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-934
COMMONWEALTH
vs.
KENNETH PARRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a five-day jury trial in the Superior Court, the
defendant, Kenneth Parry, was adjudged a sexually dangerous
person (SDP) pursuant to G. L. c. 123A, § 14 (d), and committed
to the Massachusetts Treatment Center for a period of from one
day to life. On appeal, the defendant challenges the
sufficiency of the evidence, claiming that the evidence failed
to establish beyond a reasonable doubt that he suffers from a
statutorily required "mental abnormality or personality
disorder" making him more likely to commit further sexual
offenses. G. L. c. 123A, § 1. We affirm.
1. Facts of the governing offenses. In 2006, Parry was
convicted of two counts of assault and battery, five counts of indecent assault and battery on a child under fourteen, and one
count of unnatural rape of a child.1 He was sentenced to a term
of incarceration of from twelve to fifteen years in prison with
a five-year term of probation to be served from and after his
term of incarceration. The victims, whom we shall refer to as
C.K. and N.K., were twelve year old boys who were friendly with
Parry's son. During the months of November and December 2003,
the victims slept over Parry's home. On the first sleepover,
C.K. was awoken to Parry "cuddling" him. During another
sleepover, C.K. awoke to Parry once again "cuddling" him and
then stroking C.K.'s penis outside of his clothing. Another
time, C.K. awoke to Parry touching C.K.'s penis and then anally
raping him. Parry also sexually assaulted N.K. during these
sleepovers, touching N.K.'s penis over his clothing, "spooning"
him, and, on two occasions, N.K. awoke to Parry "dry humping"
him.
As this court stated in Commonwealth v. Garcia, 95 Mass. 1
App. Ct. 1, 5 n.8 (2019),
"We recognize that the language appearing in [certain] statute[s] dates to an earlier time. We do not intend by our reference to the term, consistent with the statutory language, to adopt or endorse any pejorative connotation that may flow from the designation of such conduct as 'unnatural' (even when engaged in by consenting adults), and we invite the Legislature to update the statutory language" (emphasis added).
2 2. Additional sexual misconduct. In 2002, Parry was
charged with rape of a child and two counts of indecent assault
and battery on a child fourteen or over but found not guilty
after a jury trial. The complaint alleged that Parry, who was
in a dating relationship with a woman who had a son, had slept
in the same bed as the woman's son. The son reported that he
was asleep in bed and awoke to Parry attempting to anally
penetrate him, and that Parry forced him to masturbate Parry
until he ejaculated. In a separate case in 2004, Parry was
charged with four counts of rape of a child, four counts of
indecent assault and battery on a child under fourteen, and two
counts of disseminating matter harmful to a child. The charges
in that case were based on the reports of two boys, both of whom
were friendly with Parry's son. One boy reported that Parry had
orally and anally raped him, and both boys reported that Parry
committed indecent assault and battery during a sleepover or a
camping trip. This case was dismissed after a mistrial
occurred.
3. Procedural history. In December of 2018, Robert H.
Joss, Ph.D., provided an expert opinion that the defendant was a
sexually dangerous person, and the Commonwealth filed a petition
for civil commitment in the Superior Court. In February of
2021, a finding of probable cause was entered. Two qualified
examiners interviewed and evaluated the defendant and reached
3 different conclusions. Qualified examiner Dr. Kaitlyn Peretti
wrote a report opining that Parry was an SDP, and qualified
examiner Dr. Gregg A. Belle wrote a report that Parry was not an
SDP. Parry retained two licensed psychologists, Dr. Leonard A.
Bard and Dr. Laurie L. Guidry, to testify as independent
experts, both of whom opined that Parry was not sexually
dangerous.
Trial commenced on May 5, 2023.2 The Commonwealth called
one witness, qualified examiner Dr. Peretti, and introduced
seven exhibits into evidence. The defendant called qualified
examiner Dr. Belle and the two independent expert witnesses,
Drs. Bard and Guidry, along with the introduction of six
exhibits into evidence. The jury found that Parry was a
sexually dangerous person. This appeal followed, challenging
the sufficiency of the evidence.
4. Sufficiency of the evidence. In analyzing a challenge
to the sufficiency of the evidence, we consider "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),
At the time of trial, the defendant was fifty-seven years 2
of age.
4 quoting Commonwealth v. Blake, 454 Mass. 267, 271 (2009)
(Ireland, J., concurring).
