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12-P-1999                                             Appeals Court

                 COMMONWEALTH   vs.   KEVIN F. CAHOON.


                            No. 12-P-1999.

     Barnstable.        February 3, 2014. - September 10, 2014.


            Present:     Cohen, Hines, & Maldonado, JJ.1

Sex Offender. Constitutional Law, Sex offender, Self-
     incrimination. Evidence, Sex offender.



     Civil action commenced in the Superior Court Department on
June 17, 2011.

     The case was tried before Robert C. Rufo, J.


     Joseph M. Kenneally for the defendant.
     Julia K. Holler, Assistant District Attorney, for the
Commonwealth.


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

defendant was found to be a sexually dangerous person (SDP),

pursuant to G. L. c. 123A, § 12.      The defendant's appeal


     1
       Justice Hines 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.
                                                                     2


presents two issues:   (1) whether his motion for a directed

verdict should have been allowed on the ground that the

Commonwealth failed to establish that he is likely to reoffend

sexually; and (2) whether the admission (without objection) of

evidence that he terminated his participation in sex offender

treatment entitles him to a new trial.   We affirm.

     Background.   On January 22, 1992, the defendant was

convicted of one count of rape of a child and one count of

indecent assault and battery on a child under fourteen years of

age, arising from the molestation of his girlfriend's three and

one-half year old daughter.2   Eight years into his sentence, on

March 9, 2000, the defendant signed a waiver of confidentiality

and began participating in sex offender treatment.    He completed




     2
       On December 27, 1994, this court affirmed the defendant's
convictions in an unpublished memorandum and order pursuant to
rule 1:28. Commonwealth v. Cahoon, 37 Mass. App. Ct. 1126
(1994). In our decision we briefly summarized the case as
follows: "The victim testified that the defendant 'did bad
stuff' to her, and she described the various acts which the
defendant performed, including placing his penis in the victim's
mouth and her 'private,' as well as in her 'butt.' Several
witnesses testified to fresh complaints made by the victim.
Medical evidence at trial included a description of a healed
rectal scar which was termed 'very, very unusual,' corroborating
the victim's testimony. The defendant's theory [was] that the
victim had been abused by other persons living from time to time
in the household."
                                                                   3


phases one and two; however, on June 1, 2001, he refused further

treatment and therefore did not complete phases three and four.3

     On the issue of sexual dangerousness, the Commonwealth

presented two expert witnesses, Dr. Carol Feldman, who testified

as a forensic psychologist retained by the Commonwealth, and Dr.

Michael Henry, who was assigned as a qualified examiner in the

case.    Dr. Feldman testified that the defendant "dropped out"

and "refused" further treatment; Dr. Henry also testified that

that the defendant "quit" and "dropped out."    Both experts

linked the failure of the defendant to complete treatment to his

risk of reoffense.

     The defendant presented four experts:     Dr. Leonard Bard,

Dr. Joseph Plaud, Dr. Katrin Rouse-Weir, and Dr. Michael Murphy,

who was the other qualified examiner in the case.     These experts

also commented upon the limited extent of the defendant's

treatment, and one of them, Dr. Rouse-Weir, testified that

"dropping out" of treatment is a factor that increased the


     3
       As described at trial, the treatment program in question
has four phases. Phases one through three are "pretreatment"
phases where the individual is introduced to basic concepts and
terminology, is required to complete a workbook, attends and
participates in group meetings, presents his version of the
governing offense, and participates in an intake assessment.
Phase four is "core treatment," where the individual receives
further assessment, completes a relapse prevention plan,
prepares a written release plan, and undergoes thorough
evaluation of his progress on a variety of issues such as
accountability, drug and substance abuse, anger and stress
management, and victim empathy.
                                                                      4


defendant's risk of recidivism, albeit not to the extent that it

affected her opinion that he was not sexually dangerous.

     Discussion.   1.   Motion for directed verdict.   In assessing

the sufficiency of the evidence in an SDP case, we review the

evidence in the light most favorable to the Commonwealth.     See

Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J.

concurring), citing Commonwealth v. Boyer, 61 Mass. App. Ct.

