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13-P-818                                                   Appeals Court

                    COMMONWEALTH   vs.    JACOB E. SHIN.


                              No. 13-P-818.

         Suffolk.       April 14, 2014. - September 25, 2014.

               Present:    Green, Hanlon, & Hines, JJ.1


  Indecent Assault and Battery.          Mental Impairment.   Insanity.



     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on January 24, 2011.

     The case was heard by Annette Forde, J.


     Katherine Godin for the defendant.
     Zachary M. Hillman, Assistant District Attorney (Neil J.
Flynn, Jr., Assistant District Attorney, with him) for the
Commonwealth.


     HANLON, J.     After a jury-waived trial, the defendant was

convicted of indecent assault and battery on a person fourteen




     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


years of age or older.2    He argues that his motion for a required

finding of not guilty should have been allowed because there was

insufficient evidence to prove that he was criminally

responsible at the time of the crime.    In addition, he argues

that the judge employed the wrong analysis in determining that

he was criminally responsible.    We agree that the analysis was

flawed and therefore reverse.

     Background.   At approximately five o'clock in the evening

on January 20, 2011, the victim boarded a Massachusetts Bay

Transportation Authority (MBTA) Green Line subway train at Park

Street station, heading for Cleveland Circle.     It was rush hour

and the train was crowded; she stood with her back against the

wall by the "accordion bend" in the middle of the train in an

attempt to allow space for other passengers.

     At the Copley stop, many people entered the train and it

became very crowded; the defendant boarded with the other

passengers and he went to stand "very close" to the victim, so

close that he made her uncomfortable, "and he was touching [her]

arm on [her] left side."    After the train left Copley and before

the next stop (Hynes Convention Center), the defendant lifted

his hand and touched the victim between her legs on her upper

thigh, within "two inches" of her genital area.    She testified

     2
       The defendant also was charged with failure to register as
a sex offender (count II); that count was dismissed at the
request of the Commonwealth at trial.
                                                                   3


that "[i]t was very high on [her] leg."   As soon as the

defendant put his hand on the victim's leg, she lifted up her

left arm and, pushing him in the center of his chest, "said

watch your hands.    [She] pushed him as far as [she] could push

him away from [her]."

     The victim got off the train at the Hynes Convention Center

stop because she "wanted to get out of the enclosed train car";

the defendant also got off the train at that stop, and the

victim watched from the platform as he passed through the fare

gate and climbed the stairs toward the station exit.    She then

felt safe enough to get back on the next train and continue to

her intended stop.

     MBTA transit officers obtained videotape footage from the

Hynes Convention Center station; the victim identified the

defendant on the tape and the officers then obtained "fare gate

information" for the time shown on the videotape.   They

determined the defendant's name and home address from his

"transportation access pass" or "Charlie" card.3

     The following day, three transit officers went to the

defendant's home and spoke with him.    At their request, he

provided his Charlie card and, "immediately" after checking the

numbers on the card, the officers gave the defendant a Miranda

     3
       The videotape showed the defendant leaving the Hynes
Convention Center station, and then coming back into the station
twenty minutes later.
                                                                   4


warning.   The defendant then asked for privacy because "[h]e did

not want the other people in the home to know what [they] were

talking about"; as a result, the defendant and all three

officers moved into a room adjacent to the entrance door to

continue their conversation.   The defendant later agreed to

accompany the officers back to the MBTA transit police

headquarters; while traveling in the officers' unmarked car, the

defendant stated that "he did have a problem" relating to the

incident that they were investigating, and that he had

medication but was not presently taking it.

     MBTA transit police Lieutenant Mark Gillespie testified

that, at some point during his conversation with the defendant,

the defendant "mentioned the word lawyer" and the officers did

not ask any more questions about the incident.   Gillespie also

testified that the defendant had "two distinct changes in his

behavior" while the officers were at the defendant's home and

then while being transported to headquarters.4

     At the jury-waived trial, the defendant's primary defense

was lack of criminal responsibility, specifically that he was


     4
       When the officers first arrived, the defendant was very
relaxed, quiet, cooperative, answering questions without
hesitation and "welcoming [the officers] into [his] home."
After he was placed in the back of the unmarked police car and
on the way to police headquarters, the defendant was more
reserved and thoughtful; his "answers were less forthcoming" and
"seemed to be calculated." Gillespie's perception of the
defendant was that "he knew he was in trouble."
                                                                     5


