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
22-P-1095
COMMONWEALTH
vs.
JAMES COTY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a judgment of the Superior Court
that adjudged him to be a sexually dangerous person (SDP)
pursuant to G. L. c. 123A, § 14. The defendant argues that the
Commonwealth failed to present sufficient evidence to support
such a finding -- that is, that the evidence was insufficient to
show that at the time of trial the defendant "suffer[ed] from a
mental abnormality or personality disorder which [made him]
likely to engage in sexual offenses if not confined to a secured
facility." G. L. c. 123A, § 1. After reviewing the record, we
are satisfied that the evidence, including several expert
reports and lengthy expert trial testimony, was well grounded in
fact and more than sufficient to support the jury's finding.
Accordingly, we affirm. Background. We briefly summarize the relevant history and
reserve our detailed analysis of the evidence to the discussion
section. The defendant's history of sexual offenses began in
1968, continued for decades, and culminated in the instant
petition to civilly commit him as a sexually dangerous person.
In 1993 and again in 1995, the defendant solicited sex from
strangers in the Williams College library. In 1996, he was
convicted of sexually abusing two young children in his family
over an extended period (with one, beginning at age seven), and
sentenced to seven to ten years in prison. The defendant began
reoffending almost immediately after his release in 2006 1 and,
following a February 2010 conviction for rape of a child, was
returned to prison until 2020.
In January 2020, the Commonwealth filed its second petition
seeking the defendant's commitment as a sexually dangerous
person under G. L. c. 123A, § 12. The Commonwealth engaged two
qualified examiners, Dr. Kaitlyn Peretti and Dr. Angela Johnson,
both of whom interviewed the defendant and concluded in their
respective reports that the defendant was sexually dangerous.
The defendant engaged his own qualified expert, Dr. Daniel
Kriegman, who concluded that the evidence was insufficient to
1 We note that the Commonwealth filed its first SDP petition before the defendant was released in 2006. After a bench trial, the defendant was found not sexually dangerous.
2 support a finding of current sexual dangerousness. After a
three-day jury trial in October 2021, the jury found that the
defendant was currently 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. 2 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); G. L. c. 123A, § 1
(definition of "Sexually dangerous person"). For a jury to
render a verdict of sexual dangerousness, they 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 [defendant]'s past sexual misconduct and . . .
2 The first element, conviction of a sexual offense, is not at issue in this appeal.
3 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 (1978).
The defendant argues that the evidence presented by the
Commonwealth was insufficient to support the ultimate finding of
sexual dangerousness, particularly in that he was sixty-seven
years old at the time of trial "and his recent behavior has
markedly improved." The defendant's argument directly
challenges the opinions of the Commonwealth's qualified experts
as unreliable; he contends that they "placed undue influence
upon [his] criminal sex history and behavior while
incarcerated," and that the opinions were "so incredible,
insubstantial, or otherwise of such a quality that no reasonable
person could rely upon [them]."
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.
4 671, 677 (1979). We grant particular deference "to findings
resting upon expert testimony." Husband, supra at 4. Indeed,
under Massachusetts law, "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 Commonwealth offered extensive evidence of the
defendant's current sexual dangerousness, centered around the
opinions of the two qualified examiners. Both of those experts
opined, based on the defendant's criminal history, his patterns
of behavioral infractions while incarcerated, his mental
diagnoses, his insufficient engagement in treatment, and other
evidence, that the defendant currently meets the statutory
definition of a sexually dangerous person. Notably, there was
no challenge to the qualifications of either expert at trial.
Nor did the defendant raise an objection to the expert testimony
seeking to have it excluded on reliability grounds. See
Commonwealth v. Shanley, 455 Mass. 752, 761-762 (2010).
The evidence the experts cited in support of their opinions
was compelling. The defendant's criminal history, beginning in
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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
22-P-1095
COMMONWEALTH
vs.
JAMES COTY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a judgment of the Superior Court
that adjudged him to be a sexually dangerous person (SDP)
pursuant to G. L. c. 123A, § 14. The defendant argues that the
Commonwealth failed to present sufficient evidence to support
such a finding -- that is, that the evidence was insufficient to
show that at the time of trial the defendant "suffer[ed] from a
mental abnormality or personality disorder which [made him]
likely to engage in sexual offenses if not confined to a secured
facility." G. L. c. 123A, § 1. After reviewing the record, we
are satisfied that the evidence, including several expert
reports and lengthy expert trial testimony, was well grounded in
fact and more than sufficient to support the jury's finding.
Accordingly, we affirm. Background. We briefly summarize the relevant history and
reserve our detailed analysis of the evidence to the discussion
section. The defendant's history of sexual offenses began in
1968, continued for decades, and culminated in the instant
petition to civilly commit him as a sexually dangerous person.
In 1993 and again in 1995, the defendant solicited sex from
strangers in the Williams College library. In 1996, he was
convicted of sexually abusing two young children in his family
over an extended period (with one, beginning at age seven), and
sentenced to seven to ten years in prison. The defendant began
reoffending almost immediately after his release in 2006 1 and,
following a February 2010 conviction for rape of a child, was
returned to prison until 2020.
In January 2020, the Commonwealth filed its second petition
seeking the defendant's commitment as a sexually dangerous
person under G. L. c. 123A, § 12. The Commonwealth engaged two
qualified examiners, Dr. Kaitlyn Peretti and Dr. Angela Johnson,
both of whom interviewed the defendant and concluded in their
respective reports that the defendant was sexually dangerous.
