Opinion
18-P-519
01-15-2020
John DOE, Sex Offender Registry Board No. 523480 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The petitioner (Doe) appeals, pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M, from a decision of a Superior Court judge affirming the Sex Offender Registry Board's (board) decision ordering him to register as a level two sex offender. In this appeal, Doe argues that (1) the hearing examiner (examiner) abused his discretion by treating Doe, who was eighteen years old at the time he vaginally and anally raped a fifteen year old girl whom he met on social media, as an adult when applying the regulatory factors, (2) the classification was not supported by substantial evidence, and (3) the examiner did not separately consider whether public dissemination of Doe's information will serve a public safety interest. We affirm.
Discussion. An agency decision should be set aside only if a court determines that the decision is "unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). Our review of the judge's decision is de novo, but our review of the underlying agency decision is more limited. See Doe No. 523391, supra at 88-89. We must "give due weight to the experience, technical competence, and specialized knowledge of the agency." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013). We are confined to the administrative record. See Doe No. 523391, supra at 88.
1. Application of regulatory factors to Doe as an adult. Doe maintains that the examiner abused his discretion by "mechanical application" of a high risk factor (factor 3 -- adult offender with a child victim) and a risk aggravating factor (factor 12 -- behavior while incarcerated) to Doe as an adult, despite expert testimony that mentally he presented more like an adolescent. Doe did not raise this argument before the Superior Court judge; thus, this issue is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal").
At oral argument, Doe's counsel stated that this issue was implicitly raised. Having reviewed the record below, we conclude that it was not. Doe's argument before the Superior Court centered on his challenge to whether there was substantial evidence supporting his classification without any particular focus on Doe's current argument regarding Doe's cognitive development.
Even if Doe had preserved this argument, the result would be no different. The board's regulations define a juvenile as "[a]n individual younger than 18 years old at the time of committing a sex offense." 803 Code Mass. Regs. § 1.03 (2016). Doe was eighteen years old when he committed the index offense, and twenty-three years old at the time of his classification. Accordingly, the examiner properly applied the regulatory factors. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 629 (2011) (Doe No. 10800 ) ("A properly promulgated regulation ‘has the force of law ... and must be accorded all the deference due to a statute" [citation omitted] ).
To the extent Doe challenges the examiner's rejection of his expert's opinion that he presented like an adolescent (at age twenty-three, when she evaluated him), the examiner was not required to adopt the expert's opinion. See Doe No. 10800, 459 Mass. at 637 ("The opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even where the board does not present any contrary expert testimony"). See also Wyatt, Petitioner, 428 Mass. 347, 360 (1998) (jury not bound to accept opinions of witnesses).
On appeal, Doe submitted several articles concerning "borderline age offenders." These were not provided to the examiner and thus are not properly a basis for reversing the examiner's decision. See Doe 523391, 95 Mass. App. Ct. at 88 (our review confined to administrative record).
Contrary to Doe's argument, the examiner did not dismiss the expert's opinion simply because she did not consider all of the regulatory factors. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 136 (2019) (Doe No. 23656 ). In fact, the examiner agreed with her that Doe did not pose a "high risk." The examiner carefully considered the expert's assessment that Doe posed an "average risk to recidivate," and her opinion concerning the "lack of evidence for elevated sexual deviance," giving some weight to the "tests and tools" the expert used "as a general indicator of risk of reoffense."
Moreover, while the examiner rejected the expert's application of the factors as if Doe were a "juvenile" in view of the regulation requiring the examiner to treat Doe as an adult, it is clear that the examiner weighed Doe's age at the time of the index offense, the three year difference between Doe and the victim he raped, the fact that they did not have a consensual relationship, that the rape took place in a public place, and that Doe admitted to "going after someone who was 15." In doing so, the examiner did not act arbitrarily, abuse his discretion, or otherwise commit an error of law.
As the board noted, the expert's opinion stemmed, at least in part, from Doe's self-reported responses on the Personality Assessment Inventory (PAI), which the expert acknowledged "likely did not represent an objective view" of Doe's clinical picture and "suggested that [Doe] may not have been fully forthcoming with his answers."
2. Substantial evidence. The plaintiff next contends that his classification was not based on substantial evidence. As set forth in the examiner's thorough analysis, the index offense was a rape that Doe committed against a fifteen year old girl, whom he had met on social media. He admitted targeting her because she was only fifteen years old. The rape took place in a public park. Following the rape, which included both vaginal and anal penetration, he bragged to a friend about "bang[ing] a chick." He has a long history of substance abuse, and received four disciplinary reports while incarcerated. Although he has attended a sex offender treatment program, he was temporarily suspended therefrom but requested and was allowed to reenter treatment. Nonetheless, he continues to minimize the rape, referring to it as a "manipulated" consensual encounter. His family also continues to minimize or deny the rape; thus, the support system they provide is not positive. He has no probation violations.
"Substantial evidence" is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014), quoting G. L. c. 30A, § 14 (7) (e ).
Carefully reviewing this record, the examiner found seven aggravating factors and four mitigating factors to be applicable; he provided a full explanation for each based on evidence in the record and indicated the amount of weight given to each of those factors. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (examiner has "discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor").
On appeal, in addition to his claim that the examiner did not give his expert sufficient weight, Doe contends that the examiner erred by giving three factors too much weight. Specifically, he maintains that the examiner erred by giving each of factor seven (relationship between offender and victim), factor nine (alcohol and substance abuse), and factor sixteen (public place) full aggravating weight. The record shows that the relationship was extrafamilial, Doe has an extensive history of substance abuse, and the rape occurred in a public park. The weight to give these factors was for the examiner.
As set forth supra, the examiner did not simply reject the expert testimony.
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3. Internet dissemination. The examiner found that Doe's moderate risk of reoffense and moderate degree of dangerousness "warrants dissemination of his personal information." He did not, however, make separate and explicit findings in support of this element. See Doe No. 496501, 482 Mass. at 657. Nevertheless, on the record before us, we need not exercise our discretion to remand for further findings on this element. See Doe No. 23656, 483 Mass. at 145-146.
Doe vaginally and anally raped a fifteen year old girl with whom he had become familiar through social media, the rape occurred in a public park, he admitted that he specifically targeted her because she was only fifteen, and he bragged about doing so thereafter. Doe (and his family) continue to minimize the rape. Public availability of Doe's information would enable members of the public to take precautions to avoid encountering Doe, especially residents with minor children who could use the information to supervise their children's online activities.
Judgment affirmed.