unable to "conform [his] conduct to the requirements of the

law."    Commonwealth v. Berry, 457 Mass. 602, 612 (2010).   His

sole witness was Dr. Susan Lewis, a forensic psychologist at the

Worcester Division of the District Court Department.5    Dr. Lewis

had seen the defendant first in 2005 for an "aid in sentencing

examination" at the Erich Lindemann Mental Health Center

(Lindemann Center).    See G. L. c. 123, § 15(e).   At that time,

the defendant had been charged with indecent assault and battery

on a person fourteen years old or older; "he was experiencing

auditory hallucinations," along with "grandiosity in terms of

the stories he was telling at that time."6   Dr. Lewis diagnosed

him in 2005 with schizophrenia.    In connection with the

proceedings in this case, she also reviewed diagnoses from other

doctors who had seen the defendant between 2005 and her

evaluation in 2011, and testified that "there's no dispute that

he's been suffering from schizophrenia."7


     5
       Dr. Lewis's September 20, 2012, criminal responsibility
evaluation report was admitted at trial as exhibit 3 (report).
     6
       As to the auditory hallucinations, Dr. Lewis testified
that "[the defendant] at times, believes that the government is
speaking to him. At other times, he believes that the voices
are telling him that he has a particular mission on this earth.
At other times, the voices are somewhat paranoid. He believes
that he sees something, for example, on a computer that's likely
not there."
     7
       Dr. Lewis personally interviewed the defendant, reviewed
the MBTA police reports, reviewed recent records from
Massachusetts Mental Health Center where the defendant is a
                                                                    6


     The defendant has a significant history of hospitalization

for mental illness.   Specifically, between 2005 and 2009, he was

hospitalized by court order on six different occasions.8   In May,

2007, a guardian was appointed for the defendant with "Rogers




patient, and reviewed previous evaluations dating from 2005
prepared by her and other mental health professionals.
     8
       The first hospitalization was in 2005, as described by Dr.
Lewis. The second, a three-month hospital stay, occurred at the
end of 2005 and the beginning of 2006, after the defendant was
charged with possession of a Class D substance with intent to
distribute; at that time, Dr. Jamie Kraus conducted a competency
evaluation and diagnosed the defendant with bipolar disorder and
schizoaffective disorder, marked by recurring symptoms of rapid
mood change, paranoia, and disordered thinking. The defendant
was hospitalized for the third and fourth times in August, 2006,
when he was charged with an indecent assault and battery (after
an evaluation, the court found him competent to stand trial),
and on September 15, 2006, for a competency evaluation as part
of a probation violation hearing for refusing to take his
medication (he remained hospitalized for the next two years,
eventually being discharged in September, 2008). The fifth
hospitalization occurred after testing in August, 2007, when it
was suggested that the defendant's "scores and response pattern
'fell into the statistical range for symptom malingering.'" At
a hearing in November, 2007, Dr. Lewis suggested to the court
that the defendant's "active symptoms of mental illness had
improved and he was again, at that time, competent." The court
disagreed and recommitted him until September, 2008, when Dr.
Amani Wilson reevaluated the defendant. Dr. Wilson opined that
the defendant had been doing well for the previous six months
and was then competent; the court agreed and ordered the
defendant discharged. The defendant was hospitalized for the
sixth time in April, 2009. He had been arrested for an assault
and battery in March, 2009, had left the Commonwealth for a
period of time, and then turned himself in to authorities. Dr.
Prudence Baxter conducted a G. L. c. 123, § 15(b), competency
and criminal responsibility evaluation, concluding that the
defendant was psychotic; he was released in August, 2009, and
ordered to wear a monitoring ankle bracelet.
                                                                    7


authority" to consent to medication.   See Rogers v. Commissioner

of Dept. of Mental Health, 390 Mass. 489 (1983) (Rogers).

    Apparently, there are no records available for the time

period between November, 2009, when the defendant was released

from the Lindemann Center -- with an ankle bracelet that he

immediately removed -- and December, 2010, when the defendant

met with a psychiatrist, presenting "with hypomanic symptoms."

