Opinion
13-P-187
11-26-2014
COMMONWEALTH v. THOMAS TRIPP.
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
Over his lifetime, the defendant, Thomas Tripp, has been convicted of numerous sexual offenses including rape, rape of a child, attempted rape, and a litany of other violent offenses related to those rapes and attempted rapes. In 2011, following a jury-waived trial, a Bristol County Superior Court judge found beyond a reasonable doubt that the defendant was a sexually dangerous person (SDP). The judge ordered him to be civilly committed for between one day and the rest of his life. This appeal ensued challenging the sufficiency of the evidence against him. For the reasons that follow we affirm.
General Laws c. 123A, § 1, provides in relevant part that an SDP is defined as "any person who has been . . . convicted of . . . a sexual offense 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 . . . ."
1. Facts. In 1977, the defendant was civilly committed as an SDP, and he spent fourteen years in a treatment center for SDPs. After his eventual release, he reoffended multiple times. As a result of convictions in 1999, the defendant was serving a ten to fourteen year committed sentence and also had concurrent sentences totaling twenty years of from and after probation. In 2010, toward the end of his incarceration, the Commonwealth filed a petition to have him civilly committed again as an SDP.
At the trial, two qualified examiners and one additional expert witness, a psychologist, testified in favor of the Commonwealth's position that the defendant was an SDP. Two of these witnesses testified that the defendant had a personality disorder. All three testified that, in their opinions, he had a mental abnormality that could be classified as a form of paraphilia. They were not unanimous as to the form of paraphilia that afflicted him, but all three testified that the defendant should be categorized as an SDP. Two other experts for the defense believed that the defendant was a violent repeat rapist, but opined that he had neither a personality disorder nor a mental abnormality necessary to categorize him as an SDP.
The judge weighed all of the expert testimony and found beyond a reasonable doubt that the defendant had a personality disorder as well as a mental abnormality, as defined by G. L. c. 123A, § 1. The judge categorized the defendant's mental abnormality as paraphilia not otherwise specified (NOS), Nonconsent that led the defendant to have a "deviant sexual interest in nonconsenting adults." The judge found beyond a reasonable doubt that it was "reasonably to be expected" that he would reoffend and that he was "a menace to the health and safety of other persons." See Commonwealth v. Boucher, 438 Mass. 274, 276 (2002) (noting that one of the statutory requirements to be classified as an SDP is that the defendant must be "likely" to reoffend and that the term "likely" should be construed to mean "reasonably to be expected in the context of the particular facts and circumstances at hand"); G. L. c. 123A, § 1 (defining mental abnormality in terms of likelihood that an SDP will be "menace" to others). In spite of the defendant's advanced age of seventy-three, the judge found that the defendant was still physically capable of reoffending. Finally, the judge found beyond a reasonable doubt that the defendant was an SDP and ordered civil commitment.
The judge observed that the defendant was fifty-five years old at the time of his last sexual offense, well past the age of forty, when most adult rapists start to decline in their likelihood of reoffending.
2. Discussion. The defendant claims that there was insufficient evidence to establish that he suffered from a mental abnormality or personality disorder, at least one of which must be found by the judge pursuant to G. L. c. 123A, § 1, to conclude that he is an SDP. On a sufficiency of the evidence claim following a finding that the defendant is an SDP, we inquire "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) (Ireland, J., concurring), quoting from Commonwealth v. Boyer, 61 Mass. App. Ct. 582, 589 (2004). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), citing Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
Here the judge had ample evidence to find beyond a reasonable doubt that the defendant had some form of personality disorder, as that term is defined by G. L. c. 123A, § 1. While the judge rejected a diagnosis of antisocial personality disorder, she credited two experts' observations that the defendant had some form of personality disorder. She also credited a defense expert's observation that the defendant exhibited many antisocial traits. It is irrelevant that the judge did not provide a medical name for the defendant's personality disorder; the disorder that the defendant has need only fit the statutory definition of the term "personality disorder." See Dutil, petitioner, 437 Mass. 9, 14-15, 18 (2002).
There was similarly ample evidence that would have allowed the judge to conclude beyond a reasonable doubt that the defendant had a mental abnormality. Three experts testified that the defendant had some form of paraphilia, and two of them testified that it was paraphilia NOS, nonconsent.
A key point of contention between the parties is whether paraphilia NOS, nonconsent is a valid diagnosis for a mental abnormality. This is the subject of debate among the medical community, and paraphilia nonconsent (NOS) was rejected by the American Psychiatric Association for inclusion in its Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, text revision (DSM-IV-TR 2000). Judges are not, however, bound to adhere to the list of mental disorders found in the DSM-IV-TR, and that manual is not even referenced in the definitions of "sexually dangerous person" or "mental abnormality." See Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 336 (2007). See also G. L. c. 123A, § 1. States are "afforded the widest latitude in drafting" SDP statutes particularly when there is disagreement about how to categorize a diagnosis in the medical field. Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997), citing Jones v. United States, 463 U.S. 354, 365, n.13 (1983).
The defendant's argument that there was not unanimity on all the details of each diagnosis by the Commonwealth's witnesses is unavailing. In the instant case, "the lack of psychiatric unanimity at trial did not by itself render insufficient the evidence on the issue whether the defendant was sexually dangerous. . . . [T]he trial judge must [only] be satisfied beyond a reasonable doubt that the defendant is an SDP." Commonwealth v. Lamb, 372 Mass. 17, 23-24 (1977).
3. Conclusion. We discern no error in the judge's careful determination that there was sufficient evidence to establish beyond a reasonable doubt that the defendant is an SDP. As the defendant's claim of a due process violation was premised on the insufficiency of the evidence presented in this case, we also hold that his due process rights have not been violated by the order for his civil commitment.
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 26, 2014.