Parry challenges the sufficiency of the evidence and argues
that the Commonwealth's evidence failed to prove beyond a
reasonable doubt that he is a sexually dangerous person as
defined by G. L. c. 123A, § 1. This statute defines a sexually
dangerous person as a person convicted of certain enumerated
sexual offenses and who suffers "from a mental abnormality or
personality disorder which makes the person likely to engage in
sexual offenses if not confined to a secure facility" (citation
omitted). Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 335
(2007).
Specifically, Parry claims that the evidence was
insufficient to prove that he suffers from a mental abnormality
that would result in a risk to reoffend sexually. The term
"mental abnormality" has been defined as a "congenital or
acquired condition of a person that affects the emotional or
volitional capacity of the person in a manner that predisposes
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." Starkus, 69 Mass. App. Ct. at 335, quoting
G. L. c. 123A, § 1. As to the risk of reoffense, it is for the
fact finder to determine what is "likely." Commonwealth v.
Boucher, 438 Mass. 274, 276 (2002). "Such a determination must
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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
23-P-934
COMMONWEALTH
vs.
KENNETH PARRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a five-day jury trial in the Superior Court, the
defendant, Kenneth Parry, was adjudged a sexually dangerous
person (SDP) pursuant to G. L. c. 123A, § 14 (d), and committed
to the Massachusetts Treatment Center for a period of from one
day to life. On appeal, the defendant challenges the
sufficiency of the evidence, claiming that the evidence failed
to establish beyond a reasonable doubt that he suffers from a
statutorily required "mental abnormality or personality
disorder" making him more likely to commit further sexual
offenses. G. L. c. 123A, § 1. We affirm.
1. Facts of the governing offenses. In 2006, Parry was
convicted of two counts of assault and battery, five counts of indecent assault and battery on a child under fourteen, and one
count of unnatural rape of a child.1 He was sentenced to a term
of incarceration of from twelve to fifteen years in prison with
a five-year term of probation to be served from and after his
term of incarceration. The victims, whom we shall refer to as
C.K. and N.K., were twelve year old boys who were friendly with
Parry's son. During the months of November and December 2003,
the victims slept over Parry's home. On the first sleepover,
C.K. was awoken to Parry "cuddling" him. During another
sleepover, C.K. awoke to Parry once again "cuddling" him and
then stroking C.K.'s penis outside of his clothing. Another
time, C.K. awoke to Parry touching C.K.'s penis and then anally
raping him. Parry also sexually assaulted N.K. during these
sleepovers, touching N.K.'s penis over his clothing, "spooning"
him, and, on two occasions, N.K. awoke to Parry "dry humping"
him.
As this court stated in Commonwealth v. Garcia, 95 Mass. 1
App. Ct. 1, 5 n.8 (2019),
"We recognize that the language appearing in [certain] statute[s] dates to an earlier time. We do not intend by our reference to the term, consistent with the statutory language, to adopt or endorse any pejorative connotation that may flow from the designation of such conduct as 'unnatural' (even when engaged in by consenting adults), and we invite the Legislature to update the statutory language" (emphasis added).
2 2. Additional sexual misconduct. In 2002, Parry was
charged with rape of a child and two counts of indecent assault
and battery on a child fourteen or over but found not guilty
after a jury trial. The complaint alleged that Parry, who was
in a dating relationship with a woman who had a son, had slept
in the same bed as the woman's son. The son reported that he
was asleep in bed and awoke to Parry attempting to anally
penetrate him, and that Parry forced him to masturbate Parry
until he ejaculated. In a separate case in 2004, Parry was
charged with four counts of rape of a child, four counts of
indecent assault and battery on a child under fourteen, and two
counts of disseminating matter harmful to a child. The charges
in that case were based on the reports of two boys, both of whom
were friendly with Parry's son. One boy reported that Parry had
orally and anally raped him, and both boys reported that Parry
committed indecent assault and battery during a sleepover or a
camping trip. This case was dismissed after a mistrial
occurred.
3. Procedural history. In December of 2018, Robert H.
Joss, Ph.D., provided an expert opinion that the defendant was a
sexually dangerous person, and the Commonwealth filed a petition
for civil commitment in the Superior Court. In February of
2021, a finding of probable cause was entered. Two qualified
examiners interviewed and evaluated the defendant and reached
3 different conclusions. Qualified examiner Dr. Kaitlyn Peretti
wrote a report opining that Parry was an SDP, and qualified
examiner Dr. Gregg A. Belle wrote a report that Parry was not an
SDP. Parry retained two licensed psychologists, Dr. Leonard A.