At that time, the defendant made it clear that "he was not going

to take his medication."   "He had refused it.   He was

experiencing manic symptoms, very agitated, irritable."   In

addition, apparently, the defendant was experiencing some

difficulty obtaining the medication.   Dr. Lewis's report states

that the defendant was "insisting his Mass Health card was being

declined.   Problems with his card were remedied and the pharmacy

was notified" (emphasis supplied).

    In summary, Dr. Lewis opined that the defendant "has a

confirmed severe and persistent mental illness that has been

ongoing for the previous [seven] years. . . . [O]ne consistent

finding is that his ability to perceive reality is significantly

impaired.   When he willingly takes his medication his symptoms

are muted although never in complete remission."    In addition,

the defendant

    "suffers from the paraphilia called Frotteurism.
    Frotteurism refers to the paraphilic interest in rubbing
    against a non-consenting person for sexual gratification.
                                                                   8


     It may involve touching any part of the body including the
     genital area. . . . With the overlay of non-compliance with
     taking his medication and the subsequent resulting
     psychotic symptoms it is difficult to clearly discern the
     relative weight of each state. By [the defendant's]
     present report and previous findings of psychosis from
     earlier evaluations, it seems likely that [the defendant]
     was experiencing active symptoms of mental illness at the
     time of the alleged events. As previously noted, at these
     times, [the defendant] misreads social cues and
     misinterprets the cues of his victims as beckoning and
     provocative and that she may welcome his advances. . . . It
     is more likely than not that during the index event [the
     defendant's] ability to conform his behaviors to the
     requirements of the law was significantly impaired by this
     mental state. In addition, when [the defendant] refuses to
     take his medication his psychotic symptoms become
     exacerbated and prominent affecting his impulse control.
     . . . His mental stability at this time is distorted by
     psychosis and his sexualized state, compromising his
     ability to appreciate the wrongfulness of his conduct."9

     At trial, Dr. Lewis testified that, at the time at issue,

"[the defendant] was not taking his medication . . . , was

experiencing an increase in some of the symptoms that he's

experienced over the seven years, that he misinterprets his

social cues in the environment thinking an individual is

communicating something to him when in actuality they are not,

he is agitated, he's irritable, he is likely experiencing ideas

of reference which is that an individual engages in a particular

act that has nothing whatsoever to do with him and he interprets

it as a message to him in some way, that given those

circumstances, that he's unable to appreciate the wrongfulness


     9
       Dr. Lewis also noted "a significant history of
malingering."
                                                                   9


of his conduct or conform his behaviors to the requirements of

the law."

     After hearing all the evidence, the judge requested further

arguments and briefing from both counsel on the issue whether

the defendant knew that his failure to take his medication would

cause him to act in a manner that was against the law and, if

so, whether that would permit a finding that he was criminally

responsible.   After reviewing those arguments, the judge found

that the defendant was criminally responsible, stating that the

defendant "was aware that if he failed to take his medication,

it would result in this kind of behavior once again . . . . He

has had enough contact with the court system and enough

treatment by this doctor who testified and other doctors that

make it very clear to him that he needs to take his medication

or he would be right back where he started."10   The judge alluded

to Commonwealth v. McGrath, 358 Mass. 314 (1970), and

Commonwealth v. Berry, 457 Mass. 602, stating that the

principles announced in those cases were applicable here.

Specifically, the judge found that the defendant "knew that if


     10
       The judge also pointed out that the defendant had had the
presence of mind to get off the train after the victim pushed
him, wait about twenty minutes, and then return to the station
and get on another train. In addition, she considered the fact
that he had asked to speak to the investigators privately so
that other people in the house would not hear what was going on.
She concluded that "he's not so psychotic that he's not able to
think pretty clearly."
                                                                  10


he didn't take his medication" he was likely to commit further

crimes "and he went ahead anyway and stopped taking his

medication."    On that basis, the judge found the defendant

criminally responsible.

