COMMONWEALTH vs. DARREN GRANT.

KANTROWITZ, J. The defendant, who was the subject of a petition for civil commitment as a sexually dangerous person, exposed himself to girls as young as twelve and women as young as fifty-one. He exposed himself near a subway station; on the way to therapy; while on probation; while in prison; and, in the underlying case giving rise to this petition, to two fifteen year old girls in a public library. Occasionally, he also masturbated openly. Despite five psychologists all opining he was likely to reoffend, [Note 1] the trial judge held that the Commonwealth failed to prove its case, in that it did not demonstrate that the defendant, who had committed only noncontact offenses, was dangerous. We reverse.

Background. The defendant, thirty-one years of age at the

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time of trial, was first convicted of open and gross lewdness at the age of sixteen. Including this juvenile offense, the defendant has been convicted of the same offense eleven times, each time for exposing himself and at times for masturbating in public. In 1997, the defendant was twice convicted of open and gross lewdness -- in one instance, in front of a thirteen year old girl while he was on his way to his therapy appointment. During his incarcerations, the defendant has reoffended, including in 2000 when he exposed himself to a female correction officer. As an adult, he has been convicted of no crime other than open and gross lewdness. As previously mentioned, the victims of the defendant's offenses were females ranging in age from twelve to fifty-one.

On July 31, 2003, the defendant pleaded guilty to, and received a jail sentence for, three counts of open and gross lewdness for exposing himself. The victims included, on one occasion, two fifteen year old girls in a public library; the defendant also exposed himself in the same library on another date. On February 15, 2006, as the defendant's scheduled release approached, the Commonwealth filed a petition pursuant to G. L. c. 123A, § 12, for his commitment as a sexually dangerous person. A two-day jury-waived trial was held in September, 2006. On September 27, 2006, the judge issued findings of fact and rulings of law denying the Commonwealth's petition. The judge found that "[t]he Commonwealth has not met its burden" of establishing that the defendant's conduct "satisfies the dangerousness necessary for a commitment under G. L. [c.] 123A." The judge also noted that there exist "real questions as to when and [to] what extent an exhibitionist causes harm to the public."

On appeal, the Commonwealth claims that the judge improperly added an element to the statutory definition of sexually dangerous person under G. L. c. 123A, § 1, to require the Commonwealth to prove that the defendant is likely to cause physical harm to others if not confined.

The law. For the purposes of this case, in order to find the defendant to be a sexually dangerous person within the meaning of the statute, the Commonwealth had to prove beyond a reasonable doubt that he: (1) was convicted of a sexual offense as

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defined [Note 2]; (2) suffers from a mental abnormality [Note 3] or personality disorder [Note 4]; and (3) as a result of suffering from that mental abnormality or personality disorder, is likely to reoffend if not confined to a secure facility. See G. L. c. 123A, §§ 1, 14(d).

Here, it is not disputed that the defendant was convicted of a covered sexual offense, nor essentially that he is likely to

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reoffend. The sole issue is whether his sexually deviant conduct is a result of either a mental abnormality or personality disorder.

The testimony at trial. Five experts testified, two for the Commonwealth (Dr. Carol Feldman and Dr. Michael Murphy) and three for the defense (Dr. Mark Schaefer, Dr. Joseph Plaud, and Dr. Leonard Bard).

Doctor Feldman testified that the defendant has a personality disorder, as defined by the statute, in the form of an antisocial personality. Doctor Feldman also testified that he suffers from a mental abnormality in the form of exhibitionism. She concluded that "it is reasonable to expect" that the defendant will reoffend. The judge found that Dr. Feldman could not opine as to the seriousness of the harm created by the defendant's noncontact offenses.

Doctor Murphy also testified that the defendant has both a personality disorder and a mental abnormality, given his diagnosis of exhibitionism. He also concluded that the defendant is "highly likely" to reoffend. The judge found that Dr. Murphy, like Dr. Feldman, "was not sure about the seriousness of the harm [that] the defendant's conduct would cause to the public."

