Commonwealth v. Kenneth Parry.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-934

COMMONWEALTH

vs.

KENNETH PARRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a five-day jury trial in the Superior Court, the

defendant, Kenneth Parry, was adjudged a sexually dangerous

person (SDP) pursuant to G. L. c. 123A, § 14 (d), and committed

to the Massachusetts Treatment Center for a period of from one

day to life. On appeal, the defendant challenges the

sufficiency of the evidence, claiming that the evidence failed

to establish beyond a reasonable doubt that he suffers from a

statutorily required "mental abnormality or personality

disorder" making him more likely to commit further sexual

offenses. G. L. c. 123A, § 1. We affirm.

1. Facts of the governing offenses. In 2006, Parry was

convicted of two counts of assault and battery, five counts of
indecent assault and battery on a child under fourteen, and one

count of unnatural rape of a child.1 He was sentenced to a term

of incarceration of from twelve to fifteen years in prison with

a five-year term of probation to be served from and after his

term of incarceration. The victims, whom we shall refer to as

C.K. and N.K., were twelve year old boys who were friendly with

Parry's son. During the months of November and December 2003,

the victims slept over Parry's home. On the first sleepover,

C.K. was awoken to Parry "cuddling" him. During another

sleepover, C.K. awoke to Parry once again "cuddling" him and

then stroking C.K.'s penis outside of his clothing. Another

time, C.K. awoke to Parry touching C.K.'s penis and then anally

raping him. Parry also sexually assaulted N.K. during these

sleepovers, touching N.K.'s penis over his clothing, "spooning"

him, and, on two occasions, N.K. awoke to Parry "dry humping"

him.

As this court stated in Commonwealth v. Garcia, 95 Mass.
1

App. Ct. 1, 5 n.8 (2019),

"We recognize that the language appearing in [certain]
statute[s] dates to an earlier time. We do not intend by
our reference to the term, consistent with the statutory
language, to adopt or endorse any pejorative connotation
that may flow from the designation of such conduct as
'unnatural' (even when engaged in by consenting adults),
and we invite the Legislature to update the statutory
language" (emphasis added).

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2. Additional sexual misconduct. In 2002, Parry was

charged with rape of a child and two counts of indecent assault

and battery on a child fourteen or over but found not guilty

after a jury trial. The complaint alleged that Parry, who was

in a dating relationship with a woman who had a son, had slept

in the same bed as the woman's son. The son reported that he

was asleep in bed and awoke to Parry attempting to anally

penetrate him, and that Parry forced him to masturbate Parry

until he ejaculated. In a separate case in 2004, Parry was

charged with four counts of rape of a child, four counts of

indecent assault and battery on a child under fourteen, and two

counts of disseminating matter harmful to a child. The charges

in that case were based on the reports of two boys, both of whom

were friendly with Parry's son. One boy reported that Parry had

orally and anally raped him, and both boys reported that Parry

committed indecent assault and battery during a sleepover or a

camping trip. This case was dismissed after a mistrial

occurred.

3. Procedural history. In December of 2018, Robert H.

Joss, Ph.D., provided an expert opinion that the defendant was a

sexually dangerous person, and the Commonwealth filed a petition

for civil commitment in the Superior Court. In February of

2021, a finding of probable cause was entered. Two qualified

examiners interviewed and evaluated the defendant and reached

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different conclusions. Qualified examiner Dr. Kaitlyn Peretti

wrote a report opining that Parry was an SDP, and qualified

examiner Dr. Gregg A. Belle wrote a report that Parry was not an

SDP. Parry retained two licensed psychologists, Dr. Leonard A.

Bard and Dr. Laurie L. Guidry, to testify as independent

experts, both of whom opined that Parry was not sexually

dangerous.

Trial commenced on May 5, 2023.2 The Commonwealth called

one witness, qualified examiner Dr. Peretti, and introduced

seven exhibits into evidence. The defendant called qualified

examiner Dr. Belle and the two independent expert witnesses,

Drs. Bard and Guidry, along with the introduction of six

exhibits into evidence. The jury found that Parry was a

sexually dangerous person. This appeal followed, challenging

the sufficiency of the evidence.

