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SJC-12173

                COMMONWEALTH   vs.   RICHARD GEORGE.



       Worcester.      December 8, 2016. - June 21, 2017.

 Present:   Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.


Sex Offender. Constitutional Law, Sex offender. Due Process of
     Law, Sex offender, Substantive rights. Evidence, Sex
     offender, Expert opinion, Relevancy and materiality.
     Witness, Expert.



     Civil action commenced in the Superior Court Department on
October 11, 2013.

    The case was tried before Beverly J. Cannone, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     David B. Hirsch for the defendant.
     Nathaniel R. Beaudoin, Assistant District Attorney, for the
Commonwealth.


    HINES, J.   After a jury trial in the Superior Court, the

defendant, Richard George, was determined to be a sexually

dangerous person (SDP) pursuant to G. L. c. 123A.      In accordance

with the statute, the judge committed the defendant to the
                                                                       2


Massachusetts Treatment Center (treatment center) for an

indeterminate period of from one day to life.     The defendant

filed a timely appeal challenging the commitment on the grounds

that (1) a diagnosis of antisocial personality disorder (ASPD)

is a constitutionally inadequate basis for commitment as an SDP;

and (2) the judge erroneously admitted expert opinion testimony

on the likelihood of reoffense and the results of the Static-99R

risk assessment tool.   We allowed the defendant's application

for direct appellate review to clarify the relevance of an ASPD

diagnosis in the sexual dangerousness calculus.

    We conclude that an ASPD diagnosis is a sufficient

predicate for sexual dangerousness so long as other evidence

establishes a nexus between that condition and the factors

warranting confinement to a secure facility.     Also, we discern

no error in the judge's evidentiary rulings requiring reversal.

Therefore, we affirm the judgment and order for the defendant's

civil commitment to the treatment center as an SDP.

    Background.   1.    Pretrial proceedings.   In October, 2013,

the Commonwealth filed a petition pursuant to G. L. c. 123A,

§ 12, seeking an adjudication that the defendant is an SDP.       In

April, 2014, a Superior Court judge found probable cause to

believe that the defendant is an SDP and committed him to the

treatment center for examination and diagnosis.     Two qualified
                                                                    3


examiners1 submitted reports, opining that the defendant is an

SDP within the meaning of G. L. c. 123A, § 1.    The trial on the

Commonwealth's petition commenced in September, 2015.

     2.   The trial.   Through records admitted at trial pursuant

to G. L. c. 123A, § 14 (c), and the testimony of the two

qualified examiners, the Commonwealth presented evidence from

which the jury could have found beyond a reasonable doubt the

statutory elements necessary for the defendant's commitment as

an SDP.   This evidence detailed the defendant's prior

convictions of sexual offenses and included expert opinion

testimony on two issues:    (1) whether the defendant suffered

from a mental abnormality or personality disorder that

predisposes him to commit sexual offenses; and (2) whether the

defendant likely would reoffend because of that mental condition

if not confined to a secure facility.    The defendant offered no

evidence at trial.

     The jury could have found the following facts.      The

defendant was convicted of two different sexual offenses as

defined in G. L. c. 123A, § 1.    In 1978, when the defendant was

     1
       "A qualified examiner is either (1) a physician who is
licensed by the Commonwealth and certified or eligible to be
certified in psychiatry by the American Board of Psychiatry and
Neurology; or (2) a psychologist who is licensed by the
Commonwealth. In all cases, a qualified examiner is designated
as such by the Department of Correction and has at least two
years of experience with diagnosis or treatment of sexually
aggressive offenders." Green, petitioner, 475 Mass. 624, 625
n.3 (2016), citing G. L. c. 123A, § 1.
                                                                     4


seventeen years of age, he sexually assaulted a nine year old

girl.   After first going down a bike path with the victim's

eleven year old sister, the defendant asked the victim if she

too wanted to go down the bike path.     As they went down the

path, the defendant pushed the victim down to the ground, got on

top of her, and, over the victim's clothing, fondled her breasts

and genital area.

    After the victim began to scream for her sister, the

defendant let her get up from the ground and warned if she told

anyone, she would be killed.   Thereafter, the defendant was

charged and convicted of indecent assault and battery on a child

under the age of fourteen.   Following conviction, the defendant

was sentenced to a term of probation for three years.