Like the Commonwealth's experts, Dr. Schaefer also concluded that the defendant has a personality disorder and a mental abnormality, and that there was a "high likelihood" he would reoffend. However, Dr. Schaefer opined that the defendant, who had not "inflicted a physical injury on [his victims]," was not a sexually dangerous person as he was not "likely to inflict serious harm." [Note 5]

Doctor Plaud testified that the defendant has a mental disorder as defined in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. rev. 2000) (DSM-IV), [Note 6] but that he does not suffer from a "mental abnormality"

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as statutorily defined because exhibitionism, the particular type of mental disorder that the defendant displays, does not make him a menace to the health and safety of others. [Note 7] He also opined that the defendant does not have a personality disorder, in that he does not have an antisocial personality disorder as defined by the DSM-IV. [Note 8] The defendant does not have an antisocial personality disorder, Dr. Plaud concluded, in that his "nonsexual criminal history [is] not supportive of [a] general lifelong pervasive pattern of reckless disregard for the rights of others." He believed that there was a possibility that the defendant would reoffend, committing noncontact offenses.

Doctor Bard testified that the defendant does not meet the statutory definition of mental abnormality because "exhibitionism and other non-contact offenders . . . do not . . . pos[e] a menace to the health and safety of other persons as opposed to other much more serious offenses." [Note 9] Doctor Bard also testified

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that the defendant does not have a personality disorder because he opined that exhibitionism, without any other antisocial actions, is insufficient to constitute a personality disorder. He also believed that "there is a moderate risk that [the defendant] will re-offend," committing noncontact offenses.

Discussion. "The determination of sexual dangerousness is a legal and not a psychiatric question." Commonwealth v. McHoul, 372 Mass. 11 , 15 (1977). All three of the defendant's experts offered improper legal interpretations of the definition of a sexually dangerous person. Dr. Schaefer, for instance, opined improperly on the legal criteria for a sexually dangerous person and imported the definition of "likelihood of serious harm" provided in G. L. c. 123, § 1, and discussed in Commonwealth v. Boucher, 438 Mass. 274 , 278-279 & n.4 (2002), [Note 10] as a requirement of sexual dangerousness in G. L. c. 123A. The G. L. c. 123 definition, which does require physical harm, only applies to commitment proceedings under G. L. c. 123. See G. L. c. 123, § 1. Doctor Bard improperly interpreted the statutory language of G. L. c. 123A, § 1, to require comparison of the relative seriousness of harm inflicted from contact and noncontact offenses, despite no indication in the language of the statute to do so. Doctor Plaud improperly excluded exhibitionism from the class of conditions that may render a person sexually dangerous, stating that he did not believe that exhibitionism "is the type of sexual behavior that defines what a sexually dangerous person is."

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The judge, in large part, adopted the opinion of the defense experts, ruling that the defendant was not a sexually dangerous person because the Commonwealth could not meet its burden of proving the defendant's danger to the public where the defendant's only offenses were noncontact offenses. [Note 11]

The judge and defense witnesses needlessly addressed an issue already resolved. The Legislature, in enacting G. L. c. 123A, § 1, has already determined that one who has been convicted of open and gross lewdness, and who as a result of either a personality disorder or mental abnormality is likely to reoffend, is a sexually dangerous person. Holding that the Commonwealth was required to prove anything more was improper. [Note 12] When interpreting a statute, the court must "not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design." Commonwealth v. McLeod, 437 Mass. 286 , 294 (2002).

Danger, which includes the concept of "menace," to others, as it relates to the definition of sexually dangerous person, is comprehensive and encompasses not only physical injury, but also psychological, mental, and emotional trauma as well. See McHoul, petitioner, 445 Mass. 143 , 155 (2005), cert. denied, 547 U.S. 1114 (2006). The Legislature "made no statutory distinction between classes of injuries likely to be inflicted on

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future potential victims if the [defendant] were released into the community." Id. at 154-155.

It follows from what we have said that the judge misinterpreted the meaning of harm as it relates to sexually dangerous persons. By including open and gross lewdness, a noncontact offense, as an enumerated sexual offense for the purpose of defining the term "sexually dangerous person," the Legislature clearly intended sexually dangerous persons to include those who commit noncontact offenses. The fact that the defendant committed only noncontact offenses does not immunize him from being classified as a sexually dangerous person. [Note 13] One who, as a result of a mental abnormality or personality disorder, has repeatedly exposed himself to adolescent girls and women in the past and is likely to do so in the future may pose a menace to the health and safety of others. [Note 14]

In sum, the judge erred in adding an additional element to the statutory definition of sexually dangerous person. The amended judgment and order of discharge entered on October 6, 2006, is vacated and the matter is remanded for the judge to apply the principles addressed herein. See Commonwealth v. Boucher, 438 Mass. at 281 (vacating lower court's decision to dismiss petition where judge applied "erroneous interpretation [of G. L. c. 123A, § 1,] to the evidence at trial").

So ordered.