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13-P-1052                                             Appeals Court

                       GEORGE SOUZA, petitioner.


                            No. 13-P-1052.

            Suffolk.      June 3, 2014. - March 18, 2015.

            Present:   Kantrowitz, Milkey, & Hanlon, JJ.


Sex Offender. Practice, Civil, Sex offender, Directed verdict,
     Instructions to jury. Evidence, Sex offender, Expert
     opinion.



     Petition filed in the Superior Court Department on February
2, 2009.

    The case was tried before Diane M. Kottmyer, J.


    Mary P. Murray for the Commonwealth.
    Michael A. Nam-Krane for the petitioner.


    HANLON, J.    George Souza filed a petition in Superior Court

seeking release from his civil confinement as a "sexually

dangerous person" (SDP).    See G. L. c. 123A, § 9.   At trial, the

jury was unable to reach a verdict and, thereafter, the trial

judge allowed Souza's motion for a directed verdict of not
                                                                     2


guilty.     The Commonwealth appeals, arguing there was sufficient

evidence to permit a retrial.     We agree and reverse.

     Background.     We recite the evidence heard by the jury in

the light most favorable to the Commonwealth.     Commonwealth v.

Cowen, 452 Mass. 757, 763 (2008).     Souza has a significant adult

criminal record, extending over a period from 1963 until his

last conviction in 2000.1    In 1971, he pled guilty in New York to

"rape in the second degree" for having "engaged in sexual

intercourse with . . . [a] female less than . . . fourteen years

of age."2    Souza has maintained that the victim was working as a


     1
       There was evidence that Souza first came to the attention
of the police when he was eleven years old. At the trial, his
record showed Massachusetts convictions for indecent assault and
battery on a child under fourteen, robbery, larceny from the
person, breaking and entering with intent to commit a felony,
and larceny from a building. There were convictions in New York
for criminal possession of a forged instrument, endangering the
welfare of a child, and rape in the second degree. The
"counterfeiting and the endangering of a child's welfare . . .
charge[s] [were apparently] a result of having three young
adolescent boys essentially run the counterfeit money into
various establishments and get change for objects that Mr. Souza
then kept or split with the boys."

     The record also indicates that Souza has "committed crimes
in a number of [other] states including . . . Rhode Island,
Oklahoma, Nevada, and California."
     2
       The same indictment also charged Souza with, on or about
May 25, 1971, until on or about June 7, 1971, two counts of
"promoting prostitution in the first degree" by "knowingly
advanc[ing] and profit[ing] from prostitution of a person less
than sixteen years old, to wit, [a victim], aged thirteen." A
third count charged Souza with "promoting prostitution in the
second degree," committed as follows: Said defendant . . .
advanced and profited from prostitution by managing,
                                                                   3


"prostitute" at the time, that she looked eighteen to him, and

that she agreed to engage in sex with him. Nevertheless, in one

interview, he also stated, "[A] little girl came . . . it was my

fault . . . this little child . . . I should never [have] went

with this child."   When asked how old the girl had been, he

said, "I have no idea . . . I don't even want to guess."   He was

then twenty-seven years old.   On another occasion, in 2011,

Souza asserted that the police entered the room where he was

with the victim "before any sexual activity took place."   More

recently, in a group therapy session in 2012, Souza, discussing

the New York offense, told the group that he had "engag[ed] in

sexual intercourse with a 15-year-old prostitute . . . [and]

that she did not look 15 because they make them bigger in New

York."

    Souza's conviction in 2000 for indecent assault and battery

on a child under the age of fourteen arises out of an incident

in 1990 with a nine year old boy in Fall River.   After he was



supervising, controlling and owning, a house of prostitution and
a prostitution business and enterprise involving prostitution
activity by two prostitutes." Those charges apparently were
dropped, and, because the names of the victim or victims were
redacted from the copy of the indictment introduced at trial, it
is not completely clear whether the victim of the rape charge
was also the subject of the prostitution charges. However, in a
2003 evaluation by John Daignault, Psy.D., Souza stated that,
after he paid the victim in the 1971 rape case, the victim
"asked to stay with him and he let her, and he ended up getting
arrested several days later because he was letting her 'trick'
out of his house and the police investigated."
                                                                       4


arrested, Souza defaulted and left the State.    Arrested on

another charge in New York, Souza was returned to Massachusetts

and pleaded guilty in 2000.    The Commonwealth alleged that Souza

had offered the victim a ride on a motorcycle, and then accosted

him, pulling down his pants and the victim's pants and then

putting his penis in the victim's mouth and ejaculating.       Souza

told the victim not to tell his mother or he would "hurt him

bad."   At the plea hearing, Souza admitted only to rubbing the

victim's penis and thereafter denied any involvement in the

incident, accusing the victim's mother of fabricating the story

and his lawyer of forcing him to plead guilty.

     For that incident, Souza received a sentence of three years

to three years and one day.    Before his release, the

Commonwealth filed a petition alleging that Souza was sexually

dangerous under the provisions of G. L. c. 123A, §§ 1, 12-16.

After a jury-waived trial, the judge found Souza to be an SDP

and committed him to the Massachusetts Treatment Center

(Treatment Center) for an indefinite term.    See G. L. c. 123A,

§ 14.   Souza appealed, challenging both the sufficiency of the

evidence that he was an SDP and the use of statements he made to

the Commonwealth's expert.    This court affirmed in a memorandum

and order pursuant to our rule 1:28.    See Commonwealth v. Souza,

70 Mass. App. Ct. 1105 (2007).
                                                                     5


     Souza's record while incarcerated reveals a number of

incidents.    He was the victim of an assault by other inmates at

least once.    In addition, he was disciplined for some relatively

minor infractions, along with physical altercations on a number

of occasions.    At the Treatment Center, he received twenty-three

"Observation of Behavior Reports" (OBRs) during the decade he

was confined there.     Those records included some substantiated

incidents of violence:    in 2004, Souza got into a physical

altercation with his roommate, and in February of 2012, he spat

at and pushed another resident and then banged his own head on a

cell door to make it look as though a guard had attacked him.

     It is undisputed that Souza did not complete sex offender

treatment while he was at the Treatment Center.     In fact,

although he had begun the initial phase of treatment during his

incarceration for the incident with the nine year old boy, Souza

did not enroll in any treatment during his first six years at

the Treatment Center.    Despite his regular attendance in

treatment classes thereafter, Souza made only limited progress.