    Approximately twelve years later, the defendant was

convicted of aggravated rape and rape.    The convictions stemmed

from the rape of a forty-nine year old woman, who was the mother

of a woman the defendant had dated previously.     The defendant

went to the victim's home and asked to speak with her daughter,

who was not home.   Following a conversation with the victim, the

defendant asked if he could use her restroom.     He reported to

the victim that the toilet was not functioning.    When the victim

went to investigate, the defendant attacked her.     Putting his

hands around her throat, the defendant pulled the victim down to

the floor and sexually assaulted her vaginally and anally.
                                                                   5


After sexually assaulting the victim, the defendant physically

assaulted her with an iron and a knife.   The victim sustained a

broken jaw, a fractured skull, and a cut on her neck.

    Based on the sexual and physical assault, the defendant was

convicted of several rape charges, including one count of

aggravated rape and two counts of rape.   As a result of the

aggravated rape conviction, the judge sentenced the defendant to

imprisonment for a term of from fifteen to twenty-five years.

    At trial, the Commonwealth presented evidence from the two

qualified examiners, Gregg A. Belle, Ph.D., and Dr. Katrin

Rouse-Weir, Ed.D.   Both qualified examiners interviewed and

diagnosed the defendant with ASPD, and agreed that this

particular mental condition constituted a personality disorder

as defined by G. L. c. 123A, § 1.   In support of the diagnosis,

the examiners considered a range of factors, including the

defendant's disciplinary history while incarcerated, his history

of sex offender treatment, and statements the defendant made in

other evaluations regarding his sexual offenses.   Dr. Belle

characterized the defendant's incarceration and disciplinary

history as "somewhat difficult."    Specifically, the defendant

received approximately fifty-three disciplinary reports alleging

violations of prison rules, some of which resulted from

threatening and sexually explicit statements the defendant

allegedly made to female staff.    Another disciplinary report
                                                                    6


resulted from an incident where the defendant masturbated in

front of a female correctional officer.     The defendant's

sexually threatening and explicit behavior was a factor in his

transfer to a higher security facility.

    Although the defendant participated in sex offender

treatment, he was terminated from the treatment program on

several occasions.   He was terminated on one occasion because of

sexually explicit letters he wrote to female staff.     The

defendant also made sexually threatening statements regarding

his plans on release, warning that he was going to commit a rape

when he was released from prison and identifying the female

staff member that he planned to rape.     In 2006, the defendant

was again terminated from the treatment program for engaging in

consensual oral sex with a wheel-chair bound inmate.

    Considering the defendant's criminal sexual history

together with the nature of the numerous violations of

institutional rules, Belle explained that this conduct

exemplified "one of the hallmark traits of an antisocial

personality disorder."   Belle also concluded that the defendant

has demonstrated, "over a period of time, a persistent pattern

. . . [of] an inability to control his sexual impulses."

According to Belle, the defendant's continued engagement in a

"pervasive pattern" of sexually threatening behavior while

incarcerated, "speak[s] to the statutorily defined personality
                                                                   7


disorder" that he characterized as ASPD.   Similarly, Dr. Rouse-

Weir noted that the statements made to female staff "involved

sexual aggression, which is relevant . . . with regard to his

risk."   Rouse-Weir went on to note that the defendant's

aggression, irritability, lack of remorse, and lack of regard

for the rights of others had "a sexual element."    She added that

the continued demonstration of aggression with sexualized

elements directed toward female staff exclusively was a "chronic

characteristic associated with [his ASPD]."

     Belle and Rouse-Weir also opined on the significance of the

defendant's score on the Static-99R risk assessment tool.2   The

Static-99R risk analysis completed by Belle yielded a score of

four, which Belle opined translated to a "moderate-high" risk to

sexually reoffend.   Belle also explained that a score of four

corresponded to an eleven per cent risk that the defendant would

reoffend sexually over a five-year period.    Rouse-Weir, on the

other hand, opined that the defendant's Static-99R risk analysis

yielded a score of six, which falls within the "high-risk

category" as defined by the Static-99R.