Bard and Dr. Laurie L. Guidry, to testify as independent
experts, both of whom opined that Parry was not sexually
dangerous.
Trial commenced on May 5, 2023.2 The Commonwealth called
one witness, qualified examiner Dr. Peretti, and introduced
seven exhibits into evidence. The defendant called qualified
examiner Dr. Belle and the two independent expert witnesses,
Drs. Bard and Guidry, along with the introduction of six
exhibits into evidence. The jury found that Parry was a
sexually dangerous person. This appeal followed, challenging
the sufficiency of the evidence.
4. Sufficiency of the evidence. In analyzing a challenge
to the sufficiency of the evidence, we consider "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),
At the time of trial, the defendant was fifty-seven years 2
of age.
4 quoting Commonwealth v. Blake, 454 Mass. 267, 271 (2009)
(Ireland, J., concurring).
Parry challenges the sufficiency of the evidence and argues
that the Commonwealth's evidence failed to prove beyond a
reasonable doubt that he is a sexually dangerous person as
defined by G. L. c. 123A, § 1. This statute defines a sexually
dangerous person as a person convicted of certain enumerated
sexual offenses and who suffers "from a mental abnormality or
personality disorder which makes the person likely to engage in
sexual offenses if not confined to a secure facility" (citation
omitted). Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 335
(2007).
Specifically, Parry claims that the evidence was
insufficient to prove that he suffers from a mental abnormality
that would result in a risk to reoffend sexually. The term
"mental abnormality" has been defined as a "congenital or
acquired condition of a person that affects the emotional or
volitional capacity of the person in a manner that predisposes
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." Starkus, 69 Mass. App. Ct. at 335, quoting
G. L. c. 123A, § 1. As to the risk of reoffense, it is for the
fact finder to determine what is "likely." Commonwealth v.
Boucher, 438 Mass. 274, 276 (2002). "Such a determination must
5 be made on a case-by-case basis, by analyzing a number of
factors, including the seriousness of the threatened harm, the
relative certainty of the anticipated harm, and the possibility
of successful intervention to prevent that harm." Id. "While
'likely' indicates more than a mere propensity or possibility,
it is not bound to the statistical probability inherent in a
definition such as 'more likely than not.'" Id. at 277.
Here, the Commonwealth presented evidence from Dr. Peretti,
a qualified examiner, who opined that Parry suffered from the
mental abnormality of pedophilic disorder under the Diagnostic
and Statistical Manual of Mental Disorders (DSM-V). In her
opinion, due to that mental abnormality, Parry was likely to
sexually reoffend if he was not confined to a secure facility.
On the other hand, the defendant presented evidence from three
experts. Dr. Belle opined that Parry's governing offense and
history supports a determination that his behavior was driven by
pedophilic disorder, but that he did not meet the criteria for a
finding of mental abnormality. Specifically, in 2021, Dr. Belle
opined that Parry did meet the definition of a mental
abnormality "best described as Pedophilic Disorder, Sexually
Attracted to Males, Nonexclusive Type." In 2023, however, Dr.
Belle amended his opinion and opined that even though "Mr.
Parry's underlying Pedophilic Disorder drove his sexual
offending behaviors, it is no longer [Dr. Belle's] opinion that
6 [Parry's] paraphilic condition represents a statutorily defined
mental abnormality." Drs. Guidry and Bard opined that Parry did
not meet the criteria for having a mental abnormality, and all
of Parry's experts agreed that he was not likely to engage in a
sexual offense if not confined to a secure facility.3
We agree with the Commonwealth that Parry's claim "is an
attack upon the weight, not the sufficiency, of the evidence."
Husband, 82 Mass. App. Ct. at 6. The fact finder must decide
how much weight to give the evidence. "The choice between the
credibility of two sets of experts belonged to [the jury] as the
trier[s] of fact and as . . . firsthand observer[s] of the
testimony and demeanor of the witnesses under direct and cross-
examination." Id. We further note that the Commonwealth
carried its burden of proof of the element of "mental
abnormality." The jury considered the written report and
testimony of Dr. Peretti, who opined that Parry met the criteria
for a pedophilic disorder, nonexclusive type, sexually attracted
to males, under the DSM-V definition.4 Dr. Peretti's opinion was
3 Dr. Belle opined that Parry was properly diagnosed with pedophilic disorder but that Parry's disorder does not meet the statutory definition of a mental abnormality and would not cause him to create future harm to children. Dr. Bard opined that Parry does not suffer from a mental abnormality. Dr. Guidry opined that Parry does not suffer from a mental abnormality or personality disorder.