At the time of trial, when Souza was sixty-nine, he remained in

the early stages of the treatment programs offered to him.3



     3
       In 2012, the Treatment Center subjected Souza to a "penile
plethysmograph" (PPG) test designed to measure the extent to
which he was aroused by various appropriate and inappropriate
stimuli. According to the test evaluator, Souza did not
demonstrate any significant arousal to any stimuli, and, based
                                                                    6


     In March of 2012, a divided Community Access Board (CAB)

concluded in a four-to-one vote, that Souza no longer met the

criteria of an SDP.   The two qualified examiners (QEs) who

examined him also were divided on the question.

     The Commonwealth's case at trial.    At trial, the

Commonwealth relied primarily on the testimony of two experts.4

Frederick W. Kelso, Ph.D., one of the QEs, testified that Souza

suffered from "pedophilia" and "antisocial personality disorder"

(APD), as those terms are defined in the American Psychiatric

Association's Diagnostic and Statistical Manual of Mental

Disorders (rev. 4th ed. 2000) (DSM-IV).   Kelso opined that those

mental conditions interfered with Souza's ability to control his

sexual urges, and that he was likely to reoffend if not

confined.   He identified Souza's "risk factors" as having

committed a prior sex offense, including a sex offense against a

stranger, sex offenses against children not related to him, and

a sex offense against a male.   Kelso also noted Souza's "past


on those results, behavioral conditioning was not recommended at
that time.
     4
       Two other Commonwealth witnesses testified briefly. The
deputy superintendent of classification and treatment at the
Treatment Center testified that Souza exercised regularly,
running laps in the exercise yard, and that Souza has spoken to
him about how important it is for him to stay in good physical
shape. The assistant treatment coordinator at the Treatment
Center testified that Souza had been suspended from
participation in group therapy for a "physical altercation that
took place" between Souza and another resident and that there
had been unexcused absences from the group as well.
                                                                     7


experience of deviant sexual preferences, and his failure to

complete sex offender treatment at the Treatment Center."       At

the time of the Fall River incident, Souza was "then forty-six

years old, and the victim of the sex offense was a boy who was

then nine years and one month old."

     Niklos Tomich, Psy.D., chair of CAB, filed a minority

report from the CAB, concluding that Souza was still sexually

dangerous.   He essentially agreed with Kelso.   Tomich described

Souza as an "outlier. . . .    [I]t means somebody who

differentiates from the norm."5    According to Tomich, Souza

"essentially showed an enduring and rather chronic course of

antisocial behavior.   That has been unremitting.   He has shown

very little remorse.   He essentially continues to obfuscate

responsibility for the crimes for which he was convicted,

especially the sex offenses, which is what [Tomich was] mostly

concerned about."

     Significantly, Tomich also opined that Souza "meets the

criteria for pedophilia."6    He pointed out that "both his victims


     5
       Tomich explained that Souza "has two convictions of sexual
offenses, but he also has a very long criminal history that
includes seventeen additional convictions . . . including other
types of offenses. . . . Subsequent to his most recent period of
incarceration and then civil commitment, he also has
approximately twenty-five disciplinary reports, some of them of
a violent nature."
     6
       In her memorandum of decision, the judge stated that,
while Tomich found that Souza exhibited signs of pedophilia, "he
                                                                       8


were children [and that] . . . [w]hat stood out . . . for those

offenses was the fact that they occurred over a very long period

of time.    And, in addition, he has both a male victim and a

female victim.   So, this tends to increase his victim pool."     In

addition, Tomich found significant the fact that the girl victim

was a stranger, thus increasing the pool of potential victims,

and that, when Souza committed the offense against the boy

victim, he knew about the possible repercussions in the criminal

justice system, having previously served a four year sentence in

New York.

    Tomich contrasted those "static factors," factors that do

not change over time, with "what are called dynamic factors or

factors that . . . may change over time, that may get stronger

or weaker, depending on the situation [Souza's] in."    In this

case, those factors also supported Tomich's conclusion that

Souza was an SDP, particularly his "unwillingness to abide by

the mores and folkways and rules of society.   He just doesn't

want to do that and he hasn't."    Tomich also considered Souza's

unwillingness to take responsibility for either offense.




did not diagnose Mr. Souza with" that disorder. Although the
import of the distinction the judge drew is not entirely clear,
Tomich made it plain that he did in fact diagnose Sousa with
pedophilia. In response to the prosecutor's question, "Did you
diagnose Mr. Souza with anything else?" Tomich replied,
"Yes." To the question, "And what was that?" Tomich replied,
"He also meets the criteria for pedophilia."
                                                                       9


    Tomich did consider protective factors, including Souza's

age of sixty-nine, an age at which sex offenders often are

considered less dangerous.   Tomich noted that Souza's second sex

offense took place when he was forty-six and that his last

criminal arrest took place when he was fifty-five; in addition,

Souza's behavior in the Treatment Center included offenses that

could have been charged as criminal had he not been held.

Finally, while Souza was engaged in treatment, he was only at a

preliminary stage of that treatment, a level that Tomich found

"inadequate."   In support, he pointed to a treatment note from a

group therapy session less than two months before the trial.      In

that group, Souza had given three different accounts of the New

York offense and the surrounding circumstances within the time

of one session.    Tomich stated that he wasn't suggesting that

Souza was lying.    Instead, he stressed that Souza "is disordered

and requires treatment. . . . [A] function of his disorder is

that he distorts his history and distorts events in the record.

That complicates and confounds treatment."

    Souza's case.    Souza countered with testimony from four

experts:   Michael G. Henry, Psy.D. (the other QE), Michael J.

Murphy, Ed.D. (the CAB member who authored the CAB majority

report), and two privately-retained psychologists.    Focusing

especially on Souza's advanced age, the PPG results, and the

limited evidence that he suffered from any sexual compulsions at
                                                                   10


the time of trial, those experts opined that Souza was not

currently sexually dangerous and did not present a likelihood of

reoffending.

     The directed verdict.   Souza moved for a directed verdict

after the Commonwealth rested its case and again at the end of

the trial.   The judge reserved ruling on the motion and sent the

case to the jury.7   The jury reported that they had reached "an

impass[e]," and they "remain[ed] deadlocked" even after

receiving a Tuey-Rodriquez charge.8   See Commonwealth v.

