Commonwealth v. James Coty.

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

22-P-1095

COMMONWEALTH

vs.

JAMES COTY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a judgment of the Superior Court

that adjudged him to be a sexually dangerous person (SDP)

pursuant to G. L. c. 123A, § 14. The defendant argues that the

Commonwealth failed to present sufficient evidence to support

such a finding -- that is, that the evidence was insufficient to

show that at the time of trial the defendant "suffer[ed] from a

mental abnormality or personality disorder which [made him]

likely to engage in sexual offenses if not confined to a secured

facility." G. L. c. 123A, § 1. After reviewing the record, we

are satisfied that the evidence, including several expert

reports and lengthy expert trial testimony, was well grounded in

fact and more than sufficient to support the jury's finding.

Accordingly, we affirm.
Background. We briefly summarize the relevant history and

reserve our detailed analysis of the evidence to the discussion

section. The defendant's history of sexual offenses began in

1968, continued for decades, and culminated in the instant

petition to civilly commit him as a sexually dangerous person.

In 1993 and again in 1995, the defendant solicited sex from

strangers in the Williams College library. In 1996, he was

convicted of sexually abusing two young children in his family

over an extended period (with one, beginning at age seven), and

sentenced to seven to ten years in prison. The defendant began

reoffending almost immediately after his release in 2006 1 and,

following a February 2010 conviction for rape of a child, was

returned to prison until 2020.

In January 2020, the Commonwealth filed its second petition

seeking the defendant's commitment as a sexually dangerous

person under G. L. c. 123A, § 12. The Commonwealth engaged two

qualified examiners, Dr. Kaitlyn Peretti and Dr. Angela Johnson,

both of whom interviewed the defendant and concluded in their

respective reports that the defendant was sexually dangerous.

The defendant engaged his own qualified expert, Dr. Daniel

Kriegman, who concluded that the evidence was insufficient to

1 We note that the Commonwealth filed its first SDP petition
before the defendant was released in 2006. After a bench trial,
the defendant was found not sexually dangerous.

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support a finding of current sexual dangerousness. After a

three-day jury trial in October 2021, the jury found that the

defendant was currently a sexually dangerous person. This

appeal followed.

Discussion. A defendant "may be committed as a sexually

dangerous person if he has [1] been convicted of a sexual

offense, [2] suffers from a mental abnormality or personality

disorder that renders him a menace to the health and safety of

others, and [3] is likely to engage in sexual offenses if not

confined" to a secure facility. 2 Commonwealth v. Fay, 467 Mass.

574, 580, cert. denied, 574 U.S. 858 (2014). See Commonwealth

v. Cahoon, 86 Mass. App. Ct. 266, 268 (2014); G. L. c. 123A, § 1

(definition of "Sexually dangerous person"). For a jury to

render a verdict of sexual dangerousness, they must find beyond

a reasonable doubt that the defendant "is likely to attack or

otherwise inflict injury on . . . victims because of his

uncontrolled or uncontrollable desires." G. L. c. 123A, § 1.

In the context of sexual dangerousness, the term "likely" means

"reasonably to be expected in the context of the particular

facts and circumstances at hand." Commonwealth v. Boucher, 438

Mass. 274, 276 (2002). The jury may "and should consider the

evidence of the [defendant]'s past sexual misconduct and . . .

2 The first element, conviction of a sexual offense, is not
at issue in this appeal.

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draw inferences based on that misconduct" to arrive at this

finding. Wyatt, petitioner, 428 Mass. 347, 354 (1998).

However, the jury may not rely exclusively on past misconduct in

rendering a verdict that the defendant is a sexually dangerous

person. See Commonwealth v. Walsh, 376 Mass. 53, 58 (1978).

The defendant argues that the evidence presented by the

Commonwealth was insufficient to support the ultimate finding of

sexual dangerousness, particularly in that he was sixty-seven

years old at the time of trial "and his recent behavior has

markedly improved." The defendant's argument directly

challenges the opinions of the Commonwealth's qualified experts

as unreliable; he contends that they "placed undue influence

upon [his] criminal sex history and behavior while

incarcerated," and that the opinions were "so incredible,

insubstantial, or otherwise of such a quality that no reasonable

person could rely upon [them]."

We review a challenge to the sufficiency of the evidence

for "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), quoting Commonwealth v. Blake, 454

Mass. 267, 271 (2009). See Commonwealth v. Latimore, 378 Mass.

