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16-P-816                                                  Appeals Court

                 COMMONWEALTH    vs.   CHARLES DINARDO.


                              No. 16-P-816.

         Middlesex.      November 3, 2017. - February 7, 2018.

             Present:   Hanlon, Massing, & Wendlandt, JJ.


Sex Offender. Evidence, Sex offender, Expert opinion, Medical
     report. Witness, Expert, Psychologist. Practice, Civil,
     Sex offender, Instructions to jury.



     Civil action commenced in the Superior Court Department on
July 5, 2012.

     The case was tried before Kenneth W. Salinger, J.


     David H. Erickson for the defendant.
     Jessica Langsam, Assistant District Attorney, for the
Commonwealth.


     WENDLANDT, J.      This appeal presents the question whether,

in connection with a trial to civilly commit an individual as a

sexually dangerous person,1 the written report of a qualified


     1
       G. L. c. 123A, § 1, as amended by St. 1999, c. 74, § 6,
defines "sexually dangerous person" as, inter alia, "[A]ny
person who has been . . . convicted of . . . a sexual offense
                                                                    2


forensic psychologist (who is neither a designated qualified

examiner nor the defendant's treating psychologist) is

admissible as a "psychiatric and psychological record[] and

report[] of the person named in the petition."     G. L. c. 123A,

§ 14(c), inserted by St. 1999, c. 74, § 8.    Concluding that it

is and that the defendant's other arguments lack merit, we

affirm.

    1. Background.     We briefly summarize the relevant facts as

found by the trial judge.    In 1989, the defendant, Charles

Dinardo, was convicted in Connecticut of aggravated sexual

assault, sexual assault of a child, and risk of injury to a

minor.    The victim was the defendant's daughter, whom he

sexually abused continuously from when she was six years old

until she was eighteen, with the exception of a one year hiatus

when the victim's mother took her abroad.    The abuse began when

she was six or seven years old.   He would place a wire in his

own and then the victim's anus while he masturbated.    When she

was eight or nine years old and continuing until she was twelve,

he engaged in weekly oral and anal sex with her.    Over the next

six years, he engaged in weekly sexual contact with the victim.

On one occasion, the defendant told an adult male friend that he



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."
                                                                       3


could have sex with the victim; the friend proceeded to have

oral sex with her.   The defendant expressed disappointment that

he was not afforded the opportunity to watch.    The victim was

afraid to tell anyone about the abuse, but when she was

eighteen, she began to resist the defendant and ultimately

reported the sexual abuse to her therapist.     The defendant was

arrested, convicted, and sentenced to twelve years of

incarceration.

    Following his release, the defendant again was arrested in

Connecticut after reports were made that he was in a parked van

talking to young boys.   He was found guilty of breach of the

peace, and sentenced to probation; however, he violated the

conditions of probation and served a prison sentence.

    In 2007, the defendant approached a fourteen year old boy

at a train show in Holliston, Massachusetts, and asked to speak

to him alone, ostensibly to give him information about trains.

When he had the boy alone, the defendant instead remarked,

"[s]perm is an energy drink, you know."   When the boy did not

reply, the defendant stated, "I'd really love to blow you.      I'll

give you twenty dollars."   The boy walked away, told his father,

and identified the defendant.   The father later reported the

incident; the defendant was arrested in Connecticut.    During the

drive back to Massachusetts, the defendant told the police

officer he should have stayed away from the boy, but "his big
                                                                    4


mouth had gotten him in trouble again."   In a search of the

defendant's apartment, the police found a photograph that the

defendant had taken of a different boy sitting on a model train.

The photograph was captioned "boy who likes to give blow jobs

and getting finger fucked by older neighbor–200%."   The

defendant was convicted in Massachusetts of enticing a child

under the age of sixteen and was sentenced to four and one-half

to five years in prison.