Rodriquez, 364 Mass. 87, 101-102 (1973).   The judge discharged

them and allowed both sides to submit briefing on Souza's motion

for a directed verdict.   In a memorandum of decision issued on

April 11, 2013, the judge allowed Souza's motion.    Judgment

entered, and this appeal ensued.9


     7
       The case had been tried earlier to a different jury, but a
mistrial was declared after Souza became ill.
     8
       In a jury trial held on a G. L. c. 123A, § 9, release
petition, the jury may act through a five-sixths majority, as is
generally true in civil cases. Sheridan, petitioner, 422 Mass.
776, 780-781 (1996). See generally G. L. c. 234, § 34A.
     9
       Judgment entered in Souza's favor on April 17, 2013, but
the judge temporarily stayed Souza's release to allow the
Commonwealth time to determine whether to appeal. The
Commonwealth filed its notice of appeal on April 29, 2013. It
then requested that Souza's release further be stayed, and Souza
cross-moved, requesting that he be released pending appeal
subject to various specified conditions, including global
positioning system (GPS) monitoring. The trial judge allowed
Souza's motion, and a single justice of this court denied the
Commonwealth's motion for a stay pending appeal. The
                                                                   11


    In her memorandum of decision, the judge ruled that "[a]

properly instructed rational juror could not find that the

Commonwealth had proved beyond a reasonable doubt that

petitioner suffers from Pedophilia as defined in the DSM IV."

In a footnote, she stated, "[a]ll of the experts, including Dr.

Kelso, testified that the criteria for Pedophilia in the DSM-IV

include 'over a period at least 6 months, recurrent, intense,

sexually arousing fantasies, sexual urges or behaviors involving

sexual activity with a prepubescent child or children (generally

13 years of age or younger).'"    While the judge acknowledged

that the nine year old male victim in the 1990 incident clearly

was prepubescent, she found the evidence insufficient to support

a conclusion that the thirteen year old female victim in the

1971 incident was prepubescent.    In so doing, the judge relied

on the testimony of a defense expert, saying that "[t]he Tanner

scale, which is used by pediatricians to stage physical sexual

development of children, places a 13 year old at 85-90% post-

pubescent."   From this, the judge concluded that it was "very

unlikely" that the thirteen year old was prepubescent and



Commonwealth then pursued a stay through filing a petition
pursuant to G. L. c. 211, § 3. A single justice of the Supreme
Judicial Court denied that petition on June 26, 2013. Souza
eventually was released pursuant to an amended "order of
discharge" entered on June 28, 2013, that included GPS
monitoring and nine other conditions. He has completed all of
his sentences and has no probation or parole conditions
remaining on any underlying offense.
                                                                  12


therefore the conclusion of both Commonwealth experts, based as

it was on "an insufficient evidentiary foundation," was not

sufficient to meet the Commonwealth's burden of proof.

    While the judge acknowledged that the "evidence was

sufficient to support a finding beyond a reasonable doubt that

petitioner today suffers from an Antisocial Personality

Disorder," in her view, that diagnosis alone was not sufficient

because, as she said (rightly), "to establish sexual

dangerousness, the Commonwealth must prove beyond a reasonable

doubt that the mental condition causes serious difficulty in

controlling sexual impulses today."   She concluded:

    "[T]he petitioner is 69 years old today. His most recent
    sexual offense or sexual misconduct of any kind was in
    1990. He was a fugitive for eight years and has been
    incarcerated since 1999. There is no evidence of any
    sexual interest in children or sexual acting out of any
    kind during the years petitioner lived in the community on
    bail and as a fugitive (1991-1999) or during the thirteen
    years since his incarceration on the 1990 offense and
    subsequent civil commitment (1999 to the present)."

Given the fact that the "only evidence of sexual interest in

children on the part of petitioner are the crimes committed in

. . . 1971 and 1990," the judge dismissed as inappropriate

considerations of Souza's failure to engage in treatment, score

on the "Static 99" and "antisocial tendencies."

    Discussion.   Sufficiency.   The issue is "whether, after

viewing the evidence (and all permissible inferences) in the

light most favorable to the Commonwealth, any rational trier of
                                                                   13


fact could have found, beyond a reasonable doubt, the essential

elements of sexual dangerousness as defined by G. L. c. 123A,

§ 1."   Commonwealth v. Blake, 454 Mass. 267, 271 (2009)

(Ireland, J., concurring), quoting from Commonwealth v. Boyer,

61 Mass. App. Ct. 582, 589 (2004).   Applying that standard, we

are satisfied that the Commonwealth's evidence here was

sufficient to reach the jury.

    As relevant to this case, a "'[s]exually dangerous person',

[is] any person who has been . . . (iii) previously adjudicated

as such by a court of the commonwealth and whose misconduct in

sexual matters indicates a general lack of power to control his

sexual impulses, as evidenced by repetitive or compulsive sexual

misconduct by either violence against any victim, or aggression

against any victim under the age of 16 years, and who, as a

result, is likely to attack or otherwise inflict injury on such

victims because of his uncontrolled or uncontrollable desires."

G. L. c. 123A, § 1, as appearing in St. 1999, c. 74, § 6.     As

the Commonwealth argues, the first two elements of the statute

are not at issue.

    In support of the third element, the Commonwealth offered

two expert witnesses, each of whom testified that, in his

opinion, Souza was an SDP.    There was no challenge to the

expertise of either witness, and the testimony itself was

admitted without objection.    Each of the Commonwealth expert
                                                                  14


witnesses testified that Souza suffered from antisocial

personality disorder and pedophilia.   "[E]ither diagnosis is

adequate to satisfy the definitional requirements of a sexually

dangerous person in G. L. c. 123A, § 1."   Commonwealth v. Reese,

438 Mass. 519, 526 n.9 (2003).   Kelso testified that, in his

opinion, Souza's behavior in committing the two separate sexual

offenses was repetitive and compulsive,10 and "at the present

time, Mr. Souza is not adequately able to control his sexual

impulses and would not be able to adequately control his sexual

impulses if he were to now be released from the Treatment

Center."   Tomich also testified that Souza's offenses were

repetitive and compulsive and that he was unable to "effectively

intervene in or control his sexual impulses."   Each expert

opined that, "if released, Mr. Souza would be likely to re-

offend sexually if not confined to a secure facility."

