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Commonwealth v. Deluck

Appeals Court of Massachusetts.
Jun 27, 2012
82 Mass. App. Ct. 1104 (Mass. App. Ct. 2012)

Opinion

No. 10–P–2252.

2012-06-27

COMMONWEALTH v. Anthony DELUCK.


By the Court (KATZMANN, SIKORA & AGNES, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial, a judge found the defendant to be a sexually dangerous person (SDP) as defined by G.L. c. 123A, § 1. The defendant appealed. This appeal was stayed to allow the defendant to pursue a motion in Superior Court to set aside the judgment in light of the decision in Commonwealth v. Suave, 460 Mass. 582, 586–589 (2011) ( Suave ). The Superior Court denied the defendant's motion and the defendant appealed from that denial. The Appeals Court vacated the stay and consolidated the appeal from the denial of the defendant's motion with the defendant's direct appeal. At the request of both parties at oral argument, this case was remanded for further findings and conclusions of law by the Superior Court judge in light of Suave. We retained jurisdiction and now affirm. Discussion. On appeal, this court must determine “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. Boyer, 61 Mass.App.Ct. 582, 589 (2004). “Weighing and crediting the testimony of witnesses during proceedings under G.L. c. 123A ‘are for the trier of fact, and we will not substitute our judgment for that of the trier of fact.’ “ Commonwealth v. Blake, 454 Mass. 267, 272 (2009), quoting from Commonwealth v. Sargent, 449 Mass. 576, 583 (2007).

“In order to find the defendant is a ‘sexually dangerous person,’ the Commonwealth must prove three things: (1) the defendant has been convicted of a ‘[s]exual offense,’ ...; (2) he suffers from a ‘[m]ental abnormality’ or ‘[p]ersonality disorder,’ ...; and (3) as a result of such mental abnormality or personality disorder, the defendant is ‘likely to engage in sexual offenses if not confined to a secure facility.’ “ Suave, 460 Mass. at 584 n .3, quoting from G.L. c. 123A, § 1, definition of “[s]exually dangerous person,” as appearing in St.1999, c. 74, § 6.

Here, the defendant was convicted of numerous sexual offenses, including assault with intent to rape, indecent assault and battery, open and gross lewdness, and indecent exposure. Thus, the Commonwealth met its burden of proof with regard to the first element of sexual dangerousness (see note 1, supra ).

Next, we consider whether the defendant suffers from a “mental abnormality.”

“That term contains both medical and legal aspects.” Suave, 460 Mass. at 587. With regard to the medical aspects, the Superior Court judge credited the opinions of three experts that the defendant meets the criteria for exhibitionism. The defendant does not dispute this.

Pursuant to G.L. c. 123A, § 1, definition of “mental abnormality,” inserted by St.1999, c. 74, § 4, a “mental abnormality” is 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.”

With regard to the legal aspects, the Commonwealth must show that “the defendant's disorder makes him ‘a menace

to the health and safety of other persons'....” Ibid. To establish menace, “the Commonwealth must show the defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime.” Id. at 588. We agree with the Superior Court judge's determination that the defendant here has a history of committing contact sexual offenses that create a reasonable apprehension in the victims of being subjected to a contact sex crime.

“Menace” “connotes a person whose conduct will objectively put his victim in fear of bodily harm by reason of a battery and, specifically, a contact sex crime.” Suave, 460 Mass. at 588.

Contrast Suave, 460 Mass. at 584 (Superior Court judge found that defendant “has no convictions for crimes of violence, and all of his sex offenses can be characterized as ‘hands-off,’ nonviolent, noncontact offenses. None of his sex offenses ... involved stalking, luring, approaching, confining, or touching a victim”). Moreover, there was sufficient evidence for the judge to conclude that the defendant's “predicted sexual offenses,” id. at 588, include contact offenses.

The defendant was convicted of two counts of assault with intent to rape based on two separate incidents in which the defendant approached unknown fifteen year old girls, pretended to have a gun, and forced them into wooded areas before assaulting them. The defendant was also convicted of indecent assault and battery arising from an incident in which he lured two girls into his car, gave them alcohol, kissed one girl and fondled her breasts, and struck the other girl in the face when both girls yelled at him and pushed him away.

Based on the past history of contact sexual offenses and the testimony of qualified experts regarding future contact sexual offenses, the Commonwealth has established that the defendant is “a menace to the health and safety of other persons.” G.L. c. 123A, § 1. Suave, 460 Mass. at 587. As the judge determined, “the [defendant in this case], unlike the defendant in Suave, has ‘stalked, lured, approached, confined [and] touched’ his victims.”

At trial, qualified examiner Schaefer testified that the defendant is “at a certain level of risk to commit another assaultive crime” and that “there also is some chance that he would commit a violent sexual offense.” Qualified examiner Hazelett testified that the defendant is “at risk ... to commit either another incident of exhibitionism or a violent sexual assault .”

Finally, we consider whether the Commonwealth established that as a result of the defendant's exhibitionism, he is “likely to engage in sexual offenses if not confined to a secure facility.” G.L. c. 123A, § 1. See note 1, supra. With regard to this element, the judge credited the opinions of qualified examiners Schaefer and Hazelett that the defendant “exhibits sufficient risk factors that are associated with a higher risk of recidivism.”

The judge also noted that the defendant had not completed intensive sex offender treatment, that he still minimizes the seriousness of his criminal offenses, and that he does not have a full appreciation of what precipitated his sexual misconduct. According to the expert testimony at trial, these factors increase his likelihood of reoffending. The judge also credited the opinion of qualified experts Schaefer and Hazelett that “the aforementioned risk factors show[ ] that Deluck is likely to reoffend again against unsuspecting, un-consenting teenage girls if not confined....” “We are not persuaded that ... the judge improperly credited testimony of the Commonwealth's expert or otherwise committed an error of law, nor are we persuaded that the judgment was unsupported by the clear weight of the evidence.” See Commonwealth v. Dinguis, 74 Mass.App.Ct. 901, 903 (2009).

The judge reported that these factors include “(1) multiple past sexual charges and multiple past sentencing dates; (2) commission of sexual offenses after being convicted of sexual offenses, commission of sexual offenses while on release after being charged with sexual offenses, and commission of sexual offenses while on probation; (3) unrelated, stranger victims; (4) the crimes occurred in public places; (5) conviction for non-contact sexual offenses; (6) conviction for a violent non-sexual offense (assault and battery); and (7) inability to form and maintain a stable, long-term relationship.”

Judgment and order of commitment affirmed.

Order denying motion to set aside judgment and order affirmed.


Summaries of

Commonwealth v. Deluck

Appeals Court of Massachusetts.
Jun 27, 2012
82 Mass. App. Ct. 1104 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Deluck

Case Details

Full title:COMMONWEALTH v. Anthony DELUCK.

Court:Appeals Court of Massachusetts.

Date published: Jun 27, 2012

Citations

82 Mass. App. Ct. 1104 (Mass. App. Ct. 2012)
969 N.E.2d 749