Opinion
No. 11–P–1980.
2012-10-2
COMMONWEALTH v. William MERRY.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, William Merry, appeals from a judgment and order of civil commitment as a sexually dangerous person entered in the Superior Court after a jury-waived trial. On appeal, he contends that reversal is required because of insufficient proof of the statutory elements. We affirm.
Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Boyer, 61 Mass.App.Ct. 582, 582–583 (2004), the evidence sufficed to establish beyond a reasonable doubt
that the defendant (1) was previously convicted of various violent “sexual offense(s)” as defined in G.L. c. 123A, § 1; (2) suffers from a mental abnormality
To warrant the defendant's commitment for treatment pursuant to G.L. c. 123A, § 1, the Commonwealth had the burden of proving beyond a reasonable doubt that the defendant was a sexually dangerous person. Commonwealth v. Knapp, 441 Mass. 157, 160 n. 7 (2004) citing G.L. c. 123A, § 14( d ).
(pedophilia) that renders him a menace to the health and safety of other persons, particularly children; and (3) as a result of such mental abnormality is likely to engage in sexual offenses if not confined to a secure facility. See Commonwealth v. Suave, 460 Mass. 582, 584 n. 3 (2011). The Commonwealth's qualified examiners, Drs. Robert Joss and Margery Gans opined that the defendant is a pedophile and has a mental abnormality that predisposes him to reoffend if not confined. See ibid. We reject the defendant's contention that the judge did not find that the defendant suffers from pedophilia. The judge found, specifically, that “[t]o the extent it is necessary to resolve whether Merry may be diagnosed with pedophilia, the court credits the opinions of the Commonwealth's experts.”
.Mass. Gen. L. c. 123A, § 1, defines a mental abnormality 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.”
Dr. Gans explained that the defendant's sexual interest in prepubescent children is a mental abnormality that predisposes him toward the commission of criminal sexual acts and that the defendant is unable to control his sexual behavior.
The weight and credibility of the evidence was a matter solely for the fact finder at trial. Commonwealth v. Bradway, 62 Mass.App.Ct. 280, 291 (2004).
Similarly unavailing is the claim that the evidence was insufficient to establish that the defendant's pedophilia rendered him likely to reoffend unless confined to a secure facility. Drs. Joss and Gans opined that the defendant was likely to reoffend unless confined based upon a number of static and dynamic factors including the defendant's sexual reoffense while previously under supervision; his apparent failure to engage in sex offender treatment while he was incarcerated; his choice of prepubescent female nonfamily victims; his recurring actions over a long period of time (between 1992 and 2007); and his Static–99 scores which placed him at a high risk to reoffend.
There is no merit to the defendant's contention, supported by his qualified expert Dr. Michael Murphy, that the defendant merely suffers from a social and emotional processing disorder that could be described as an autism spectrum disorder of the Asperger's type, causing him to be prone to make social mis-judgments. This disorder, he argues, does not cause him to be predisposed to sexual reoffending, but, rather, renders him extremely socially impaired and immature in a social and developmental sense, causing him to seek out social contact with children.
Even were we to assume that the defendant suffers from Asperger's Syndrome, rather than pedophilia, the defendant would still meet the statutory criteria for sexual dangerousness. The judge concluded that “Asperger's Syndrome—which although not necessarily ‘compulsive’ or ‘obsessive,’ nevertheless is a ‘mental condition that [, at least as it manifests itself in this defendant] renders him likely to continue to commit sexual offenses in the future.” Dutil, petitioner, 437 Mass. 9, 15 (2002).
Judgment affirmed.