     2
       The Static-99R is an actuarial tool, designed to predict
the recidivism risk of sexual offenses in adult male sex
offenders who have been convicted of at least one sexual
offense. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 636 n.33 (2011).
Initially developed in 1999, the Static-99 has since been
revised and renamed "Static-99R."
                                                                      8


     Discussion.   The defendant challenges the commitment,

arguing that commitment as an SDP based on an ASPD diagnosis

violates substantive due process and that the erroneous

admission of expert opinion testimony on the likelihood of

reoffense and the scores on the Static-99R predicting a

"moderate high" or "high" risk of reoffense usurped the jury's

role as fact finder.   We address both arguments in turn.

     1.   Antisocial personality disorder.    Raising the issue for

the first time on appeal,3 the defendant claims that commitment

as an SDP based on an ASPD diagnosis as the predicate mental

condition violates substantive due process.    Borrowing from the

United States Supreme Court's analysis of a civil commitment

statute in Kansas v. Crane, 534 U.S. 407 (2002), the defendant

contends that the use of the ASPD diagnosis sweeps too broadly,

permitting what amounts to unconstitutional preventive

detention.   As the argument goes, the ASPD diagnosis fails to

distinguish "the dangerous sexual offender whose serious mental

illness, abnormality, or disorder subjects him to civil

commitment from the dangerous but typical recidivist convicted

     3
       Although the defendant raised this argument in a motion in
limine, defense counsel withdrew the motion prior to the start
of trial. Also, the defendant did not object to the antisocial
personality disorder (ASPD) diagnosis at trial or move for a
directed verdict. Thus, the issue is waived. However, we
address the issue to determine whether the admission of the
evidence created a substantial risk of a miscarriage of justice.
See Commonwealth v. Fay, 467 Mass. 574, 583 n.9, cert denied,
135 S. Ct. 150 (2014).
                                                                     9


in an ordinary criminal case."    Id. at 413.   We reject the

defendant's argument as it misapprehends the evidentiary weight

to be accorded to an ASPD diagnosis in the sexual dangerousness

calculus.

     The definition of an SDP in G. L. c. 123A, § 1, makes it

abundantly clear that an ASPD diagnosis, standing alone, does

not justify commitment as an SDP.   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."4    A "personality

disorder" is defined as "a congenital or acquired physical or

mental condition that results in a general lack of power to

control sexual impulses."   Id.   Although we have not been called

on to parse the definition of "personality disorder," the

Appeals Court has correctly recognized ASPD as a type of

personality disorder, which in conjunction with other relevant

evidence, may justify commitment as an SDP.     See, e.g., Souza,

petitioner, 87 Mass. App. Ct. 162, 169 (2015) (noting that ASPD

diagnosis is "adequate to satisfy the definitional requirements

of an SDP in G. L. c. 123A, § 1"); Commonwealth v. Husband, 82

Mass. App. Ct. 1, 5 (2012) (same); Commonwealth v. Mazzarino, 81


     4
       The Commonwealth does not contend that the defendant
suffered from a "mental abnormality."
                                                                   10


Mass. App. Ct. 358, 369 (2012) (commitment based on ASPD

diagnosis "combined with other evidence" suggesting ASPD made

respondent likely to reoffend sexually if not confined does not

violate due process protections under Fourteenth Amendment to

United States Constitution or art. 12 of Massachusetts

Declaration of Rights).

     Accordingly, a "personality disorder" as defined in G. L.

c. 123A, § 1, is relevant to the sexual dangerousness calculus

only if the "condition . . . results in a general lack of power

to control sexual impulses."     Contrary to the defendant's

assertion, our law does not permit the indefinite and

indiscriminate commitment of persons solely because of an ASPD

diagnosis.   The diagnosis requires an individualized review, and

it is relevant only if it is predictive of a lack of control

over the proclivity for criminal conduct and the conduct is

likely to be sexual in nature.    Not all offenders diagnosed as

having ASPD can be so categorized.    Instead, our cases have held

true to the underlying statutory purpose to subject only those

persons who because of a prescribed mental condition cannot

control their impulses to commit a sexual crime to the

possibility of civil commitment as an SDP.5


     5
       The defendant urges this court to follow the reasoning in
Matter of State of N.Y. v. Donald DD, 24 N.Y.3d 174, 190 (2014)
(ASPD diagnosis alone absent diagnosis of any other "condition,
disease or disorder alleged to constitute a mental abnormality"
                                                                  11


    Here, two qualified examiners opined that the defendant

suffered from ASPD and determined that because of this condition

the defendant was likely to engage in sexual offenses if not

confined in a secure facility.   The qualified examiners did not

base their opinion on this diagnosis alone.   Rather, they also

relied on evidence, separate and apart from the defendant's

criminal history, suggesting that ASPD made the defendant

"likely to engage in sexual offenses" if not civilly committed.