     The judge's conclusion to the contrary rests significantly

upon her acceptance of the defense witness's testimony about the

"Tanner scale['s]" definition of prepubescence and the

consequences of that definition for the DSM-IV's definition of

     10
       Dr. Kelso noted that, notwithstanding the fact that Souza
was put on notice by the State of New York in 1971 that his
behavior in committing the sexual offense against the young girl
was "inappropriate and criminal and that engaging in that kind
of conduct would result in a serious negative consequence,
incarceration," Souza went on to commit a second sexual offense
in Massachusetts, which "speaks to the sense that he's compelled
to engage in the behavior even after he experiences a negative
consequence."
                                                                     15


pedophilia.   That was an issue of credibility that should have

been left to the jury.    "The matter of how much weight is to be

given a witness, particularly an expert witness, is a matter for

the trier of fact . . . .    See Hill, petitioner, 422 Mass. 147,

156 (1996).   This is particularly true of experts in the medical

field, who regularly are permitted to testify on the basis of

examination of records and other materials with respect to an

issue in dispute."    Commonwealth v. Cowen, 452 Mass. at 762.

    As the courts have noted repeatedly, "the sexually

dangerous persons statute makes no reference to [the DSM-IV],

nor does it set forth any requirement that the statutory

definition of mental abnormality be limited to the abnormalities

outlined in the DSM-IV.     Cf. Doe, Sex Offender Registry Bd. No.

1211 v. Sex Offender Registry Bd., 447 Mass. 750, 765 n.13

(2006) ('[p]edophilia is a psychiatric disorder, not a legal

classification')."    Commonwealth v   Starkus, 69 Mass. App. Ct.

326, 336 (2007).     See Commonwealth v. Husband, 82 Mass. App. Ct.

1, 5 (2012) ("[T]he legal definition of personality disorder

applicable to SDP proceedings is not required to match the

clinical definition of personality disorder found in the

American Psychiatric Association's Diagnostic and Statistical

Manual of Mental Disorders (4th ed. 2000) (DSM-IV). . . .     The

technical distinctions among various clinical diagnoses are

immaterial so long as the Commonwealth proves beyond a
                                                                   16


reasonable doubt that the defendant suffers from a 'personality

disorder which makes [him] likely to engage in sexual offenses

if not confined to a secure facility.'    G. L. c. 123A, § 1").

       Equally important, the DSM-IV definition of pedophilia on

its face describes prepubescent as "generally age 13 or

younger."    Commonwealth v. Starkus, supra at 336.   It is only

the gloss added by the defense expert's definition of

prepubescence that permitted the judge to opine that it was

"very unlikely" that this thirteen year old female victim was

"prepubescent" in 1971, despite Souza's description of her (at

least once) as having been a "little child" when he raped her.

In fact, regardless of the precise state of the child's

anatomical development, this victim was far below the age of

consent and Souza's actions with her, at age twenty-seven,

reasonably could be seen by a factfinder as manifesting a form

of "mental abnormality" within the meaning of the statute.

       Nor can the petitioner's age or the length of time since

his last conviction for a sex offense be considered dispositive

here.    Each of the Commonwealth's experts considered those

factors as protective and reasonably concluded that, considering

all of the factors, they did not change the assessment.     For

example, Kelso relied in part on the so-called "Static 99R"

model, a predictive tool that takes into account a subject's

age.    Applying that model to the particulars of Souza's offenses
                                                                  17


and history, Kelso scored him as a five or a six, the latter

score falling into the range of what is considered a high risk

of reoffending.11   Thus, the jury had before it empirically-based

evidence that Souza presented a high risk to reoffend

notwithstanding his age.

     The law is clear that the lapse of time, by itself, is not

dispositive, particularly when the petitioner has been held for

a significant period of time in a secure environment with no

opportunity to interact with young children.   See Commonwealth

v. Blanchette, 54 Mass. App. Ct. 165, 178 (2002) ("[T]he judge

appears to have reduced the grounds for the expert's opinion

only to [the petitioner's] prior sex crimes, ignoring in the

process other factors which he considered when forming his

opinion, such as [the petitioner's] personal history and [his]

decision, while incarcerated, to decline sexual offender


     11
       In Kelso's testimony and his report, he referred to
"Static-99." Asked by the prosecutor to explain what that was,
Kelso responded that it was "a very widely used sex offender
risk assessment instrument." A different version, "the Static-
99R adjusts the age item so that if you're an older sex
offender, your advanced age is taken into account in terms of
your total score." Kelso testified that Souza's score was
slightly lower on the Static-99R than on the Static-99, but that
he remained a high risk to offend, even with the lower score.
Specifically, Kelso testified that "while [he thought Souza's]
current age [was] one factor that merits consideration in the
risk assessment, [he didn't] think it so overwhelm[ed] his
status on the other risk factors as to be the only risk factor
worthy of consideration." In particular, Kelso noted that Souza
was forty-six when he committed the 1990 sex offense with the
boy victim.
                                                                   18


treatment.   As to the latter, the Supreme Judicial Court

cogently observed in . . . Hill, [petitioner,] 422 Mass. . . .

[at] 157, . . . that

    '[e]xamples of recent conduct showing sexual dangerousness
    may often be lacking where the individual's dangerous
    disposition is of a sort that there will be no occasion for
    that disposition to manifest itself in a secure
    environment. And it cannot be the case that an
    individual's refusal to submit to examination or to
    participate in treatment, in which his current dispositions
    might manifest themselves, will more or less automatically
    guarantee himself a favorable determination'").

    The court's language in Commonwealth v. Reese, 538 Mass. at

526 is instructive here.   "It is . . . apparent from the record

that the ruling is an expression of the judge's personal

conclusion regarding the expert[s'] credibility, based on [her]

own opinion of the proper application of the DSM-IV, and the

significance of the differences between [the experts'] testimony

and the DSM-IV text.   This was error.   The testimony of the

expert[s] is not 'so incredible, insubstantial, or otherwise of

such a quality that no reasonable person could rely on it.'

Commonwealth v. Blanchette, supra at 175."

    Jury instructions.     The Commonwealth also argues that the

judge erred in instructing the jury with regard to the extent it

was to rely on the testimony of Kelso (who testified as a QE),

as opposed to the testimony of Tomich (who did not).