The defendant engaged his own qualified expert, Dr. Daniel
Kriegman, who concluded that the evidence was insufficient to
1 We note that the Commonwealth filed its first SDP petition before the defendant was released in 2006. After a bench trial, the defendant was found not sexually dangerous.
2 support a finding of current sexual dangerousness. After a
three-day jury trial in October 2021, the jury found that the
defendant was currently 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. 2 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); G. L. c. 123A, § 1
(definition of "Sexually dangerous person"). For a jury to
render a verdict of sexual dangerousness, they 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 [defendant]'s past sexual misconduct and . . .
2 The first element, conviction of a sexual offense, is not at issue in this appeal.
3 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 (1978).
The defendant argues that the evidence presented by the
Commonwealth was insufficient to support the ultimate finding of
sexual dangerousness, particularly in that he was sixty-seven
years old at the time of trial "and his recent behavior has
markedly improved." The defendant's argument directly
challenges the opinions of the Commonwealth's qualified experts
as unreliable; he contends that they "placed undue influence
upon [his] criminal sex history and behavior while
incarcerated," and that the opinions were "so incredible,
insubstantial, or otherwise of such a quality that no reasonable
person could rely upon [them]."
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.
4 671, 677 (1979). We grant particular deference "to findings
resting upon expert testimony." Husband, supra at 4. Indeed,
under Massachusetts law, "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 Commonwealth offered extensive evidence of the
defendant's current sexual dangerousness, centered around the
opinions of the two qualified examiners. Both of those experts
opined, based on the defendant's criminal history, his patterns
of behavioral infractions while incarcerated, his mental
diagnoses, his insufficient engagement in treatment, and other
evidence, that the defendant currently meets the statutory
definition of a sexually dangerous person. Notably, there was
no challenge to the qualifications of either expert at trial.
Nor did the defendant raise an objection to the expert testimony
seeking to have it excluded on reliability grounds. See
Commonwealth v. Shanley, 455 Mass. 752, 761-762 (2010).
The evidence the experts cited in support of their opinions
was compelling. The defendant's criminal history, beginning in
1968, includes multiple convictions for indecent exposure,
dissemination of obscene material, enticing a child, and
multiple counts of rape of a child. As referenced above, he was
5 incarcerated for ten years between 1996 and 2006 after pleading
guilty to thirteen charges surrounding the sexual abuse and rape
of children he lived with. He was convicted of enticing a child
for an incident that occurred immediately following his release
from prison in 2006 and sentenced to a term of fifteen months in
the house of correction (HOC). In 2010, he was again convicted
of the rape of a child, an offense that led to his most recent
incarceration from 2010 to 2020 and the governing offense in his
2021 SDP trial.
The defendant continued to offend sexually while
incarcerated and in pretrial confinement in the HOC, with
disciplinary reports detailing concerning behavior including the
defendant exposing himself to his cellmates, soliciting sexual
acts from other inmates, openly masturbating and masturbating
while watching other inmates in the shower, and entering a
shower stall while attempting to engage sexually with another
inmate.
Both of the Commonwealth's qualified experts agreed that
the defendant's diagnoses met the statutory definition of a
mental abnormality or personality disorder. They opined that
the defendant suffers from exhibitionistic disorder, voyeuristic
disorder, antisocial personality disorder, and a general lack of
power to control his sexual impulses as evidenced by his
6 compulsive engagement in sexual offenses and infractions,
including while incarcerated and in temporary confinement.
The defendant also has a history of ambivalence to
treatment. He first participated in the Sex Offender Treatment
Program (SOTP) during his incarceration from 1996 to 2006 but
was terminated from treatment due to continued sexual
misconduct. During his incarceration from 2010 to 2020, the
defendant again enrolled in treatment, but was terminated after
additional episodes of sexual misconduct.
In short, there was extensive evidence supporting the
opinions of the Commonwealth's qualified experts. The
defendant's argument in response asks us to conclude, as a
matter of law, that these opinions were so unreliable that they
had no value as evidence and should have been excluded from
consideration. That is a tall order, to be sure, as we would
give deference to the trial judge's admission of the opinions
even if the question were a close one. But for the reasons
stated above, the expert opinions were well grounded. And while
the defendant highlights the opinion of his own qualified
examiner, Dr. Kriegman, that the defendant does not currently
meet the criteria for sexual dangerousness, under the Latimore
standard "we do not weigh the supporting evidence against
conflicting evidence." Commonwealth v. Rarick, 87 Mass. App.
7 Ct. 349, 351 (2015), quoting Commonwealth v. Merry, 453 Mass.
653, 660 (2009).
Indeed, when reviewing for sufficiency of the evidence we
must "disregard contrary evidence presented by the defendant
including the testimony of a defense expert, unless the contrary
evidence demonstrates that the Commonwealth's evidence . . . is
'conclusively incorrect.'" Commonwealth v. Lawson, 475 Mass.
806, 817 (2016), quoting Commonwealth v. O'Laughlin, 446 Mass.
188, 204 (2006). See Latimore, 378 Mass. at 677. No such
showing was made here.
Judgment affirmed.
By the Court (Wolohojian, 3 Englander & Brennan, JJ. 4),
Assistant Clerk
Entered: April 24, 2024.
3 Justice Wolohojian participated in the deliberation on this case while an Associate Justice of this court, prior to her appointment as an Associate Justice of the Supreme Judicial Court.
4 The panelists are listed in order of seniority.