    As the defendant's discharge time neared, the district

attorney retained forensic psychologist Dr. Katrin Rouse Weir to

conduct a preliminary evaluation to determine whether the

district attorney should seek to commit the defendant as a

sexually dangerous person.   Rouse Weir did not interview the

defendant; instead, she reviewed his police reports, probation

records, and treatment records.   In her report, dated June,

2012, she opined that the defendant suffered from a mental

abnormality, pedophilia, and that he was likely to reoffend if

released.   In July, 2012, the district attorney filed a petition

for commitment of the defendant as a sexually dangerous person,

pursuant to G. L. c. 123A, § 12(b).   The defendant was held at

the Massachusetts Treatment Center (treatment center) pending a

determination of probable cause that the defendant was a

sexually dangerous person, pursuant to G. L. c. 123A, § 12(c).
                                                                        5


    In January, 2013, following a stipulation to probable cause

by the parties, the hearing judge found probable cause.     The

hearing judge ordered the defendant held for sixty days pending

examination and diagnosis by two qualified examiners, pursuant

to G. L. c. 123A, § 13(a).    The two qualified examiners, Dr.

Mark Schaefer and Dr. Greg Belle, each interviewed the

defendant.   Reflecting on his abuse of his daughter that

continued for over a decade, the defendant acknowledged that he

abused his daughter and that the police reports were accurate.

He stated that (i) he thought the victim would enjoy the abuse,

(ii) the abuse would further the bond between them, and (iii) he

could not stop himself even though he knew it was wrong.    The

defendant denied having any sexual contact with the boys with

whom he spoke from his van, but admitted soliciting the boy at

the train show.    While he regretted his inability to keep his

mouth shut, he wanted to be part of the teenage boy's sexual

experimentation.

    In February, 2013, the district attorney moved for trial,

pursuant to G. L. c. 123A, § 14(a).    The motion was allowed, and

the defendant was ordered confined to the treatment center for

the duration of the trial.   In 2013 and 2014, the defendant

changed counsel and sought several continuances.

    The district attorney filed a motion in limine to admit

Rouse Weir's report at trial, which the defendant opposed.        The
                                                                        6


trial judge allowed the motion on the ground that Rouse Weir's

report was admissible, pursuant to G. L. c. 123A, § 14(c),

inserted by St. 1999, c.74, § 8, as a "psychiatric and

psychological record[] and report[] of the person named in the

petition."

    The trial began in August, 2015.         Four witnesses offered

expert testimony at trial -- the two court-appointed qualified

examiners, and two licensed psychologists (Dr. Leonard Bard and

Dr. Joseph Plaud) retained by the defendant.        Each of their

reports was admitted at trial.     Schaefer and Belle both opined

that the defendant suffered from pedophilia and was likely to

reoffend if not confined to a secure facility.        Rouse Weir did

not testify, but her report was admitted in evidence through the

testimony of Schaefer, who testified that he relied, in part, on

her report in forming his opinion.     Bard and Plaud opined that

the defendant did not have a mental abnormality and his risk of

reoffense was low.

    In September, 2015, the jury found that the Commonwealth

had proven beyond a reasonable doubt that the defendant was, at

the present time, a sexually dangerous person.        The trial judge

entered judgment on the jury's verdict and ordered the defendant

to be committed to the treatment center for the period of from

one day to life.     This appeal followed.
                                                                     7


    Discussion.      1.   Admissibility of the probable cause

hearing expert's report.      On appeal, the defendant argues that

the trial judge erred in admitting Rouse Weir's report under

§ 14(c).