4. Sufficiency of the evidence. In analyzing a challenge

to the sufficiency of the evidence, we consider "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. Husband, 82 Mass. App. Ct. 1, 4 (2012),

At the time of trial, the defendant was fifty-seven years
2

of age.

4
quoting Commonwealth v. Blake, 454 Mass. 267, 271 (2009)

(Ireland, J., concurring).

Parry challenges the sufficiency of the evidence and argues

that the Commonwealth's evidence failed to prove beyond a

reasonable doubt that he is a sexually dangerous person as

defined by G. L. c. 123A, § 1. This statute defines a sexually

dangerous person as a person convicted of certain enumerated

sexual offenses and who suffers "from a mental abnormality or

personality disorder which makes the person likely to engage in

sexual offenses if not confined to a secure facility" (citation

omitted). Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 335

(2007).

Specifically, Parry claims that the evidence was

insufficient to prove that he suffers from a mental abnormality

that would result in a risk to reoffend sexually. The term

"mental abnormality" has been defined 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." Starkus, 69 Mass. App. Ct. at 335, quoting

G. L. c. 123A, § 1. As to the risk of reoffense, it is for the

fact finder to determine what is "likely." Commonwealth v.

Boucher, 438 Mass. 274, 276 (2002). "Such a determination must

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be made on a case-by-case basis, by analyzing a number of

factors, including the seriousness of the threatened harm, the

relative certainty of the anticipated harm, and the possibility

of successful intervention to prevent that harm." Id. "While

'likely' indicates more than a mere propensity or possibility,

it is not bound to the statistical probability inherent in a

definition such as 'more likely than not.'" Id. at 277.

Here, the Commonwealth presented evidence from Dr. Peretti,

a qualified examiner, who opined that Parry suffered from the

mental abnormality of pedophilic disorder under the Diagnostic

and Statistical Manual of Mental Disorders (DSM-V). In her

opinion, due to that mental abnormality, Parry was likely to

sexually reoffend if he was not confined to a secure facility.

On the other hand, the defendant presented evidence from three

experts. Dr. Belle opined that Parry's governing offense and

history supports a determination that his behavior was driven by

pedophilic disorder, but that he did not meet the criteria for a

finding of mental abnormality. Specifically, in 2021, Dr. Belle

opined that Parry did meet the definition of a mental

abnormality "best described as Pedophilic Disorder, Sexually

Attracted to Males, Nonexclusive Type." In 2023, however, Dr.

Belle amended his opinion and opined that even though "Mr.

Parry's underlying Pedophilic Disorder drove his sexual

offending behaviors, it is no longer [Dr. Belle's] opinion that

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[Parry's] paraphilic condition represents a statutorily defined

mental abnormality." Drs. Guidry and Bard opined that Parry did

not meet the criteria for having a mental abnormality, and all

of Parry's experts agreed that he was not likely to engage in a

sexual offense if not confined to a secure facility.3

We agree with the Commonwealth that Parry's claim "is an

attack upon the weight, not the sufficiency, of the evidence."

Husband, 82 Mass. App. Ct. at 6. The fact finder must decide

how much weight to give the evidence. "The choice between the

credibility of two sets of experts belonged to [the jury] as the

trier[s] of fact and as . . . firsthand observer[s] of the

testimony and demeanor of the witnesses under direct and cross-

examination." Id. We further note that the Commonwealth

carried its burden of proof of the element of "mental

abnormality." The jury considered the written report and

testimony of Dr. Peretti, who opined that Parry met the criteria

for a pedophilic disorder, nonexclusive type, sexually attracted

to males, under the DSM-V definition.4 Dr. Peretti's opinion was

3 Dr. Belle opined that Parry was properly diagnosed with
pedophilic disorder but that Parry's disorder does not meet the
statutory definition of a mental abnormality and would not cause
him to create future harm to children. Dr. Bard opined that
Parry does not suffer from a mental abnormality. Dr. Guidry
opined that Parry does not suffer from a mental abnormality or
personality disorder.