Specifically, based on her reading of Johnstone, petitioner, 453

Mass. 544, 553 (2009), the judge instructed the jury that:
                                                                   19


    "You heard of testimony from Dr. Tomich, a representative
    of the community access board. The law permits a
    representative of the community access board to testify in
    all proceedings like this one, and you may certainly rely
    upon the testimony of Dr. Tomich. However, you cannot find
    that the petitioner, Mr. Souza, is sexually dangerous based
    solely on the testimony of Dr. Tomich. In order for you to
    find that Mr. Souza is today a sexually dangerous person,
    you must find support for that determination in the opinion
    that [sic] Dr. Kelso, who testified as a qualified
    examiner."

Because the propriety of this instruction is likely to arise

again in a retrial, we address it now.

    We agree with the Commonwealth that such an instruction is

not compelled by Johnstone, and that it is otherwise

inadvisable.    Johnstone held only that the Commonwealth cannot

continue to pursue SDP confinement of someone unless at least

one of the two assigned QEs concludes that the person is an SDP.

Id. at 553.    That precondition was satisfied here.   As the judge

herself recognized, in determining whether someone is an SDP,

jurors are not precluded from relying on evidence from non-QE

sources.   The judge's efforts to acknowledge this to the jury,

while still trying to create a special evidentiary role for the

QE, led to an instruction that was confusing at best and not a

fair statement of the law.    Where, as here, the gatekeeping role

served by QEs has been satisfied, and the Commonwealth offers

additional expert testimony, a trial judge should refrain from
                                                                   20


suggesting the relative weight the jury can or should assign to

the various Commonwealth experts.12

     Conclusion.   We vacate the judgment and remand this matter

to Superior Court for further proceedings consistent with this

opinion.

                                      So ordered.




     12
       The Commonwealth also seeks review of Souza's release on
conditions pending appeal. However, it did not file a notice of
appeal regarding any of the orders that allowed his release
pending appeal, and therefore cannot seek review of such orders
now. As Souza points out, the propriety of his release pending
appeal is also now moot.
    MILKEY, J. (dissenting).    The majority's well-reasoned

opinion has a surficial logic that is difficult to contest.     In

addition, I agree that it is important that judges usurp neither

the fact-finding role assigned to juries, nor the gatekeeping

role assigned to "qualified examiners" (QEs) pursuant to G. L.

c. 123A.   Nevertheless, for the reasons set forth below, I

ultimately agree with the trial judge that the Commonwealth's

evidence that George Souza is currently a "sexually dangerous

person" (SDP), as defined by G. L. c. 123A, § 1, was so

insubstantial that, as a matter of law, it cannot justify his

continued detention.   I therefore respectfully dissent.

    In examining the sufficiency of the Commonwealth's proof,

it is important to consider the extraordinary context in which

this dispute arises.   It is uncontroverted that Souza has both

committed odious crimes and fully served his punishment for

those crimes; indeed, he already has been deprived of his

liberty for almost a decade after his prison term ended.      The

Commonwealth seeks to have him reconfined not in punishment for

his past crimes but in anticipation that he may commit future

ones.   In this context, the ordinary rule barring propensity

evidence does not apply.   In fact, propensity is the main focus

of SDP proceedings, and experts are called upon to speak

directly to that issue (with seeming oracular certitude).

Contrast Commonwealth v. Sepheus, 468 Mass. 160, 172 (2014)
                                                                      2


(defense counsel determined to have been constitutionally

ineffective for failing to move to strike expert testimony that

went directly to defendant's guilt).

     By definition, preventative detention schemes allow people

to be locked up for crimes they indisputably have not committed,

even in the face of the constitutional presumption of innocence.

As the United States Supreme Court has held, the

constitutionality of such schemes depends on the theory that the

people so confined suffer from distinct mental conditions that

prevent them from controlling their dangerous behaviors in the

future.   Kansas v. Hendricks, 521 U.S. 346, 358-360 (1997).     It

necessarily follows that, absent an adequate medical foundation,

the constitutionality of continued confinement is called into

question.   See id. at 373 (Kennedy, J., concurring) ("[I]f it

were shown that mental abnormality is too imprecise a category

to offer a solid basis for concluding that civil detention is

justified, our precedents would not suffice to validate it").1


     1
       See also Matter of State of N.Y. v. Shannon S., 20 N.Y.3d
99, 109-110 (2012) (Smith, J., dissenting), quoting from Kansas
v. Crane, 534 U.S. 407, 413 (2002) ("[U]nless 'mental
abnormality' is defined with scientific rigor, [sexual
dangerousness] statutes could become a license to lock up
indefinitely, without invoking the cumbersome procedures of the
criminal law, every sex offender a judge or jury thinks likely
to offend again[; such statutes] must be limited to people who
can be shown by scientifically valid criteria to have a 'serious
mental illness, abnormality, or disorder' -- one that
distinguishes them 'from the dangerous but typical recidivist
convicted in an ordinary criminal case'").
                                                                    3


This constitutional overlay needs to be kept in mind in

assessing the adequacy of the nature and quantum of the

Commonwealth's evidentiary proof.   When such considerations are

taken into account, the Commonwealth's proof here falls short of

acceptable norms.

    Certainly, the majority is correct that existing cases

state that judges in SDP cases must proceed with caution before

directing a verdict against the Commonwealth (or issuing a like

order finding the Commonwealth's case deficient as a matter of

law).   Thus, where there are competing expert opinions on

whether someone is an SDP, a judge is not free to pick and

choose which opinions to credit; that job falls to the jury.

See Commonwealth v. Reese, 438 Mass. 519, 525-526 (2003).

However, the cases do not stand for the proposition that once a

QE has opined that someone is an SDP, a judge therefore must

allow the case to go to the jury.   To the contrary, they

continue to recognize that a judge properly may terminate an SDP

proceeding if the Commonwealth's evidence is "so incredible,

insubstantial, or otherwise of such a quality that no reasonable

person could rely on it to conclude that the Commonwealth had

met its burden of proof."   Id. at 524, quoting from Commonwealth
                                                                    4


v. Blanchette, 54 Mass. App. Ct. 165, 175 (2002).2   In my view,

this is just such a case.

     Souza was sixty-nine years old at the time of trial.    At

that point, the statutory rape he committed was over four

decades old, and the indecent assault and battery on a child

(the only other sex offense at issue in this case) was over two

decades old.   As the Commonwealth's lead expert, Frederick W.