4 According to Dr. Peretti, the DSM-V diagnostic criteria for pedophilic disorder are that (A) over a period of at least
7 based on the fact Parry had offended against two prepubescent
boys on three occasions, reported being sexually attracted to
his victims, and that his sexual attraction to the victims
contributed to his crimes. Dr. Peretti also considered the
possibility that Parry was sexually preoccupied with
prepubescent boys, committed the sexual offenses against these
prepubescent boys despite having an age-appropriate sexual
partner, and committed the offenses while his son and wife were
present in the home. Further, Dr. Peretti did not credit
Parry's statement that he was no longer interested in sex and
did not have any sexual thoughts due to a medical condition,
especially given the fact that Parry's single observational
report was the result of engaging in consensual oral sex with a
peer at the Massachusetts Treatment Center. The evidence was
therefore sufficient to establish that Parry suffers from a
mental abnormality.
The defendant next contends that even if the Commonwealth
established that he suffered from a mental abnormality, it
failed to present sufficient evidence to establish his
six months, the individual has recurrent intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age thirteen or younger); (B) the individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty; and (C) the individual is at least sixteen years old and at least five years older than the child or children in criterion A.
8 likelihood of risk to reoffend. Again, the Commonwealth
presented sufficient evidence to establish that Parry was likely
to reoffend sexually if not confined to a secure facility.
Dr. Peretti's opinion that Parry continued to be a risk to
reoffend sexually was based in part on her interpretation of
both static and dynamic risk factors5 as well as Parry's score on
the Static-99R, a tool that specifically measures a sex
offender's risk to reoffend. In fact, at trial, all of the
experts scored Parry as a "four" on a risk scale from negative
three to twelve under the Static-99R. The experts disagreed,
however, as to what this score meant as far as Parry's risk to
reoffend. According to Dr. Peretti, Parry's risk to reoffend
sexually was "Above Average." Additionally, while Dr. Peretti
acknowledged that Parry had attended and made progress in sex
offender treatment, in her opinion his risk was not sufficiently
reduced because intensive sex offender therapy had just begun.
The fact that Parry had not spent a considerable amount of time
in intensive sex offender counselling was important to Dr.
Peretti's risk analysis. She opined that because Parry had yet
5 The static factors Dr. Peretti relied on were Parry's age, past history, and the nature of his sexual offenses. Some of the dynamic factors that Dr. Peretti considered were Parry's interest in prepubescent boys, his failure to create interventions to address this deviancy, his failure to understand how to manage his risk of reoffense in the community, intimacy deficits, poor problem solving skills, a lack of positive social influences, and poor release planning.
9 to address the motivating reasons for his sexually deviant
behavior, he presented as a risk to reoffend. Dr. Peretti
opined that Parry was likely to reoffend sexually if he was not
confined to a secure institution. She considered "the amount of
historic risk that's present, the amount of dynamic risk
factors, and that although he has probation and that's
protective, it doesn't sufficiently outweigh the amount of risk
that he presents with." Dr. Peretti further explained that when
she considered risk, she also considered the Static-99R score,
the fact that Parry has not completed sex offender treatment,
that he was unable to demonstrate an understanding of the
factors that contributed to his offending and, importantly,
Parry was unable to demonstrate an understanding of what his
current risks are or how he would manage those risks in the
community. The Commonwealth has met its burden with respect to
risk to reoffend.
In conclusion, the defendant's claim on appeal boils down
to a disagreement with the weight of the evidence rather than
the sufficiency. While the jury were free to reject the opinion
of Dr. Peretti and accept the opinions of Drs. Bard, Belle, and
Guidry, it was equally permissible for the jury to credit the
opinion of Dr. Peretti. "Experts' conclusions are not binding
on the trier of fact, who may decline to adopt them in whole or
in part. As a corollary, where testimony from various experts
10 is conflicting, it is for the trier of fact to determine which
expert's testimony to accept, if any." Husband, 82 Mass. App.
Ct. at 10, quoting Brodin & Avery, Massachusetts Evidence
§ 7.4.3 (8th ed. 2007).
Judgment affirmed.
By the Court (Rubin, Henry & Walsh, JJ.6),
Clerk
Entered: March 18, 2025.
6 The panelists are listed in order of seniority.