluded that the defendant's exhibitionism met the threshold definition of mental abnormality, and found further from the record that he would commit noncontact sexual offenses in the future, citing his continued history of offenses "[d]espite convictions, jail sentences, probationary supervision and sex offender treatment." This finding is not challenged by the defendant as clearly erroneous.
At issue is the final element of the definition of mental abnormality -- the presence of "a menace to the health and safety of others." The defendant relies on Commonwealth v. Suave, supra, and asserts that noncontact offenses, specifically exhibitionism, cannot support a finding that he is a menace as required by G. L. c. 123A. Especially pertinent here is that the defendant has targeted children. In Suave, where the Supreme Judicial Court acknowledged that it could "easily envision a case in which the outcome might be different," none of the offenses involved children. Suave, supra at 589. The judge emphasized this distinction. Specifically, after reciting the requirement of a finding that future victims be subjected to a reasonable apprehension of a contact sex crime, the judge referred to the "luring and targeting" of children as well as the fact that Tiru had been convicted of attempted rape. On that basis he determined that there was reason to believe the future sexual offenses could escalate into contact offenses, that "Tiru is likely to engage in a defined 'sexual offense,'" and that Tiru was a menace to health and safety.
A finding that a defendant's "conduct will objectively put his victim in fear of bodily harm by reason of a battery and, specifically, a contact sex crime," suffices to support a finding that the defendant is a "menace." Suave, supra at 588.
The judge did not have the benefit of two cases decided by the Supreme Judicial Court while this case was pending on appeal; they provide relevant new teaching about the meaning of "menace."
The first clarifies that, for the threat of future offenses standing alone to support such a determination, there must be a finding that the commission of a contact offense is "likely." In Commonwealth v. Walker, 467 Mass. 1017 (2014), the judge found that noncontact offenses were "likely," and that there was a "significant possibility" of a contact offense. The court explained, however, that:
"The juxtaposition of 'likely,' referring to future noncontact offenses, and 'significant possibility,' referring to future contact offenses, suggests that the judge might have meant something less than 'likely' in regard to the contact offenses. If the judge, in fact, did find that future contact offenses are less than likely, the possibility of future contact offenses may not be considered in determining whether the defendant is a 'menace.' If, however, the judge found that the defendant is likely to commit contact offenses, this likelihood alone is sufficient to support a conclusion that the defendant is a 'menace,' regardless of the judge's findings regarding the noncontact offenses."Id. at 1018. The court also construed Suave to have held that "a finding that a defendant is likely to commit noncontact sexual offenses [can] support a determination that the defendant is a 'menace' only where the Commonwealth has shown that 'the defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.'" (Emphasis added.) Id. at 1017, quoting from Suave, supra at 588. The court remanded for further findings about the probability of further contact offenses, and about reasonable apprehension if the judge deemed it necessary (either because contact offenses were not likely, or because, though likely, he did not find that likelihood sufficient to warrant a determination that the defendant was a menace under the standard set out in Suave).
In the second case, Commonwealth v. Fay, 467 Mass. 574 (2014), the court clarified that in evaluating whether a defendant is a menace in this context, "[w]here . . . the prospective victims are children, the judge should consider whether a child, and not an adult person, reasonably would be placed in fear of contact sexual offense by the defendant's actions." Id. at 582.
In this case, we are uncertain whether the finding that there is "reason to believe the future sexual offenses could escalate into contact offenses," like the finding of a "significant possibility" in Walker, was meant to connote something less than a "likelihood." As in Walker, therefore, we must vacate the judgment and order a remand for a further finding on this point. In so doing, we do not imply any opinion of the proper resolution. However, in determining whether the defendant is a "menace," it is now necessary to apply the new standard announced in Fay, i.e., whether the defendant's conduct in future offenses would cause a child reasonably to fear that he or she was likely to be the victim of a contact sexual offense.
So ordered.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 12, 2015.