    We begin our analysis, as we must, with the words of the

statute construed by the ordinary and approved usage of the

language.    See Commonwealth v. Starkus, 69 Mass. App. Ct. 326,

340 (2007) ("we need look no further than the language of

§ 14[c]").    See also Commonwealth v. J.A., 478 Mass. 385, 387

(2017) ("To determine the Legislature's intent, we look to the

words of the statute, 'construed by the ordinary and approved

usage of the language, considered in connection with the cause

of its enactment, the mischief or imperfection to be remedied

and the main object to be accomplished'"), quoting from Boston

Police Patrolmen's Assn, Inc. v. Boston, 435 Mass. 718, 720

(2002).     Section 14(c) provides that certain documentary

evidence is admissible at a sexually dangerous person commitment

trial with notice to the opposing party:

       "Juvenile and adult court probation records, psychiatric
    and psychological records and reports of the person named
    in the petition, including the report of any qualified
    examiner, as defined in section 1, and filed under this
    chapter, police reports relating to such person’s prior
    sexual offenses, incident reports arising out of such
    person's incarceration or custody, oral or written
    statements prepared for and to be offered at the trial by
    the victims of the person who is the subject of the
    petition and any other evidence tending to show that such
    person is or is not a sexually dangerous person shall be
                                                                    8


    admissible at the trial if such written information has
    been provided to opposing counsel reasonably in advance of
    trial" (emphasis supplied).

On its face, § 14(c) appears to encompass Rouse Weir's report.

Rouse Weir is a psychologist and her report is a report of the

defendant -- the person named in the petition.   Accordingly, her

report is encompassed by the plain and ordinary meaning of

§ 14(c) as a "psychiatric and psychological record[] and

report[] of the person named in the petition."

    On appeal, the defendant advances several reasons why the

plain language of § 14(c) should not be construed to permit the

admission of Rouse Weir's report.

    a.   Statutory limitation on the Commonwealth's experts.

First, the respondent asserts that Rouse Weir's report should

have not have been admitted because, in sexually dangerous

person commitment trials, the Commonwealth's expert evidence is

limited to the testimony and reports of the two designated

qualified examiners.   The argument is without merit.   See

Commonwealth v. Cowen, 452 Mass. 757, 762 (2008) (testimony of

expert, who was not designated qualified examiner, permitted

under statutory provision that "any other evidence tending to

show that such person is or is not a sexually dangerous person

shall be admissible at the trial if such written information has

been provided to opposing counsel reasonably in advance of

trial"); Commonwealth v. Blake, 454 Mass. 267, 275 (2009)
                                                                     9


(Ireland, J., concurring) (rejecting argument that the

Commonwealth "lacks statutory authority to present an expert

witness other than one who has been designated by the court as a

qualified examiner").     Cf. Commonwealth v. Starkus, 69 Mass.

App. Ct. at 338-339 (report of Commonwealth's expert

psychiatrist, who was not qualified examiner, admissible under

§ 14[c]).

     b.     Psychiatric and psychological records and reports.

Second, the respondent asserts that "psychiatric and

psychological records and reports of the person named in the

petition" include only records and reports of the psychiatric

specialists who actually examined or treated the person in

question.    This argument also fails.

     The Supreme Judicial Court rejected a similar argument

concerning the scope of the cognate phrase in G. L. c. 123A,

§ 9, pertaining to sexually dangerous person discharge

proceedings.    Santos, petitioner, 461 Mass. 565, 571-573 (2012).

Like § 14(c), § 9 provides that certain reports and records

"shall be admissible" at the discharge hearing, including

"psychiatric and psychological records."2    G. L. c. 123A, § 9, as

amended by St. 1993, c. 489, § 7.    In Santos, the petitioner for

     2
       The court held that the phrase "records" in § 9 includes
reports because § 14(c) includes "records and reports" and the
two statutes must be construed "in a manner that makes them
consistent with one another." Santos, 461 Mass. at 571.
                                                                   10


discharge sought to introduce the report of a nontreating expert

that he had retained for trial.    The Commonwealth argued (as the

defendant does in the present case) that the term was limited to

reports of the committed person's treating psychiatric

specialists.    Id. at 571-572.