582, 589 (2004).   See also Commonwealth v. Latimore, 378 Mass.

671, 677 (1979).   To establish that the defendant is an SDP, the

Commonwealth was required to prove that (1) the defendant was

convicted of a sexual offense; (2) the defendant suffers from a

mental abnormality or personality disorder; and (3) the

defendant's mental abnormality or personality disorder makes him

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

facility.   See G. L. c. 123A, § 1.

     The defendant's argument relates to the third element,

specifically, whether he is likely to engage in sexual offenses.4


     4
       There was ample evidence (and it was not disputed) that
the defendant was convicted of the sexual offenses of rape and
indecent assault and battery on a child. The second element was
met through the testimony of the Commonwealth's experts that the
defendant fit the criteria for having antisocial personality
disorder -- an opinion also shared by three of the defendant's
experts. Dr. Feldman also opined that the defendant suffers
from nonexclusive pedophilia. Dr. Henry did not rule out
pedophilia but would not adopt that diagnosis in the absence of
additional data and further examination of the defendant, who
had not been forthcoming when interviewed.
                                                                   5


While acknowledging that he may have an increased risk of future

criminal behavior as shown by his lengthy record of nonsexual

offenses both before and after he sexually abused the victim,5

the defendant contends that the evidence was insufficient to

show that he is at risk of reoffending in a sexual manner.

There is no merit to this argument, however, because the

testimony of Drs. Feldman and Henry was sufficient to permit the

jury to find beyond a reasonable doubt that the defendant was

likely to engage in additional sexual offenses.

     Briefly summarized, Dr. Feldman opined that the defendant

was likely to reoffend sexually based upon a number of

considerations, including the following:   the defendant

manifested deviant arousal, he did not complete sex offender

therapy, he would not be on probation if released, he was of a

relatively young age (forty-eight at the time of trial), and he

scored a four on a Static 99 assessment, which put him in the

moderate to high risk category of likelihood to reoffend

sexually.   Dr. Henry also found that the defendant fell into the

     5
       The defendant's criminal offending began when he was ten
years old. Subsequently, he was convicted of more than twenty
crimes involving a wide range of offenses. As the defendant's
brief acknowledges, "it is unlikely that a year went by without
[the defendant] being called into court to answer to criminal
charges." In addition to the governing offenses, the defendant
was charged as a juvenile with one other sexual offense, an
indecent assault and battery on a child under fourteen, which
the defendant described as arising from an incident in which he
snapped a classmate's brassiere. The complaint in that case was
dismissed eight months after arraignment.
                                                                   6


moderate to high risk category when applying the Static 99 and,

when comparing the Static 99 score to dynamic risk factors such

as his age, his not having completed sex offender treatment, his

lengthy criminal history, and the persistence of his antisocial

character orientation, formed the opinion that the defendant was

at a high risk for reoffending sexually.

    On the basis of this expert evidence, the Commonwealth

established that the defendant was likely to engage in sexual

offenses.   The defendant's motion for a directed verdict

therefore was properly denied.

    2.   Termination of treatment.   Although the defendant did

not object at trial, he now contends that the jury should not

have heard evidence that he "dropped out" of treatment.     Because

the claim was not preserved below, we employ the substantial

risk of a miscarriage of justice standard.   Commonwealth v.

Lynch, 70 Mass. App. Ct. 22, 28 (2007).

    The defendant bases his argument upon Commonwealth v. Hunt,

462 Mass. 807, 819 (2012), in which the Supreme Judicial Court

held that a defendant adjudicated sexually dangerous was

entitled to a new trial because of multiple errors, including

the introduction, over the defendant's objection, of evidence

that he had refused sex offender treatment conditioned upon a

waiver of confidentiality.   As a threshold matter, it is

questionable whether Hunt, which was decided six months after
                                                                   7


the defendant's trial, should be applied retroactively to the

defendant's unpreserved claim, given that Hunt was decided on

common-law evidentiary grounds and not constitutional grounds.

See id. at 815-816.   See generally Commonwealth v. Dagley, 442

Mass. 713, 721 n.10 (2004).   We need not confront the issue,

however, because we are unpersuaded that the rationale of Hunt

applies in the circumstances presented here.