Kelso, Ph.D., himself acknowledged, peer-reviewed empirical

studies show that once sex offenders reach their sixties and

seventies, they "tend not to be very likely to commit future sex

offenses."   Of course, that concession by itself does not

present an insurmountable obstacle to the Commonwealth.   Even if

sex offenders generally are not very likely to reoffend at

Souza's age, this does not preclude proof that Souza in


     2
       The Commonwealth suggests that the QE's gatekeeping role
effectively precludes a trial judge from scrutinizing the
sufficiency of the evidence. In my view, the extraordinary
context of preventative detention demands that judges continue
to play such a role. Moreover, as this case well illustrates,
in light of how the SDP scheme is structured, relying on juries
to weed out unmeritorious SDP cases goes only so far. Although
the Commonwealth was unable at trial to convince the requisite
number of jurors to find that Souza remains an SDP, he now --
over five years after his G. L. c. 123A, § 9, petition was filed
-- again faces the prospect of indefinite confinement. After
retrial, he could be confined even in the absence of a jury
finding that he currently is an SDP so long as a sufficient
number of jurors held out for such a finding. This presents
serious cause for concern, especially given that the underlying
subject area is one that is "ruled by emotions." Commonwealth
v. Sullivan, 82 Mass. App. Ct. 293, 319 (2012) (Milkey, J.,
dissenting).
                                                                    5


particular suffers from mental conditions that render him likely

to do so.   However, such proof is lacking on the current record.

    The Commonwealth's experts relied in great part on their

classifying Souza as a "pedophile" within the meaning of the

American Psychiatric Association's Diagnostic and Statistical

Manual of Mental Disorders (rev. 4th ed. 2000) (DSM-IV).

According to them, it was the combination of pedophilia and

"antisocial personality disorder" (APD) that created the undue

risk that he would reoffend.   In the words of the Commonwealth's

second expert, psychologist Niklos Tomich, "Mr. Souza's

Pedophilia results in his deviant arousal and behavior and his

Antisocial Personality Disorder provides him the psychological

means to engage behaviorally in, and then excuse, his behavior."

    According to the DSM-IV, "a diagnosis of pedophilia

requires '[a] period of at least six months, recurrent, intense

sexually arousing fantasies, sexual urges, or behaviors

involving sexual activity with a prepubescent child or children

(generally age 13 or younger).'"   Commonwealth v. Starkus, 69

Mass. App. Ct. 326, 336 (2007), quoting from the DSM-IV.   As

applied to the facts here, this required proof that the 1971

victim was prepubescent.   The trial judge found the

Commonwealth's proof of that point legally insufficient.   The

majority rejects the judge's reasoning on three grounds:   (1)

the Commonwealth is not bound by the definitions of the DSM-IV,
                                                                       6


(2) the state of the 1971 victim's anatomical development is

irrelevant because she was in any event well below the age of

consent, and (3) the Commonwealth put forward sufficient proof

that the 1971 victim was prepubescent (thus in any event

satisfying the definition of "pedophilia" set forth in the DSM-

IV).       I address these points in that order.

       We have long recognized the DSM as the standard diagnostic

authority in the psychiatric and psychological professions.      See

Lambley v. Kameny, 43 Mass. App. Ct. 277, 278 n.4 (1997).

Nevertheless, as the majority correctly points out, in building

a case that a sex offender suffers from a "mental abnormality"

or "personality disorder," within the meaning of the SDP

statute, the Commonwealth is not limited to those mental

conditions enumerated and defined in the DSM.       See Commonwealth

v. Husband, 82 Mass. App. Ct. 1, 4-5 (2012), and cases cited.

Of course, this does not prohibit Commonwealth experts from

relying on the DSM; indeed, given the authoritative stature that

the DSM enjoys in the medical community, it is hardly surprising

that many experts would base their opinions on that source.

Where, as here, the Commonwealth experts did just that, it is

fair and appropriate to hold them to this, and the cases that

the majority cites are not to the contrary.3       When the


       3
       Commonwealth v. Reese, 438 Mass. at 520, was an appeal
from a judge's finding of no probable cause after a hearing
                                                                   7


Commonwealth's case is predicated upon a specific expert

diagnosis of pedophilia as defined in the DSM, a lack of

evidence of one of the definitional criteria may not be excused.

Otherwise, the Commonwealth would be relieved of its burden of

proving the underlying facts on which its expert's diagnosis was

based.   See Narducci v. Contributory Ret. Appeal Bd., 68 Mass.

App. Ct. 127, 135 (2007) (noting the distinction between an

expert's ultimate conclusion and the "assumed" facts, which must

be proved, on which the opinion is based).

    As the majority also accurately notes, the 1971 victim was

well under the age of consent regardless of whether she was

prepubescent.   Therefore, the state of her anatomical

development is irrelevant for purposes of determining whether a

crime had been committed.   However, whether Souza committed a

crime and whether his actions show that he suffered from a

particular "mental abnormality" are distinct questions.    The

DSM-IV does not classify an adult's attraction to anatomically

developed but still underage adolescents as a "mental



under G. L. c. 123A, § 12(c). The Supreme Judicial Court
explained that at least in that context, the Commonwealth's
expert could rely on clinical observations and experience
independent of the DSM criteria to make a diagnosis of
pedophilia. Id. at 525-526. Reese thus involved a situation in
which the Commonwealth's expert explained that he was not
resting his diagnosis on the DSM-IV. Reese does not say that
where an expert relies on the DSM-IV at trial, the Commonwealth
is excused from producing evidence that the DSM-IV criteria have
been met.
                                                                        8


abnormality."4   While the Commonwealth's experts could have

sought to explain why they considered Souza as suffering from

"pedophilia" apart from the definition in the DSM-IV, they did

not do so.5

     The question remains whether the Commonwealth in fact

offered sufficient proof that the victim of the 1971 crime was

prepubescent.    Although the DSM-IV notes the unremarkable fact

that prepubescent children are "generally age 13 or younger," it

of course does not define prepubescence in those terms.      It does

not follow, except through false logic, that someone who is

thirteen or younger therefore must be prepubescent.       Even if the

judge credited the defense experts' definition of prepubescence

(instead of leaving that question to the jury), her ruling does

not depend on this.    The overriding point is that the

Commonwealth failed to offer the proof that its own experts'

theory of Souza's alleged "mental abnormality" demanded.