    Discussion.    "In reviewing the denial of a motion for a

required finding of not guilty, we 'determine whether the

evidence, in its light most favorable to the Commonwealth,

notwithstanding the contrary evidence presented by the

defendant, is sufficient . . . to permit the [factfinder] to

infer the existence of the essential elements of the crime

charged [citation omitted]. . . . [T]he evidence and the

inferences permitted to be drawn therefrom must be "of

sufficient force to bring minds of ordinary intelligence and

sagacity to the persuasion of [guilt] beyond a reasonable doubt

. . . ."'   Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979)."    Commonwealth v. Sokphann Chhim, 447 Mass. 370, 376-377

(2006). All permissible inferences are drawn in favor of the

Commonwealth.   Id. at 377.   Here, although the defendant at

trial argued that there was insufficient evidence that he

intended to commit an indecent assault and battery, on appeal,

he argues only that he was not criminally responsible at the

time of the incident and that, in reaching a contrary

conclusion, the judge employed the wrong analysis.
                                                                   11


    Some things are not in dispute.    The defendant is mentally

ill, suffering from a major mental illness as well as a separate

personality disorder.   As noted, despite some history of

exaggeration of symptoms when it served his purposes, he also

has a long history of treatment and hospitalization for mental

illness.   In addition, the defendant has a significant history

of noncompliance with his prescribed medication and the evidence

indicates that the symptoms of his mental illness never

disappear completely.

    In Commonwealth v. Berry, 457 Mass. at 617 n.9, the court

set out a jury instruction for cases "[w]here the Commonwealth

offers evidence that the defendant knew or had reason to know of

the effects of drugs or alcohol on [his] . . . mental disease."

The instruction explained that, "if the Commonwealth has proved

beyond a reasonable doubt that the defendant consumed drugs or

alcohol knowing or having reason to know that the drugs or

alcohol would activate a latent mental disease or intensify an

active mental disease, causing [him] to lose the substantial

capacity to appreciate the wrongfulness of [his] conduct or the

substantial capacity to conform [his] conduct to the
                                                                   12


requirements of the law, then you would be warranted in finding

the defendant criminally responsible."11

     The court refined that holding the next year in

Commonwealth v. DiPadova, 460 Mass. 424, 436-437 (2011), saying,

"there was evidence . . . indicating that [the defendant] knew

at the time of the murder that drugs intensified the symptoms of

his mental illness.   In light of that evidence, it was critical

that the instructions given to the jury clarify how the

defendant's knowledge was to be considered.    Specifically, the

jury should have been instructed that (1) if the defendant's

mental illness did not reach the level of a lack of criminal

responsibility until he consumed drugs, he was criminally

responsible if he knew (or should have known) that the

consumption would have the effect of intensifying or

exacerbating his mental condition; and, in contrast, (2) if the

defendant's mental illness did reach the level of lack of

criminal responsibility even in the absence of his consumption

of drugs, it was irrelevant whether he took drugs knowing that

they would exacerbate that condition."

     The issue in this case is arguably similar, but

distinguishable in a number of ways.     Obviously, here, the

question is not whether the defendant knowingly and voluntarily

     11
       The distinction between latent and active mental illness
was eliminated in Commonwealth v. DiPadova, 460 Mass. 424, 432
n.10 (2011).
                                                                    13


consumed alcohol or drugs that exacerbated his inability to

understand the wrongfulness of his behavior or undermined his

capacity to conform his behavior to the requirements of the law,

but whether his failure to take prescribed medication had those

effects.   It is not at all clear that the situations are

analogous; mentally ill people fail to take prescribed

medication for a myriad of reasons, including, for example, side

effects that may be otherwise dangerous to their health.12    See

Guardianship of L.H., 84 Mass. App. Ct. 711, 724 n.3 (2014)

(Agnes, J., dissenting).   In addition, some people are unable to

obtain the appropriate medication because of lack of money or

access to medical care, or problems with necessary paperwork

such as may have occurred in this case.   A decision not to take

a prescribed medicine, though it may be ill-advised, is

different in kind from a decision to ingest alcohol or drugs

that are not prescribed.   In addition, some medications work

better than others, or take time to become effective, and the

difficulty of discerning when, exactly, someone stopped taking


     12
       "Apart from side effects and illness insight, main
reasons for non-compliance . . . were forgetfulness, distrust in
therapist, and no subjective need for treatment. Other notable
reasons were stigma and advice of relatives/acquaintances
against neuroleptic medication. Gain from illness was a reason
for non-compliance in 11-18% of the psychosis patients."
Moritz, Peters, Karow, Deljkovic, Tonn, & Naber, Cure or Curse?
Ambivalent Attitudes Towards Neuroleptic Medication in
Schizophrenia and Non-Schizophrenia Patients, 1 Mental Illness
4, 4 (2009).
                                                                   14


