Commonwealth v. Fay
| Decision Date | 21 March 2014 |
| Parties | COMMONWEALTH v. Harold FAY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
John Fennel, Committee for Public Counsel Services, for the defendant.
Katherine A. Robertson, Assistant District Attorney, for the Commonwealth.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
On October 15, 2012, at the conclusion of a jury-waived trial, the defendant was found to be a sexually dangerous person and committed to the Massachusetts Treatment Center pursuant to G.L. c. 123A, § 14 ( d ). In support of her decision, the trial judge found that the defendant suffered from pedophilia and exhibitionism and that he was likely to reoffend against children. She further found that, although the defendant was only likely to commit noncontact sexual offenses, such as open and gross lewdness, in the future, these offenses would “instill in his child victims a reasonable apprehension of being subjected to a contact sex offense,” particularlywhere the defendant's actions in the past exhibited luring, approaching, and confining behavior. Thus, she held that the defendant was a “menace” as defined by this court in Commonwealth v. Suave, 460 Mass. 582, 588, 953 N.E.2d 178 (2011), and ordered him civilly committed.
On appeal, the defendant first argues that the evidence was insufficient to support a finding that he is a “menace” to the health and safety of others. He contends that the judge improperly considered evidence that he exhibited “confining” behavior based on a criminal charge of which he was acquitted, and that if his “confining” behavior had not been considered, evidence that he lured or approached the children he targeted would have been insufficient. He further argues that, as a matter of law, he cannot be categorized as a sexually dangerous person within the meaning of G.L. c. 123A, where he is not likely to commit contact sex offenses in the future. Finally, he argues that, if his actions do fall within the statute, his commitment violates his right to substantive due process because he cannot be considered sufficiently “dangerous” absent predicted violent conduct.
We conclude that the evidence was sufficient to prove that the defendant was a menace to the health and safety of others, and a sexually dangerous person within the meaning of G.L. c. 123A. We also conclude that the defendant's commitment as a sexually dangerous person does not violate his substantive due process rights, where his likely future sexual misconduct would instill in his victims a reasonable apprehension of being subjected to a contact sex offense.
1. Prior offenses. The Commonwealth moved to commit the defendant as a sexually dangerous person based on six prior convictions of “[s]exual offenses” under G.L. c. 123A, § 1, occurring during four incidents over a fifteen-year period, each involving children under the age of fourteen. We briefly summarize the facts of these convictions as presented to the judge at trial.
a. The Athol offense. On November 3, 1995, the victim, a thirteen year old boy, was at the defendant's house, where, the victim alleged, the defendant showed him a sexually explicit movie. He further alleged that the defendant asked him to unzip his pants, and when he refused, the defendant backed him into a corner while continuing to beg him to expose his penis. The victim finally exposed his penis. The defendant then exposed his penis to the victim to show him his scars. When the victim began to leave, the defendant said, “No.” He then gave the victim candy and asked, “You're not going to tell anyone, are you?” After finally leaving the house, the victim went home, and “kept praying and praying.”
The defendant was convicted of one count of open and gross lewdness and sentenced to two and one-half years in a house of correction, with thirty days to be served and the balance suspended for a five-year probationary period. 1 Conditions of probation required that he undergo sex offender evaluation and treatment 2 and that he have no unsupervised contact with children.
b. The Westfield offense. In June, 1999, the defendant visited the home of his daughter, her fiancé, and her four children. At some point, he entered the bedroom his eleven year old granddaughter shared with her nine year old sister and woke both girls. He knelt at their bedside, looking at them and then at his penis. He began to touch his penis, and the granddaughter believed he was trying to get the girls to look at it as well.
Later that same day, his granddaughter was sitting in his truck, pretending to drive it. The defendant got into the truck and sat beside her in the passenger seat. He engaged her in sexually explicit conversation and offered to show her his penis. He then told her that his penis was erect, and asked her to look away as he masturbated.