G. L. c. 123A, § 1.   Belle predicated his conclusion that the

defendant lacked the ability to control his sexual impulses not

only on the defendant's criminal history, but also on his

incarceration history.   Belle noted that he considered behaviors

in which the defendant has engaged as constituting a "persistent

pattern in which he has shown an inability to control his sexual

impulses."   While incarcerated, the defendant had a history of

making "physically threatening," "sexually assaulting," and

sexually explicit statements directed toward female staff




is insufficient to meet test set out by Supreme Court in Kansas
v. Crane, 534 U.S. 407, 413 [2002]). However, we are not
persuaded by the court's analysis, which, as the dissent in that
case points out, concludes that because ASPD does not, in every
case, predispose the individual to commit sex crimes, the
diagnosis can never satisfy the definitional requirements of the
statute. Id. at 194 (Graffeo, J., dissenting). As we conclude
here, G. L. c. 123A requires a determination on a case-by-case
basis whether in a given case the ASPD diagnosis meets the
definition of an SDP.
                                                                   12


members, including threatening to break a woman's leg and

threatening to rape another.

     Similarly, Rouse-Weir based her conclusion on the

defendant's criminal history as well as his incarceration

history, including his participation in sex offender treatment

programs, and his disciplinary history.   Rouse-Weir noted that

the defendant participated in, but failed to successfully

complete, sex offender treatment, and received fifty-three

disciplinary reports and associated sanctions.   With respect to

disciplinary reports, Rouse-Weir, like Belle, pointed out that

during the initial period of the defendant's incarceration, his

disciplinary reports related to the use of threatening language

and sexually aggressive statements toward female staff, which

sometimes resulted in the defendant being transferred to higher

security facilities.

     Both Belle and Rouse-Weir conceded that ASPD affects a

large percentage of the ordinary prison population,6 and that the

disorder tends to "burn out or mitigate" once an individual

reaches his forties.   However, Rouse-Weir explained that unlike


     6
       On cross-examination, Belle affirmed ASPD is prevalent in
fifty to seventy per cent of the general prison population.
Similarly, the United States Supreme Court has noted that an
estimated forty to sixty per cent of the male prison population
is diagnosable with ASPD. See Crane, 534 U.S. at 412, citing
Moran, The Epidemiology of Antisocial Personality Disorder, 34
Soc. Psychiatry & Psychiatric Epidemiology 231, 234 (1999).
                                                                   13


other individuals diagnosed with ASPD, the defendant's lack of

remorse and his lack of regard for others' rights "ha[d] a

sexual element."   Moreover, although Belle determined that the

defendant did not meet the criteria for a paraphilic disorder,7 a

factor highly relevant to the SDP calculus, Rouse-Weir opined

that the defendant showed "a deviant sexual interest."    This

"deviant sexual interest," combined with the defendant's ASPD,

where it resulted in an inability to control sexual impulses,

was a sufficient predicate for sexual dangerousness.

     2.   Qualified examiner testimony.   Prior to trial, the

defendant filed motions in limine to exclude expert opinion

testimony regarding his likelihood of reoffense and to preclude

the admission of "subjective, value judgment labels," for the

scores derived from the Static-99R.   Both motions were denied.

He argues on appeal that the judge erred in denying the motions

because the qualified examiner testimony on both issues

improperly invaded the province of the jury.

     a.   Expert testimony regarding likelihood of reoffense.     To

commit a person as an SDP, the jury must determine that the

     7
       A paraphilic disorder is characterized as recurrent,
intense sexually arousing fantasies, sexual urges, or behaviors
generally involving (1) nonhuman objects, (2) the suffering or
humiliation of oneself or one's partner, or (3) children or
other nonconsenting persons that occur over a period of at least
six months. Paraphilic disorders as defined in the Diagnostic
and Statistical Manual of Mental Disorders, include, but are not
limited to, exhibitionistic disorder, fetishistic disorder, and
pedophilic disorder.
                                                                   14


person has been "convicted of a sexual offense, suffers from a

mental abnormality or personality disorder that renders him a

menace to the health and safety of others, and is likely to

engage in sexual offenses if not confined."    Commonwealth v.