       In view of the constitutional due process concerns that the

Commonwealth's proposed construction would create, the court

construed the phrase to include the petitioner's litigation

expert.    Id. at 571-573.   The court observed that while the

annual written reviews by the community access board (CAB) and

the reports of the designated qualified examiners are admissible

in a § 9 hearing pursuant to G. L. c. 123A, §§ 6A and 9,

respectively, no provision expressly permits admission of the

petitioner's expert's report.     To "avoid [the] constitutional

difficulties" that such an imbalance in the evidence would

raise, id. at 570 (quotation omitted), the court rejected the

Commonwealth's narrow construction of "psychiatric and

psychological records" and construed the term broadly to include

the civilly committed person's expert report, even though the

expert was not the person's treating psychiatrist.     Id. at 572-

573.    In doing do, the court stated that it "would interpret the

cognate phrase in G. L. c. 123A, § 14(c), 'psychiatric and

psychological records and reports of the person named in the

petition,' in the same manner" as it interpreted the term
                                                                   11


"psychiatric and psychological records" of § 9.3    Id. at 573

n.10.    Accordingly, the defendant's argument that the term

"psychiatric and psychological records and reports" in § 14(c)

excludes the reports of nontreating psychiatric experts is

without merit.    At a minimum, the term includes the report of a

psychiatric or psychological expert retained by the defendant

for purposes of offering expert testimony at the proceeding.

     We turn then to the question whether the term extends to

include the report an expert retained by the district attorney

for purposes of the proceeding.    Again, the Supreme Judicial

Court has provided guidance.    In Blake, 454 Mass. at 268, the

court considered the sufficiency of the evidence that the

defendant was a sexually dangerous person.    Five psychologists –

two designated qualified examiners, two experts retained by the

respondent for purposes of the litigation, and one licensed

psychologist retained by the Commonwealth for the probable cause

hearing4 -- testified at the trial, and their reports were

submitted to the jury.    See id. at 270, 272, 275 (Ireland, J.,

     3
       The evidentiary provisions of §§ 9 and 14(c) "are
comparable." Santos, supra at 571 (2011), citing McHoul,
petitioner, 445 Mass. 143, 149 (2005). See Commonwealth v.
Felt, 466 Mass. 316, 321 n.7 (2013), quoting from Commonwealth
v. Wynton W., 459 Mass. 745, 747 (2011) ("Where the Legislature
uses the same words in several sections which concern the same
subject matter, the words 'must be presumed to have been used
with the same meaning in each section").
     4
         Coincidentally, this was Dr. Rouse Weir.
                                                                  12


concurring).   In his concurring opinion, which set forth the

court's reasoning on this issue,5 Justice Ireland rejected the

defendant's challenge to the admissibility of the testimony of

the Commonwealth's probable cause hearing expert.    See id. at

274-275.   He also observed that reports not offered by qualified

examiners are admissible as "'psychiatric and psychological

records and reports of the person named in the petition,'

whether provided by the Commonwealth or the defendant."     Id. at

275, quoting from G. L. c. 123A, § 14(c).    See, e.g.,

Commonwealth v. Starkus, 69 Mass. App. Ct. at 338-340 (report of

psychiatric expert, who was not designated qualified examiner,

admissible under § 14[c]).

     We find further support for including the reports of

experts retained by the district attorney within the meaning of

§ 14(c) by reference to similar language in G. L. c. 123A,

§ 13(b), inserted by St. 1999, c. 74, § 8.   Section 13(b)

provides that, during the defendant's temporary commitment after

the determination of probable cause, "[t]he district attorney or

the attorney general shall provide [the qualified examiners]

. . . any psychiatric, psychological, medical or social worker

     5
       The court was divided on a separate issue regarding the
due process implications from the substantial delay in the trial
judge's issuance of his decision after completion of the
sexually dangerous person trial; however, the court unanimously
held that the evidence was sufficient. See Blake, 454 Mass. at
268.
                                                                  13


records of the person named in the petition in the district

attorney's or the attorney general's possession."   This

provision required the district attorney in this case to provide

the qualified examiners with Rouse Weir's report, which he did.