4 According to Dr. Peretti, the DSM-V diagnostic criteria
for pedophilic disorder are that (A) over a period of at least

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based on the fact Parry had offended against two prepubescent

boys on three occasions, reported being sexually attracted to

his victims, and that his sexual attraction to the victims

contributed to his crimes. Dr. Peretti also considered the

possibility that Parry was sexually preoccupied with

prepubescent boys, committed the sexual offenses against these

prepubescent boys despite having an age-appropriate sexual

partner, and committed the offenses while his son and wife were

present in the home. Further, Dr. Peretti did not credit

Parry's statement that he was no longer interested in sex and

did not have any sexual thoughts due to a medical condition,

especially given the fact that Parry's single observational

report was the result of engaging in consensual oral sex with a

peer at the Massachusetts Treatment Center. The evidence was

therefore sufficient to establish that Parry suffers from a

mental abnormality.

The defendant next contends that even if the Commonwealth

established that he suffered from a mental abnormality, it

failed to present sufficient evidence to establish his

six months, the individual has recurrent intense sexually
arousing fantasies, sexual urges, or behaviors involving sexual
activity with a prepubescent child or children (generally age
thirteen or younger); (B) the individual has acted on these
sexual urges, or the sexual urges or fantasies cause marked
distress or interpersonal difficulty; and (C) the individual is
at least sixteen years old and at least five years older than
the child or children in criterion A.

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likelihood of risk to reoffend. Again, the Commonwealth

presented sufficient evidence to establish that Parry was likely

to reoffend sexually if not confined to a secure facility.

Dr. Peretti's opinion that Parry continued to be a risk to

reoffend sexually was based in part on her interpretation of

both static and dynamic risk factors5 as well as Parry's score on

the Static-99R, a tool that specifically measures a sex

offender's risk to reoffend. In fact, at trial, all of the

experts scored Parry as a "four" on a risk scale from negative

three to twelve under the Static-99R. The experts disagreed,

however, as to what this score meant as far as Parry's risk to

reoffend. According to Dr. Peretti, Parry's risk to reoffend

sexually was "Above Average." Additionally, while Dr. Peretti

acknowledged that Parry had attended and made progress in sex

offender treatment, in her opinion his risk was not sufficiently

reduced because intensive sex offender therapy had just begun.

The fact that Parry had not spent a considerable amount of time

in intensive sex offender counselling was important to Dr.

Peretti's risk analysis. She opined that because Parry had yet

5 The static factors Dr. Peretti relied on were Parry's age,
past history, and the nature of his sexual offenses. Some of
the dynamic factors that Dr. Peretti considered were Parry's
interest in prepubescent boys, his failure to create
interventions to address this deviancy, his failure to
understand how to manage his risk of reoffense in the community,
intimacy deficits, poor problem solving skills, a lack of
positive social influences, and poor release planning.

9
to address the motivating reasons for his sexually deviant

behavior, he presented as a risk to reoffend. Dr. Peretti

opined that Parry was likely to reoffend sexually if he was not

confined to a secure institution. She considered "the amount of

historic risk that's present, the amount of dynamic risk

factors, and that although he has probation and that's

protective, it doesn't sufficiently outweigh the amount of risk

that he presents with." Dr. Peretti further explained that when

she considered risk, she also considered the Static-99R score,

the fact that Parry has not completed sex offender treatment,

that he was unable to demonstrate an understanding of the

factors that contributed to his offending and, importantly,

Parry was unable to demonstrate an understanding of what his

current risks are or how he would manage those risks in the

community. The Commonwealth has met its burden with respect to

risk to reoffend.

In conclusion, the defendant's claim on appeal boils down

to a disagreement with the weight of the evidence rather than

the sufficiency. While the jury were free to reject the opinion

of Dr. Peretti and accept the opinions of Drs. Bard, Belle, and

Guidry, it was equally permissible for the jury to credit the

opinion of Dr. Peretti. "Experts' conclusions are not binding

on the trier of fact, who may decline to adopt them in whole or

in part. As a corollary, where testimony from various experts

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is conflicting, it is for the trier of fact to determine which

expert's testimony to accept, if any." Husband, 82 Mass. App.

Ct. at 10, quoting Brodin & Avery, Massachusetts Evidence

§ 7.4.3 (8th ed. 2007).

Judgment affirmed.

By the Court (Rubin, Henry &
Walsh, JJ.6),

Clerk

Entered: March 18, 2025.

6 The panelists are listed in order of seniority.

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