Finally, to the extent that the majority concludes that Souza's

     4
       That is hardly surprising given that, as Judge Smith of
the New York Court of Appeals trenchantly has observed in
writing for a three-judge dissent, "the idea that a man's mere
attraction to pubescent females is abnormal is absurd." Matter
of State of N.Y. v. Shannon S., 20 N.Y.3d 99, 111 (2012) (Smith,
J., dissenting).
     5
       I recognize that lay jurors presumably would consider
Souza a "pedophile" within the far broader everyday use of that
term. But that underscores the constitutional concerns raised
by allowing experts to untether their opinions from the stricter
definitions accepted by the medical community as to what
constitutes a "mental abnormality."
                                                                       9


isolated references to the 1971 victim as "little" could

constitute proof beyond a reasonable doubt that she was

prepubescent, I disagree.

       With the facts necessary to support the experts' diagnosis

of pedophilia not having been put in evidence, the experts'

opinion on that point cannot be used to avoid a directed

verdict.       See LaFond v. Casey, 43 Mass. App. Ct. 233, 237-238

(1997).6      As we recently said, an expert opinion "premised on

facts that [the expert] had gratuitously assumed and conjecture

drawn from an insufficient evidentiary foundation . . . [is]

inherently flawed and legally incompetent."       Commonwealth v.

Acosta, 81 Mass. App. Ct. 836, 843 (2012).

       To be sure, the Commonwealth's failure to establish that

Souza was properly classified as a pedophile does not mean that

it cannot prove that he is an SDP.      The majority is correct that

the case law makes clear that proof that someone suffers from

"antisocial personally disorder" (APD) by itself can be

"adequate to satisfy the definitional requirements of" being an

SDP.       Commonwealth v. Reese, 438 Mass. at 526 n.9.   In other

words, where the Commonwealth has proven APD, there is no

threshold requirement that it prove a second medical condition.

       6
       See also Patterson v. Liberty Mut. Ins. Co., 48 Mass. App.
Ct. 586, 592-593 (2000), and cases cited (an expert's opinion
must be "based solely on the expert's 'direct personal
knowledge' or admissible evidence in the record and not on
assumptions that are not established by such evidence").
                                                                   10


However, it does not follow that a diagnosis of APD, without

more, constitutes sufficient proof.   This is especially true

where, as here, the experts testified that it was the very

combination of pedophilia and APD that caused the undue risk of

sexual dangerousness (thus making proof of both prongs

critical).

    A close examination of the Commonwealth's use of APD

evidence here reveals why it did not amount to sufficient proof.

To demonstrate that Souza currently suffers from APD, the

Commonwealth's experts relied principally on his obstreperous

behavior while confined at the treatment center.   Granted,

Souza's comportment during his decade of confinement was hardly

exemplary.   However, his documented violations of Massachusetts

Treatment Center (treatment center) rules averaged only about

two per year, and they mainly involved minor infractions such as

trying to get medication at an incorrect time, "[f]ailure to

stand for a [head] count, sleeping during a count, [and] things

of that nature."   Notably, none of Souza's violations of

treatment center rules involved any inappropriate sexual

behavior.    Compare Commonwealth v. Husband, 82 Mass. App. Ct. at

5 ("Commonwealth experts testified that [sex offender's]

personality disorder resulted in his inability to control his

sexual impulses as evidenced by both the governing offenses and
                                                                  11


his extensive record of sexually aggressive and abusive conduct

while incarcerated").

     Moreover, as the trial judge cogently observed, even though

proof that someone has APD may be sufficient to satisfy the

statute's definitional requirements, this does not relieve the

Commonwealth from having to prove that Souza currently has

sexual compulsions on which his APD will induce him to act.

Absent such proof, Souza cannot constitutionally be preventively

detained.   Passing over the question of whether there was

adequate proof that Souza ever suffered from sexual compulsions

that likely would cause him to reoffend,7 evidence that he

continued to have such compulsions at age sixty-nine was

conspicuously absent.   In fact, the Commonwealth did not present

any evidence that Souza exhibited sexually inappropriate

behavior of any kind since 1990.8   In addition, the only


     7
       This is not a case where the historical pattern of sex
offenses itself demonstrated that the offender must have
suffered from such compulsions.
     8
       Obviously, opportunities for sexual misbehavior may be
more limited for someone who is confined, but they are hardly
absent. Compare Commonwealth v. Husband, 82 Mass. App. Ct. at 2
(noting a sex offender's disciplinary record while incarcerated,
in which "[h]is reported conduct toward prison female medical
personnel included sexual epithets, insults, taunts, threats,
exposure, and masturbation"). Moreover, as the evidence in this
case revealed, sex offenders who target children sometimes
exhibit sexually inappropriate behavior in confinement, such as
hoarding pictures of children. There was even testimony about a
pornography ring operating inside the treatment center; Souza
was not implicated in any such activity.
                                                                     12


objective test administered to Souza by the treatment center

showed that he exhibited no clinically significant arousal to

any of the sexual stimuli presented to him.9

     Nor do I believe the other factors the Commonwealth's

experts relied upon supplied the missing proof.   Both of the

Commonwealth's experts emphasized Souza's refusal to admit his

past sexual abuse of the two victims, something they asserted

was a prerequisite to his being able to avoid reoffending.     For

example, in Tomich's view, Souza could not progress to the point

that he safely could be released until he "squarely face[d] the

reasons for his incarceration and for his civil commitment."