    As explained in Hunt, evidence that a defendant in an SDP

proceeding did not receive treatment is relevant, admissible,

and not unfairly prejudicial when introduced in conjunction with

expert opinion, supported by empirical evidence, that those who

undergo or complete sex offender treatment are less likely to

reoffend sexually than those who do not.   Hunt, supra at 818.

Accordingly, to the extent that the jury in the present case

learned that the defendant did not receive a complete course of

treatment and therefore had an increased risk of recidivism,

their receipt of such evidence was entirely proper.

    Hunt also explained, however, that evidence that a

defendant in an SDP proceeding refused treatment conditioned on

a waiver of confidentiality is inherently more prejudicial than

probative and, hence, inadmissible, because the jury may draw

the unfair inference that the defendant did not wish to be

treated.   Id. at 819.   The inference is unfair because waiving

confidentiality raises legitimate concerns that statements made
                                                                   8


during the course of treatment may be used adversely, i.e., to

prosecute the defendant for past sexual crimes, to deny him

parole, or to commit him as an SDP.   Accordingly, "[w]here sex

offender treatment is conditioned on a waiver of

confidentiality, refusal of treatment alone is insufficient to

support an inference that the prisoner does not want to be

treated."   Ibid.

    The present case is distinguishable from Hunt for the

obvious reason that, here, the defendant waived confidentiality

and participated in the early phases of treatment.   But even if

we were to assume that the concerns animating Hunt might, under

different circumstances, apply by analogy to the introduction of

evidence of a defendant's refusal to continue treatment after an

initial waiver of confidentiality, those concerns are not

implicated here.

    The evidence at trial was that the defendant had given two

different explanations for refusing further treatment.   When he

ended his participation, he told his treatment group that he was

leaving because he had gotten his sentence reduced; in fact, his

motion to revise or revoke had just been denied.   Later, when

being evaluated by the qualified examiners for purposes of the

SDP proceedings, the defendant stated that he dropped out

because he was being asked to acknowledge the full extent of the
                                                                    9


sexual abuse reported by the victim, including certain

accusations that he disputed.6

     The first explanation has no logical connection to the

avoidance of adverse consequences of disclosure.   Furthermore,

the timing of the defendant's refusal coupled with his untrue

statement to his treatment group gives rise to a reasonable (and

not unfair) inference that when he failed to obtain a reduction

in his sentence, he no longer saw value in continuing treatment

and did not wish to receive it.   The second explanation also

lacks any connection to the avoidance of the adverse use of

information disclosed during treatment.   The accusations

disputed by the defendant were fully aired in the defendant's

criminal case; as such, they already were known and available to

be used against him in future proceedings, whether he

acknowledged them as true.

     In sum, the rationale of Hunt does not apply to the receipt

of evidence that the defendant dropped out of treatment.    There




     6
       The defendant admitted to a single incident where, with
the assistance of the victim's mother, he placed his penis in
the victim's mouth, and then rubbed it against her vagina and
ejaculated into her hand. He disputed the victim's reports of
multiple episodes of abuse and denied that he had ever
penetrated her vagina or anus.
                                                               10


was no error and, hence, no substantial risk of a miscarriage of

justice.7

                                   Judgment affirmed.




     7
       To the extent that the defendant implicitly suggests that
it was error to admit evidence that he denied some of the
victim's accusations, the argument fails if only because the
denial evidence could not have resulted in prejudice. Drs.
Feldman, Murphy, Plaud, and Bard each testified to the effect
that denial alone was not a significant factor as to recidivism
and the defendant's sexual dangerousness. Dr. Rouse-Weir did
not offer an opinion either way. Dr. Henry declined to agree
that the defendant's denial was not associated with an increased
risk of recidivism, but only because he was unaware of any
research regarding partial, as distinct from complete denials.
On this state of the evidence, we may be confident that the jury
would not have concluded that the defendant's partial denial of
his crimes elevated his risk of recidivism. For this reason, if
no other, the denial evidence created no substantial risk of a
miscarriage of justice.