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671, 677 (1979). We grant particular deference "to findings

resting upon expert testimony." Husband, supra at 4. Indeed,

under Massachusetts law, "qualified examiners are central to the

statutory scheme designed to evaluate the likelihood of a sex

offender to reoffend." Johnstone, petitioner, 453 Mass. 544,

551 (2009), quoting Commonwealth v. Bradway, 62 Mass. App. Ct.

280, 283-284 (2004).

Here, the Commonwealth offered extensive evidence of the

defendant's current sexual dangerousness, centered around the

opinions of the two qualified examiners. Both of those experts

opined, based on the defendant's criminal history, his patterns

of behavioral infractions while incarcerated, his mental

diagnoses, his insufficient engagement in treatment, and other

evidence, that the defendant currently meets the statutory

definition of a sexually dangerous person. Notably, there was

no challenge to the qualifications of either expert at trial.

Nor did the defendant raise an objection to the expert testimony

seeking to have it excluded on reliability grounds. See

Commonwealth v. Shanley, 455 Mass. 752, 761-762 (2010).

The evidence the experts cited in support of their opinions

was compelling. The defendant's criminal history, beginning in

1968, includes multiple convictions for indecent exposure,

dissemination of obscene material, enticing a child, and

multiple counts of rape of a child. As referenced above, he was

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incarcerated for ten years between 1996 and 2006 after pleading

guilty to thirteen charges surrounding the sexual abuse and rape

of children he lived with. He was convicted of enticing a child

for an incident that occurred immediately following his release

from prison in 2006 and sentenced to a term of fifteen months in

the house of correction (HOC). In 2010, he was again convicted

of the rape of a child, an offense that led to his most recent

incarceration from 2010 to 2020 and the governing offense in his

2021 SDP trial.

The defendant continued to offend sexually while

incarcerated and in pretrial confinement in the HOC, with

disciplinary reports detailing concerning behavior including the

defendant exposing himself to his cellmates, soliciting sexual

acts from other inmates, openly masturbating and masturbating

while watching other inmates in the shower, and entering a

shower stall while attempting to engage sexually with another

inmate.

Both of the Commonwealth's qualified experts agreed that

the defendant's diagnoses met the statutory definition of a

mental abnormality or personality disorder. They opined that

the defendant suffers from exhibitionistic disorder, voyeuristic

disorder, antisocial personality disorder, and a general lack of

power to control his sexual impulses as evidenced by his

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compulsive engagement in sexual offenses and infractions,

including while incarcerated and in temporary confinement.

The defendant also has a history of ambivalence to

treatment. He first participated in the Sex Offender Treatment

Program (SOTP) during his incarceration from 1996 to 2006 but

was terminated from treatment due to continued sexual

misconduct. During his incarceration from 2010 to 2020, the

defendant again enrolled in treatment, but was terminated after

additional episodes of sexual misconduct.

In short, there was extensive evidence supporting the

opinions of the Commonwealth's qualified experts. The

defendant's argument in response asks us to conclude, as a

matter of law, that these opinions were so unreliable that they

had no value as evidence and should have been excluded from

consideration. That is a tall order, to be sure, as we would

give deference to the trial judge's admission of the opinions

even if the question were a close one. But for the reasons

stated above, the expert opinions were well grounded. And while

the defendant highlights the opinion of his own qualified

examiner, Dr. Kriegman, that the defendant does not currently

meet the criteria for sexual dangerousness, under the Latimore

standard "we do not weigh the supporting evidence against

conflicting evidence." Commonwealth v. Rarick, 87 Mass. App.

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Ct. 349, 351 (2015), quoting Commonwealth v. Merry, 453 Mass.

653, 660 (2009).

Indeed, when reviewing for sufficiency of the evidence we

must "disregard contrary evidence presented by the defendant

including the testimony of a defense expert, unless the contrary

evidence demonstrates that the Commonwealth's evidence . . . is

'conclusively incorrect.'" Commonwealth v. Lawson, 475 Mass.

806, 817 (2016), quoting Commonwealth v. O'Laughlin, 446 Mass.

188, 204 (2006). See Latimore, 378 Mass. at 677. No such

showing was made here.

Judgment affirmed.

By the Court (Wolohojian, 3
Englander & Brennan, JJ. 4),

Assistant Clerk

Entered: April 24, 2024.

3 Justice Wolohojian participated in the deliberation on
this case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.

4 The panelists are listed in order of seniority.

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