Opinion
11-P-1322
04-05-2012
THOMAS KENNEY, petitioner.
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 three-day jury trial, a Superior Court jury found that the petitioner, Thomas Kenney, remains a sexually dangerous person pursuant to G. L. c. 123A, § 1, final paragraph, subsection (iii), and denied his petition for discharge from the Massachusetts Treatment Center. See G. L. c. 123A, § 9. Kenney challenges the sufficiency of the evidence for that finding. For the following reasons, we affirm.
Background. We defer and integrate the most material points of fact for discussion in our legal reasoning and analysis.
Analysis. On appeal, Kenney argues that the Commonwealth did not provide the jury with sufficient evidence to prove beyond reasonable doubt each of the prima facie elements required for continued status as a sexually dangerous person (SDP) and denial of his petition. We disagree.
The Commonwealth argues on appeal that the petitioner did not move with adequate specificity to challenge the sufficiency of the Commonwealth's evidence at the close of its original case (and impliedly at the close of all the evidence). The Commonwealth therefore reasons that Kenney has waived the argument. We disagree with this contention. Typically we do not require a party objecting generally to the sufficiency of the evidence at the close of the plaintiff's or petitioner's case to address with great specificity the deficiencies of the evidence. Therefore, we treat the petitioner's claim of insufficiency here as adequately preserved.
1. Standard of review. The Commonwealth bears the burden of proving beyond a reasonable doubt that the petitioner continues to be a sexually dangerous person at the time of the § 9 hearing. See, e.g., Hill, petitioner, 422 Mass. 147, 156, cert. denied, 519 U.S. 867 (1996). When an appellant claims insufficiency of the evidence, we review the finding under the well-settled standard: '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. Blake, 454 Mass. 267, 271 (2009), quoting from Commonwealth v. Boyer, 61 Mass. App. Ct. 582, 589 (2004). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
2. Prima facie elements of ongoing SDP status. In order to continue commitment of an SDP under subsection (iii) of the definition and deny a § 9 petition for examination and discharge, the Commonwealth must prove: (1) that the petitioner was previously adjudicated as sexually dangerous; (2) that the petitioner's past sexual misconduct establishes a general lack of power to control his sexual impulses as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim or aggression against any victim under the age of sixteen; and (3) that the petitioner remains likely to attack or otherwise injure such victims by reason of his uncontrolled or uncontrollable desires. See G. L. c. 123A, § 1, final paragraph, subsection (iii).
Kenney did not contest the first element, his prior adjudication as a sexually dangerous person. The judge, without objection, instructed the jury that Kenney had been previously adjudicated as sexually dangerous.
a. Past sexual misconduct as an indicator of lack of power to control sexual impulses. Kenney has committed numerous repetitive and compulsive acts of sexual misconduct. He has admitted to sexually molesting seven child victims, including boys and girls, ranging in age from three to nine. He further admits to experiencing sexual arousal in connection with the offenses. In addition to these admitted sexual assaults and rapes, Kenney has described many other ongoing inappropriate and sexually impulsive encounters and behaviors.
Kenney admitted that, prior to his commitment, he made numerous obscene phone calls and had a history of voyeurism. His foster parents reported awareness of his inappropriate and deviant sexual behavior. While at the Delaney School, Kenney was observed having oral sex with another boy resident. Kenney also pushed and assaulted residents at the Delaney School, threatened and attempted to assault the staff, and made sexualized comments towards residents and staff. When Kenney was twenty-two years old and at Whitney Academy, he engaged in sexual behaviors with two other residents, one of whom was seventeen years old but 'who look[ed] as if he [wa]s 10.' Finally, while Kenney was committed at the treatment center, he had a sexual relationship with another male over the course of six months.
All three expert witnesses, two qualified examiners and one community access board member, agree that Kenney suffers from pedophilia. The experts found that Kenney's pedophilia is chronic and enduring, and they characterized it as a mental disorder resulting in a continuing lack of power to control his sexual impulses. Based on the evidence presented, the jury reasonably could find a sufficient nexus between the petitioner's past sexual misconduct and his continuing inability to control sexual impulses.
Kenney has also exhibited elements of antisocial personality disorder.
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b. Likelihood of future sexual misconduct if released. In addition to the incidents, behaviors, and disorders discussed supra regarding a lack of sexual impulse control, Kenney exhibits multiple risk factors increasing his likelihood of reoffense if not confined. They include: (i) the early age at which the offenses began; (ii) his history of deviant sexual arousal; (iii) the nature of his victims, i.e., stranger victims, unrelated victims, selected male victims, and young victims; (iv) no history of stable intimate adult relationship; and (v) his failure to complete any specific sex offender treatment program. Additionally, Kenney scored in the moderate/high risk category on the Static-99, an actuarial instrument. Further, Kenney, at age thirty-five at the time of trial, does not present with significant protective factors (e.g., advanced age, court supervision upon release, infirmity) which would reduce his risk of recidivism. Finally, in 2009, only one year before the trial, Kenney admitted to sexual fantasies involving 'a boy . . . [of the] same age and behaviors as my victims . . . .' Kenney's multiple risk factors and his continuing pedophilia abundantly support his risk of reoffense.
We conclude that the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that Thomas Kenney remains a sexually dangerous person within the meaning of the statute.
Judgment affirmed.
By the Court (Katzmann, Sikora & Agnes, JJ.),