Fay, 467 Mass. 574, 580, cert. denied, 135 S. Ct. 150 (2014),

citing G. L. c. 123A, §§ 1, 14.   The defendant correctly

concedes that our law allows for expert opinion testimony to

"touch on an ultimate issue of the case [where] that testimony

aids the jury in reaching a decision."    Commonwealth v.

MacDonald, 459 Mass. 148, 163 (2011).    See Mass. G. Evid. § 704

(2017).   Nevertheless, he contends that the qualified examiners'

testimony was improper because it would not aid the jury in

determining whether the mental abnormality or personality

disorder is likely to cause the individual to reoffend unless

confined.   We disagree.

    A qualified examiner's opinion testimony is "the essential

basis for a finding of sexual dangerousness."    Green,

petitioner, 475 Mass. 624, 630 (2016).    In an SDP trial, the

jury's task involves assessing the risk of reoffending, which in

turn involves a complex balance 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."     Commonwealth v. Boucher,

438 Mass. 274, 276 (2002).   "Because the trier of fact in G. L.
                                                                  15


c. 123A proceedings must decide '[w]hether a person suffers from

a mental abnormality or personality defect, as well as the

predictive behavioral question of the likelihood that a person

suffering from such a condition will commit a sexual offense,'

and because these are 'matters beyond the range of ordinary

experience,' expert evidence is required in order to commit a

person to the treatment center or to keep a person confined

there."   Johnstone, petitioner, 453 Mass. 544, 549-550 (2009),

quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 483 n.12

(2003).   See Commonwealth v. Bruno, 432 Mass. 489, 511 (2000).

    Thus, the expert's role in opining on the ultimate issue to

be decided by the jury is settled in our jurisprudence.    The

judge did not err in admitting qualified examiner testimony on

the ultimate issue.   Indeed, given the centrality of expert

opinion testimony to the SDP adjudication, it would have been an

error of law for the trial judge to exclude that testimony.

    b.    Static-99R risk category labels.   The defendant argues

that the admission of the qualified examiners' testimony

categorizing his Static-99R score as "moderate-high" and "high"

also invaded the jury's province, and thus constituted error.

He contends that the Static-99R categories represent a "wholly

subjective" assessment and create a risk that the jury will

shift responsibility for determining the likelihood of reoffense

to the qualified examiners.   We conclude that the risk
                                                                     16


categories lack probative value in the sexual dangerousness

calculus and should not be admitted at trial.

    The Static-99R measures ten static risk factors that have

been shown to increase one's risk for sexual recidivism, and

adjusts the numerical score upwards or downwards depending on

risk factors that the qualified examiner determines are

significant in the particular individual's case.     See Doe, Sex

Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,

459 Mass. 603, 636 n.33 (2011).     Each numeric score corresponds

to a percentage reflecting the risk of sexual reoffense and a

risk category label ("low," "low-moderate," "moderate-high," and

"high").    See Hanson, Babchishin, Helmus, Thornton, & Phenix,

Communicating the Results of Criterion Referenced Prediction

Measures:   Risk Categories for the Static-99R and Static-2002R

Sexual Offender Risk Assessment Tools, 29 Psychological

Assessment 582, 584 (2017).

    As a threshold matter, the Static-99R is itself a limited

tool; it estimates only the "the relative risk of sexual

recidivism based on commonly available demographic and criminal

history information."    Id.   It does not identify the likelihood

of sexual recidivism for a specific individual.     As Belle

explained in his testimony, the Static-99R results were not

specific to the defendant, and "[o]ne of the cautions about the
                                                                  17


Static-99R is that it is looking at groups of individuals that

may or may not be similar to [the defendant]."

