Commonwealth v. Snow

By the Court (Rubin, Milkey & Carhart, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a bench trial, a Superior Court judge determined that the defendant was a sexually dangerous person (SDP) within the meaning of G. L. c. 123A, § 1. On appeal, the defendant argues that the Commonwealth submitted insufficient evidence that he suffered from pedophilia (the mental abnormality on which the Commonwealth relied to prove that he was an SDP). We disagree and therefore affirm.

In assessing the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Cowen, 452 Mass. 757, 763 (2008). In 1989 and 1990, when he was twenty-nine years old, the defendant repeatedly raped and otherwise sexually assaulted his niece. These assaults occurred with great frequency and the defendant himself described them as occurring "hundreds of times." The rapes included vaginal, anal, and oral rape (fellatio). At the time of the assaults, the niece was ten to eleven years old, and, according to the defendant, she was "flat-chested" and lacked pubic hair. Despite the defendant's telling the niece that he would kill her if she told anyone of the incidents, she came forward in February of 1990. The defendant was convicted of three counts of rape of a child and one count of indecent assault and battery of a child.

Two Commonwealth experts, both qualified examiners (QEs), testified that in their opinion, the defendant was a pedophile. Both relied at least in part upon the definition of pedophilia included in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV):

"[A] diagnosis of pedophilia requires '[a] period of at least six months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 or younger).'"

Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 336 (2007), quoting from DSM-IV. The defendant argues that the evidence was insufficient on two related points: (1) whether the niece was prepubescent at the time he demonstrated his intense sexual arousal toward her, and (2) whether there was evidence that his intense sexual arousal to prepubescent children lasted at least six months in duration.

The defendant relies on evidence that when the niece was examined by a doctor in March of 1990, although she was still at that time premenarcheal, the development of her secondary sexual characteristics had reached stage three (of five) on the so-called "Tanner" scale (indicating, for example, the presence of pubic hair). According to the defendant, this means that she could not have been prepubescent in March of 1990, or at any point recently before that (based on testimony from one of the defendant's experts regarding the progression of time through the stages of the Tanner scale).

This witness testified that the speed at which someone advances through puberty will vary from individual to individual, but that "typically people don't go through the Tanner stages, from one to three, in six months." This witness acknowledged that the defendant's description of the niece's secondary sexual characteristics was "consistent with prepubescence."

As this case reveals, there may not be a medical consensus regarding what the term "prepubescent" means in the context of defining pedophilia (for purposes of the DSM-IV definition or otherwise). Certainly, there was no such consensus among the experts who testified here. For example, QE Barbara Quiñones made clear her view that because the niece had not yet gone through a menstrual cycle by March of 1990, she remained prepubescent even then. Because the judge was entitled to accept such testimony, there was sufficient evidence that the intense sexual arousal that the defendant felt toward a prepubescent girl lasted more than the referenced six months (because there was evidence that the sexual assaults, which began in the summer of 1989, did not stop until February of 1990).

Moreover, there was sufficient evidence to support the judge's SDP finding even under the defendant's theory of when a girl ceases to be prepubescent. There was strong evidence that the niece was prepubescent at least at the time the sexual assaults began, given her age (ten or eleven) and the defendant's own description of her as "flat-chested" and lacking pubic hair. Even if the evidence from the March, 1990, medical examination were taken as definitive proof that the niece ceased to be prepubescent before six months had elapsed from the time the sexual assaults began, the duration requirement can be established through other means. In 2004, the defendant himself stated that he needed to be confined because he feared "that the urges to sexually molest children could come up again." This itself supports a conclusion that he retained an intense sexual arousal to prepubescent children fifteen years after his molestation of the niece began. See Commonwealth v. Reese, 438 Mass. 519, 525 (2003) (judge entitled to credit expert's opinion that admitted pattern of attraction to prepubescent children, combined with presence of other factors, supported diagnosis of pedophilia).

We note that the QE report of Quiñones quoted from a Department of Social Services (currently known as the Department of Children and Families) report dated February 20, 1990, that references a statement made by the defendant's sister that some ten or eleven years earlier, the defendant "had been charged with molesting a baby girl" whom the sister had been babysitting. Neither the judge nor the parties focused on this allegation at trial, and we do not rely on it.

To be sure, the record well establishes that the defendant is not exclusively attracted to prepubescent children. For example, the record documents that he has had sexual contact with a twelve year old boy (the defendant's brother), an eighteen year old girl (the defendant's sister), various adult men (including one that the defendant admits that he raped, even though charges were dismissed when the witness failed to appear), and a calf. However, the fact that he is apparently not an exclusive pedophile does not mean he is not a pedophile.

In addition, in a letter the defendant sent to a male acquaintance regarding housing, the defendant indicated in graphic terms that the man's wife or girlfriend would have to be available for sex with the defendant as a condition of the housing.

Because we reject the defendant's sole argument that there was insufficient evidence to support a finding that he was a pedophile, we affirm.

Judgment affirmed.

By the Court (Rubin, Milkey & Carhart, JJ.),

The panelists are listed in order of seniority.
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Clerk Entered: February 2, 2015.