Opinion
11-P-64
03-12-2012
COMMONWEALTH v. THOMAS L. REID.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, a judge of the Superior Court concluded that the defendant is a sexually dangerous person, and ordered him committed to the Massachusetts Treatment Center (Treatment Center). See G. L. c. 123A, §§ 1, 12-14. On appeal, the defendant contends that the judge erred in denying his motion for directed verdict because the 'governing offense' here, attempted indecent assault and battery on a child under fourteen, is a noncontact offense that does not qualify as a 'sexual offense' for purposes of G. L. c. 123A, § 1. We affirm.
1. Background. The judge's factual findings are largely undisputed. The defendant, who was forty-eight years old at the time of trial, has a life long history of sexual violence against children, interrupted only by a previous lengthy commitment to the Treatment Center. The defendant's sexual violence against children began in 1975, when, as a thirteen year old juvenile, he assaulted a nine year old girl by beating her and sticking his fingers in her vagina. In May of 1976, when he was fourteen, the defendant sexually assaulted a seven year old girl in the woods at the rear of her home. Shortly thereafter, in August of 1976, the defendant vaginally raped a four year old girl.
Beyond these offenses, the defendant also committed sexual offenses in California while he was a juvenile.
In January of 1979, as an adult offender, the defendant forced a five year old girl to grab and rub his penis. He placed his hand on her vagina and instructed her to perform oral sex on him, but she refused. Only three months after being placed on probation for that offense, the defendant armed himself with a knife and raped a thirteen year old girl in multiple ways. In the course of his violent sexual assaults, he poked her chest, stomach, and legs with the knife, tied a rope around her neck, dragged her around the room, and choked her.
While incarcerated for these offenses, the defendant was committed to the Treatment Center as a sexually dangerous person in 1982. He remained there and progressed through every stage of sex offender treatment until 2001 when he was released into the community. In 2004, the defendant went to live with a cousin and her family, which included an eleven year old boy. In February of 2004, the defendant asked the boy if he wanted to make 'a whole bunch of money.' He took the boy upstairs to a bedroom, made him promise to keep the arrangement secret, and directed the boy to lie face down on the bed. The defendant told the child that he would pay him big money if the child allowed him to grope his buttocks, but the child refused. In the ensuing days, the defendant asked the boy to procure him a female (regardless of age), and renewed his offer to pay the boy money to grope his buttocks. The defendant also began paying unusual attention to the boy, making him special meals and letting him play with some of the defendant's personal items.
The defendant later changed his request and asked the boy to procure him a male of any age.
After the boy's disclosure to his parents and the police, the defendant pleaded guilty to attempted indecent assault and battery on a child under fourteen, failing to register as a sex offender, paying for sexual conduct, and lewd and lascivious behavior. The defendant was sentenced to terms of imprisonment for these offenses, and returned to the Treatment Center. There, he progressed through several stages of treatment, but failed to complete the final two phases of treatment -- relapse prevention and a release plan.
2. Discussion. The trial judge's factual findings, which are supported by the evidence, 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 (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." Commonwealth v. Suave, 460 Mass. 582, 584 n.3 (2011), quoting from G. L. c. 123A, § 1. We reject the defendant's contention that the judge erred in denying his motion for directed verdict because the offense of which he was most recently convicted (attempted indecent assault and battery on a child under fourteen) is a noncontact offense that does not qualify as a 'sexual offense' for purposes of G. L. c. 123A, § 1.
Preliminarily, we observe that the defendant operates under the incorrect assumption that a petition for commitment is limited by the nature of his most recent incarceration. The statute imposes no such limitation and extends to 'a person who has ever been convicted of or adjudicated as a delinquent juvenile . . . by reason of a sexual offense as defined in section 1, regardless of the reason for the current incarceration, confinement or commitment . . .' (emphasis supplied). G. L. c. 123A, § 12(a), as amended by St. 2004, c. 66, §§ 7, 8. Having been convicted (and adjudicated delinquent) of violent sexual offenses on numerous instances in the past, the defendant falls within the ambit of § 12 regardless whether his current incarceration at the time of petition is owing to a sexual offense defined in § 1. Even were that not so, it would not avail the defendant in this case because § 1 specifically includes an 'attempt' to commit an enumerated sexual offense (such as indecent assault and battery on a child under fourteen) as a 'sexual offense.'
Indeed, in this case only the fortuity of the young boy's refusal to permit the defendant to grope his buttocks prevented the offense from reaching completion.
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Nothing in Commonwealth v. Suave, supra at 587-589, is to the contrary. Unlike in Suave, this defendant does not have a history of only noncontact sexual offenses. To the contrary, he suffers from pedophilia, a mental abnormality that predisposes him to commit violent criminal sexual acts and renders him a menace to the health and safety of other persons, particularly children, as is evident from his extensive criminal history of sexual violence when not confined.
Judgment affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),