     While the combination of the Static-99R raw score and the

corresponding percentage reflecting the risk of sexual reoffense

provide "precise, numeric estimates of recidivism risk," the

category labels do not.    Id. at 583.   The test's developers have

acknowledged that the meaning of risk category labels is often

unclear.   "There is only a loose association in natural language

between verbal labels for likelihood [e.g., 'low,' 'low-

moderate,' 'moderate-high,' and 'high'] . . . and numeric

probabilities."   Id.   Further, test developers have conceded

that the lack of clarity is exacerbated by the absence of

accepted standards or metrics connecting the risk category

labels to "specific meanings, such as recidivism rates,

psychological features, or expected treatment needs."8    Id.

Consequently, "substantial variation" exists among sex offenders

ascribed identical risk category labels.    Id.




     8
       To resolve the shortcomings of the Static-99R risk
category labels, test developers have created new risk category
labels. We take no position on the admissibility of those
labels. See Hanson, Babchishin, Helmus, Thornton, & Phenix,
Communicating the Results of Criterion Referenced Prediction
Measures: Risk Categories for the Static-99R and Static-2002R
Sexual Offender Risk Assessment Tools, 29 Psychological
Assessment 582, 592 (2017) (new risk categories "have
sufficiently improved conceptual coherence and have sufficient
empirical support to replace the original categories").
                                                                    18


     Given this view of the risk category labels by the experts

who develop and use them, we are not persuaded that such

testimony aids the jury in determining sexual dangerousness.

Cf. Simon v. Solomon, 385 Mass. 91, 105 (1982) ("expert

testimony on matters within the witness's field of expertise is

admissible whenever it will aid the jury in reaching a

decision").   Accordingly, we conclude that the admission of

qualified examiners' testimony characterizing the defendant's

Static-99R score as "moderate-high" or "high" was error.

    The defendant filed a pretrial motion to exclude the

Static-99R risk category labels, which the judge denied.    Thus,

we must determine whether the improper admission of Static-99R

risk category labels was nonprejudicial, that is "whether 'the

error did not influence the jury, or had but very slight

effect."    Commonwealth v. Christian, 430 Mass. 552, 563 (2000),

quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

See Commonwealth v. Grady, 474 Mass. 715, 718, 721 (2016).     We

conclude that that the erroneous admission of testimony

regarding the Static-99R risk category labels does not warrant

reversal.

    The expert testimony regarding the defendant's Static-99R

risk category was appropriately limited; it was presented as

only one of many factors in the SDP calculus.   For example,

Rouse-Weir explained that the Static-99R is an actuarial tool
                                                                   19


only, and that examiners have agreed to use the actuarial

instrument "in a limited fashion."    Also as explained to the

jury, the qualified examiners considered several "dynamic

factors,"9 which the Static-99R test does not take into account.

For example, Belle and Rouse-Weir considered matters such as

substance abuse history, "deviant sexual interests," "cognitive

distortions," and "intimacy deficits," all of which are relevant

to sexual dangerousness.    In addition, the qualified examiners

included in the sexual dangerousness calculus the defendant's

family history, educational and work background, incarceration

records, treatment history, and release plans.    Given the

limited nature of the use of the Static-99R in the qualified

examiners' over-all risk assessment analysis of the defendant,

we conclude that the admission of testimony regarding the risk

category labels was nonprejudicial.

     Recognizing that our holding as to risk category labels

modifies the manner in which the Static-99R may be used in SDP

proceedings, we take this opportunity to clarify that our

holding is limited.    Both the Static-99R score and the

corresponding percentage reflecting the risk of sexual offense

in qualified examiners' testimony continue to be admissible.

Our holding makes inadmissible the risk category labels only, as


     9
         Dynamic risk factors are "more fluid" and can change over
time.
                                                                  20


the risk category labels, unlike the Static-99R score and the

corresponding percentage reflecting the risk of sexual

reoffense, provide little aid to the jury in rendering its

decision.

    Conclusion.    Under G. L. c. 123A, an ASPD diagnosis is

adequate to satisfy the definitional requirements of an SDP

where the Commonwealth also proves that, as a result of the

ASPD, the individual is likely to engage in sexual offenses if

not confined, and in this case there was no error requiring

reversal.   Therefore, we affirm the judgment and order for the

defendant's civil commitment as an SDP.

                                   So ordered.