Because we construe two related statutes "in a manner that makes

them consistent with one another," Santos, 461 Mass. at 571,

"psychiatric, psychological . . . records of the person" in

§ 13(b) must have the same meaning as a "psychiatric and

psychological records and reports of the person" in § 14(c).

     Accordingly, we conclude that the report of an expert

psychologist, who is retained by the Commonwealth, is admissible

pursuant to § 14(c) even if the psychologist is neither one of

the two designated qualified examiners nor the defendant's

treating psychiatric specialist.   Here, there is no dispute

concerning Rouse Weir's qualifications or the methodology she

employed, and the admission of her report was not error.6

     2. Jury instruction.   The defendant also argues that the

trial judge improperly directed the jury to rely on Rouse Weir's

report in response to a jury question.   To the contrary, because

the Commonwealth introduced Rouse Weir's report in addition to


     6
       Of course, the trial judge has discretion to determine the
admissibility of a particular report based on the usual
considerations such as reliability. See Ready, petitioner, 63
Mass. App. Ct. 171, 174-179 (2005); Gammell, petitioner, 86
Mass. App. Ct. 8, 15 (2014).
                                                                   14


the opinions of the two designated qualified examiners, the

trial judge properly instructed the jury that the jury needed to

base their determination as to whether the defendant was a

sexually dangerous person on the in-court testimony of a

qualified examiner that the jury found credible.     See Johnstone,

petitioner, 453 Mass. 544, 552-553 (2009); Green, petitioner,

475 Mass. 624, 629-630 (2016).

     At the end of the first day of deliberations, the jury

asked whether the Commonwealth was limited to proving

pedophilia, or whether they could find that the defendant had

another abnormality such as poor impulse control.7    The judge

responded by properly instructing the jury that they were

limited to pedophilia because that was the only abnormality as

to which the Commonwealth presented any evidence.    In connection

with this instruction, the trial judge referenced Rouse Weir's

report because, like the designated qualified examiners, Rouse

Weir's report set forth only pedophilia as the mental

abnormality.8   Moreover, following this answer, the trial judge



     7
       The jury asked: "[D]oes the Commonwealth have to prove
that Mr. Dinardo has specifically pedophilia or any mental
abnormality? Does the mental abnormality have to be one of the
official paraphilia diagnoses from DSM-V or any kind of
abnormality such as poor impulse control[?]"
     8
       In response to the jury's question, the trial judge
responded:
                                                                 15


reminded the jury that all of his instructions were important:

"[D]on't consider what I'm telling you today in isolation.

Follow all of my instructions as I instructed you yesterday

taking into mind the clarification I just provided."

                                   Judgment affirmed.




         "As you all know, the two Commonwealth experts and for
    that matter the report of Ms. Rouse Weir that's in
    evidence, the only basis for any of the Commonwealth’s
    witnesses to assert that Mr. Dinardo has a mental
    abnormality is the assertion that he has pedophilia
    disorder, and that that is what makes him today to be a
    sexual menace in the sense that I've defined it.

         "And so given that state of the evidence, you have to
    decide whether you're convinced that the Commonwealth has
    proved beyond a reasonable doubt on the basis of what those
    experts have told you that Mr. Dinardo today has a mental
    abnormality that fits the definition that we've gone over a
    number of times.

         "You could not find that the Commonwealth has met its
    burden of proof because you find that he has some other
    kind of paraphilia or some other kind of abnormality such
    as poor impulse control, because the Commonwealth presented
    no evidence from any expert psychologist or psychiatrist
    asserting that Mr. Dinardo has any other kind of mental
    abnormality. You have to limit yourself to the evidence in
    this case and decide whether the Commonwealth has or has
    not proved beyond a reasonable doubt based on that evidence
    in this case that Mr. Dinardo today has such a mental
    abnormality."