Even to the extent Souza denied his offenses,10 the import of


     9
       Kelso discounted the results of the penile plethysmograph
(PPG) test, even while acknowledging that respected empirical
researchers had concluded that the best predictor of recidivism
was sexual deviancy, as measured by PPG tests or other means.
This is not to say that the reliability of PPGs has been
established, and one of Souza's own experts stated that he does
not put much stock in such tests. However, the fact remains
that the one test that the treatment center itself administered
to Souza to measure his response to sexual stimuli provided no
evidence to support the Commonwealth's case and, if anything,
undercut that case.
     10
       The uncontested facts belie any suggestion that Souza has
accepted no responsibility for his two sex offenses. Indeed,
Souza pleaded guilty to both offenses. In addition, even though
his postplea accounts of the 1971 offense have varied somewhat,
he has regularly admitted that he had intercourse with the 1971
victim while she was underage and that what he did was wrong.
Granted, although Souza pleaded guilty to having indecently
touched the 1990 victim, he denied sexually assaulting the boy
in his postplea accounts. Souza was also indicted of rape of a
child, something he consistently denied. The Commonwealth nol
                                                                  13


that denial is, at a minimum, subject to significant doubt.     The

Commonwealth's lead expert acknowledged that a pre-eminent

empirical study found no correlation between denial and

recidivism.   In the face of that study, the Commonwealth offered

no empirical studies or evidence of a medical consensus to

support its contrary position that denial is somehow a predictor

of future offending.11

     More generally, the Commonwealth's experts insisted that

the risks Souza presented to the community at large should be

considered unacceptable until he has completed a treatment

program at the treatment center.   That view presupposes both

that Souza presents unacceptable risks without treatment and

that treatment would address such risks.   Neither proposition is

self-evident, and one searches in vain for evidence to support


prossed the rape charge (after Souza's admitted that he touched
the boy's penis), and it made no independent effort to
substantiate that Souza had committed a rape. Nevertheless, the
majority goes out of its way to highlight salacious details
underlying the rape allegations even though the Commonwealth
itself appropriately avoided the issue.
     11
       I fully appreciate that the Legislature has made the
opinions of QEs admissible in SDP trials regardless of whether
they have been demonstrated to be reliable, and that this
situation-specific modification of the rules of evidence has
been upheld. See Commonwealth v. Markvart, 437 Mass. 331, 339
(2002), citing G. L. c. 123A, § 14(c). However, especially in
light of the overlaying constitutional concerns that are
implicated, I do not interpret such precedent as barring any
judicial inquiry into whether the opinion of the QE enjoys a
demonstrated medical foundation. That inquiry need not embroil
a trial judge in making credibility determinations or "weighing"
the evidence.
                                                                  14


them here.12   In fact, the evidence that was presented tended to

undercut the Commonwealth's case.   For example, the treatment

center itself ruled out one form of treatment -- behavioral

conditioning -- given Souza's nonresponsiveness to sexual

stimuli as measured by the PPG test.13   The experts' reliance on

Souza's failure to complete a treatment program is particularly

problematic in light of the undisputed fact that Souza has

profound cognitive limitations that, at a minimum, make it

difficult for him to complete a classroom course of study.14     Cf.


     12
       The experts' stance on the need for treatment is better
understood as a policy position than as evidentiary proof. That
the experts would adopt such a position is consistent with the
institutional roles that each played. Kelso was an employee of
the private contractor that provided sex offender services at
the treatment center, and Tomich was the director of forensic
psychological services at the Department of Correction.
     13
       Kelso, the Commonwealth's lead expert, acknowledged that
a preeminent empirical study demonstrated only a minor
correlation between treatment and recidivism. Again, the
existence of that study did not preclude the Commonwealth from
proving that Souza's failure to complete a treatment program
mattered, but, again, the Commonwealth offered no empirical
studies or evidence of medical consensus to substantiate its
position.
     14
       It is undisputed that Souza is of borderline
intelligence, with an IQ measured between sixty-eight and
seventy-one. Treatment center records show that he is able to
read at a third-grade level. Kelso acknowledged that Souza's
cognitive limitations presented potential obstacles to his
succeeding in the treatment classes made available to him, and
Tomich acknowledged that Souza's cognitive limitations meant
that "it may take him longer to benefit from treatment." There
was evidence that programs tailored for people with Souza's
limitations were "sometimes offered" at the treatment center,
that at least one treatment component was modified to address
                                                                  15


Kansas v. Hendricks, 521 U.S. at 389-393 (Breyer, J.,

dissenting) (Sex offenders cannot be civilly confined without

being offered adequate treatment).   In addition, it is

undisputed that Souza's efforts to pursue sex offender treatment

were interrupted when his participation was suspended as a

disciplinary sanction for his not complying with treatment

center rules.   In other words, for acting out while he was

involuntarily confined based on his allegedly not having

received adequate treatment, the Commonwealth withheld the

treatment that it considered necessary to allow his release.

    Finally, I address the Commonwealth's one attempt to take

on Souza's advanced age with empirically-based proof.     Kelso

relied in part on the "Static-99R" model, a widely-used tool

that attempts to predict the degree of likelihood that a

convicted sex offender will reoffend.   As Kelso explained, the

Static-99R model was specifically formulated to address the

reduction in risk correlated with the aging process.     However, a

close examination of Kelso's use of the Static-99R model shows

that it provides negligible support for his position that Souza

remains an SDP.   Kelso accepted that Souza had been married, and

he acknowledged that his long-term relationship with his wife

may well have lasted more than two years.   Kelso also



those limitations, and that he was able to pass that one (and a
"few" classes overall).
                                                                   16


acknowledged that if this were so, then by Kelso's own

calculations, Souza would score only a five on the Static-99R

test, which would place him outside the category of offenders

considered to be at a high risk to reoffend.15   None of this is

to say that a sex offender may be found to be an SDP only if he

scores in the high risk category using the Static-99R model.     My

point is merely that Kelso's own reliance on empirically-based

modeling undercut his claim that Souza was currently at a high

risk to reoffend.

     In sum, in my view, the trial judge applied appropriate

scrutiny to the expert opinions that the Commonwealth offered

and -- finding them lacking in adequate foundational support --

properly terminated the proceeding and ordered Souza's release.

In the face of the Commonwealth's efforts to portray its case as

adorned in the raiments of medical expertise, the trial judge

dared to point out that "the emperor has no clothes."16


     15
       Kelso   was able to score Souza that high only by crediting
him with six   1971 sex crimes, even though five of the six New
York charges   were dropped, and there was no independent evidence
presented in   this trial that Souza had committed those crimes.
     16
       Because I consider a retrial unwarranted, I would not
reach the Commonwealth's claim that the jury instructions were
erroneous. I state no view on the merits of that issue except
to note that while I agree with the majority that a narrow
reading of Johnstone, Petitioner, 453 Mass. 544, 553 (2009),
does not compel the instruction that the trial judge gave, that
instruction does find some support in the reasoning on which
Johnstone is based. Clarification from the Supreme Judicial
Court on this point of law would be beneficial.