The victim asked him if she could leave and the defendant said, “No,” as others “would think something strange was going on.” The defendant gave her a fire extinguisher box and instructed her to look at it while he masturbated. She eventually looked at the defendant, saw his hand on his penis, and noticed that he had ejaculated into a garbage bag. She later disclosed this incident to her mother, crying hysterically as she did so.
In 2001, the defendant pleaded guilty to one count of open and gross lewdness and one count of indecent exposure relating to these incidents. He was sentenced to six months in a house of correction, to be followed by ten years of probation, which required him to undergo sex offender evaluation and treatment and to have no contact with children under the age of sixteen unless properly supervised.3
c. The Rutland offense. At some point between September 4 and 6, 1999, three girls, aged from ten to eleven, saw the defendant sitting on a cooler as they walked through a campground. He was wearing shorts, with his legs apart, and his penis exposed. The defendant watched the girls pass by, and minutes later he followed them on a trail.
On a subsequent day, the girls saw the defendant walk past them, and he again sat down with his legs apart and his penis exposed under the leg of his shorts. Disturbed, the girls began to leave the area. As they left, he called to them, handed them an empty cigarette pack, and asked them to get cigarettes for him from his wife. As they approached, they again saw his penis exposed. Afraid, the girls declined to get cigarettes for him. As they walked away, they saw the defendant staring at them while touching his penis. In reporting the incident, the girls all said that they were scared by the events, and one of the girls reported that she was unable to eat for three days.
In 2001, the defendant pleaded guilty to three charges of open and gross lewdness. He was sentenced to from two and one-half to three years' imprisonment, to be followed by ten years of probation, which required that he undergo sex offender evaluation and treatment and have no contact with children under sixteen without supervision.
d. The Winchendon incidents. On October 20, 2010, the defendant visited an acquaintance at her home, where she lived with the victim, her eight year old daughter. The victim told police that the defendant had exposed himself to her twice that day. When the victim and her cousin went outside to tie up the family dog, the defendant followed, staring at both of them. The victim ran back into the house in tears, and her mother saw the defendant standing in the doorway with his penis exposed. Later, the defendant sat behind the victim as she used the computer in her mother's bedroom, while her mother lay in bed. When the victim turned around, she saw the defendant touching his exposed penis.
The defendant pleaded guilty to open and gross lewdness. He was sentenced to six months in a house of correction, to be served concurrently with the sentence he was already serving for violating his probation.4
2. Expert testimony. At trial, the Commonwealth presented testimony from two qualified experts, Dr. Gregg A. Belle and Dr. Katrin Rouse Weir, both of whom testified that the defendant met the definition of a sexually dangerous person. Both doctors opined that the defendant suffered from pedophilia and exhibitionism; that both conditions met the definition of “mental abnormality” under G.L. c. 123A, § 1; and that due to that mental abnormality, the defendant was highly likely to reoffend through noncontact sexual offenses such as open and gross lewdness. Dr. Rouse Weir further opined in her qualified examiner's report (and during her testimony) that the defendant's “predicted sexual offenses,” even if noncontact in nature, would cause children, “due to their lack of experience and sophistication, ... to experience fear of an imminent sexual offense by experiencing an adult acting in a sexual manner directed at them.”
The defendant presented testimony from two experts, Dr. Leonard Bard and Dr. Joseph Plaud. Both opined that, while the defendant would likely reoffend, he was unlikely to commit contact sexual offenses. Therefore, they both determined that he did not meet the statutory definition of “sexually dangerous person.” 5
3. The judge's findings. The judge determined that the Commonwealth had proved that the defendant was a sexually dangerous person.6 She first found that the defendant had clearly been convicted of predicate sexual offenses. Next, she found that the defendant suffered from the mental abnormalities of both pedophilia and exhibitionism, noting that he had “a demonstrated history of offending with prepubescent children for a fifteen-year period between 1995 and 2010, in four separate instances.” She further determined that, as a result of those mental abnormalities, he was likely to commit future criminal, but noncontact, sexual acts.
The judge found that the defendant's mental abnormality, and his predisposition to commit criminal sexual...
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