medication and what his mental state was at that time would be

challenging at best.    Finally, as noted, a guardian had been

appointed for this defendant in 2007 in a substituted judgment

proceeding pursuant to Rogers.    Such a proceeding necessarily

would have involved a decision that the defendant was not

competent to make medical decisions at least at that time.13

       Ordinarily, a determination that a defendant lacks criminal

responsibility by reason of mental disease or defect ends the

inquiry and requires an acquittal.    Berry and DiPadova represent

an exception to that general rule.    Those decisions each start

with the proposition that the defendant in that case was not

criminally responsible at the time of the crime; the question

was whether the lack of responsibility was produced by the

voluntary consumption of drugs or alcohol with the knowledge

that it would render that defendant not criminally responsible.

"The source of the lack of substantial capacity [was] the

critical factor in determining whether the defendant [was]

criminally responsible" in those cases.    DiPadova, 460 Mass. at

431.    It strains that analysis considerably to apply it to a

defendant such as this, because his mental illness is not caused

by his failure to take medication, even though the medication

       13
       The record indicates that, at the time of the trial, the
defendant was "under a Rogers guardianship" and that he was
taking prescribed antipsychotic medication by injection and had
been doing so during the eighteen months between his arrest on
this offense and the trial.
                                                                    15


might alleviate it somewhat or even entirely.    Whether the

Berry-DiPadova analysis is proper in a case such as this is a

difficult question and one for which our cases -- and those of

other jurisdictions -- provide little guidance.    On balance, we

are persuaded that it does not apply on the facts of this case.

That is, Berry and DiPadova have no applicability in a

circumstance where the allegation is that the defendant's lack

of criminal responsibility arises only from a failure to take

prescribed medication.    The appropriate analysis was simply

whether, at the time of the incident, the defendant was

criminally responsible.

    Here, in seeking to resolve the question of the defendant's

criminal responsibility, the judge erroneously took an

additional step of inquiring whether the defendant's lack of

criminal responsibility was caused by his failure to take

prescribed medications.    As a result, we cannot discern whether

she actually made a determination that this defendant in fact

lacked the requisite capacity at the time of the crime and, if

so, whether that lack of capacity was due to a mental disease or

defect.

    In addition, even if the Berry-DiPadova analysis were

appropriately applied to this case, the important question would

be whether, at the time that the defendant refused his

medication, he was criminally responsible.    The evidence
                                                                   16


suggests the answer may very well be no.    The Commonwealth

argues that the judge addressed this issue when she said "it has

also been established that whenever [the defendant] is compliant

with his medication he's fine.   Every single time he has had an

issue, and he's a very intelligent young man from all accounts,

every time he has had a problem with the court system, it has

been because he is non-compliant with the medications prescribed

for him."   In fact, the evidence may not have been so clear cut;

Dr. Lewis's testimony was only that "if he's compliant with

taking his medication, the symptoms of his mental illness

diminish substantially."

    Second, even if the evidence established that the defendant

was criminally responsible when he was compliant with his

medication, there is no evidence that this defendant ever was

compliant with his medication between the time that he was

released from the Lindemann Center in November, 2009, and the

date of this crime on January 20, 2011.    There is a gap in the

record of the defendant's mental health history from November,

2009, until December, 2010, when he was back in contact with his

doctors.    During the time between December, 2010, and January,

2011, when this offense occurred, the medical records show that

the defendant appeared with "manic symptoms," was "irritable"

and "agitated," and refused medication.    There is also some

evidence indicating that the defendant had had difficulty
                                                                    17


obtaining his medication because of insurance problems.

Finally, we note that the Commonwealth's argument, taken to its

logical extreme, could be used to argue that every mentally ill

defendant who had ever taken helpful medication in the past, but

discontinued it, was criminally responsible.

    We are mindful of the presumption that the judge correctly

instructed herself on the law.    See Commonwealth v. Aponte, 71

Mass. App. Ct. 758, 764 (2008).   Moreover, we acknowledge the

care with which the judge decided this issue.      However, the

question of the appropriate analysis for a situation in which a

mentally ill defendant stops taking prescribed medication and

the effect of that action on his criminal responsibility is a

matter for which there is no guiding case law.     After careful

review, we are persuaded that it was prejudicial error to apply

the Berry-DiPadova analysis here.    The defendant, therefore, is

entitled to a new trial.   The judgment is reversed and the

finding set aside.

                                     So ordered.
