Opinion
19-P-241
04-08-2020
John DOE, Sex Offender Registry Board No. 523719 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification as a level two sex offender by the Sex Offender Registry Board (SORB). We conclude that the SORB hearing examiner's finding that there was clear and convincing evidence that Doe's risk of reoffense and dangerousness are moderate is supported by substantial evidence. Because the examiner did not make a specific finding whether there was clear and convincing evidence that a public safety interest is served by Internet publication of Doe's registry information, however, we remand for findings on that issue.
Background. We summarize the facts as set forth in the hearing examiner's decision, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).
Doe's classification as a level two sex offender stems from a governing sex offense committed in New York. When the victim was sixteen, she reported to a school counselor that when she was between the ages of eleven and twelve years old, Doe -- her mother's boyfriend at that time -- forced her to perform oral sex on him ten times. After the first time, the victim told a friend who was living in the home what happened and the friend confronted Doe; he continued to assault the victim thereafter. The victim also reported that Doe was high on marijuana during multiple occasions of this sexual abuse. Doe pleaded guilty to one count of sexual abuse in the second degree. The crime is a like crime to the Massachusetts sex offense of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. Doe was sentenced to time served and six years of probation.
Doe has a history of substance use disorder. He began using marijuana at age fourteen. While on probation, Doe tested positive for marijuana nine times between 2010 and 2011 and Hydrocodone twice in 2011. He has been diagnosed with cannabis dependence and "alcohol abuse." He was once found with a device that could manipulate the results of random drug screens. In 2010, Doe was convicted of driving while intoxicated, and aggravated unlicensed operation of a motor vehicle in the second degree. In addition to not complying with the terms of his probation concerning the use of drugs and alcohol, in 2015, Doe admitted to his probation officer that he was residing with his current girlfriend and her daughters, aged five and seven, in violation of his probation.
Discussion. a. Standard of review. "A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019), citing G. L. c. 30A, § 14 (7). "We ‘give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ " Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). "Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Doe No. 10800 , 459 Mass. at 632, quoting G. L. c. 30A, § 1 (6).
b. Factor 2. Doe argues that the hearing examiner erred in finding that Doe engaged in repetitive and compulsive behavior as described in SORB's regulations. 803 Code Mass. Regs. § 1.33(2) (2016). Doe argues that SORB did not show that the behavior was compulsive in the sense that it was the product of an irresistible urge.
"Factor 2 applies at its threshold weight any time an offender ‘engages in two or more separate episodes of sexual misconduct’ where there is ‘time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct.’ " Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019), quoting 803 Code Mass. Regs. § 1.33(2). Moreover, SORB may "give increased weight to offenders who have been discovered and confronted (by someone other than the victim) ... and, nonetheless, commit a subsequent act of sexual misconduct." 803 Code Mass. Regs. § 1.33(2). In other words, Doe's argument fails because to be compulsive within the meaning of the factor, the offender need only engage in a second episode of sexual misconduct after having the opportunity between episodes to reflect on the wrongfulness of his misconduct. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 142 (2019) (applying this factor in case of multiple sexual offenses before and after extensive period of incarceration and civil commitment); L.L. v. Commonwealth, 470 Mass. 169, 184 n.26 (2014) ("For example, the judge's attention to the juvenile's two separate assaults and lack of restraint suggests a correspondence with the factor of ‘repetitive and compulsive behavior’ set out in G. L. c. 6, § 178K (1) (a ) (ii) and 803 Code Mass. Regs. § 1.40(2) [2013]"). Doe has made no argument that SORB's decision was in excess of its statutory authority.
Here, the hearing examiner properly gave increased weight to this high risk factor. Not only did Doe commit multiple offenses against a prepubescent girl over the course of at least a year, he continued his behavior after being confronted by another teen in the house after the first such offense.
c. Substantial evidence to support the classification. "A level two classification requires a finding, by clear and convincing evidence, that ‘(1) the offender's risk of reoffense is moderate; (2) the offender's dangerousness is moderate; and (3) a public safety interest is served by Internet publication of the offender's registry information.’ " Doe No. 23656 , 483 Mass. at 138, quoting Doe No. 496501 , 482 Mass. at 656. See G. L. c. 6, § 178K (2) (b ). "Where the SORB regulation itself calls for three separate determinations and where classification decisions affect substantial privacy and liberty interests, we conclude that it is appropriate to require the hearing examiner to make explicit his or her findings regarding each of these three elements, and to make clear that each determination is supported by clear and convincing evidence." Doe No. 496501 , 482 Mass. at 657.
The hearing examiner applied SORB's relevant high-risk, risk-elevating, and risk-mitigating factors to Doe's governing sex offense with varying weight assigned to each factor. The hearing examiner applied high-risk factors for repetitive and compulsive behavior, and for an adult offender with a child victim. The examiner also applied risk-elevating factors including the nonfamilial relationship between Doe and the victim, alcohol and substance use, high level of physical contact, criminal history, and noncompliance with community supervision. The examiner applied risk-mitigating factors such as supervision via probation, offense-free time in the community, home situation and support system, and stability in the community. The examiner also considered articles submitted by Doe regarding determining the risk of reoffense and the degree of dangerousness posed by an offender. After careful consideration of these factors, the examiner found that Doe "poses a moderate risk for sexual re-offense and a moderate degree of dangerousness" and ordered that he register as a level two sex offender.
Doe points to several factors that do not apply to him as proof that he does not pose a high risk to others. The absence of risk factors does not, however, "reduce an offender's risk of reoffense or lower his degree of dangerousness." 803 Code Mass. Regs. § 1.33 (2016). See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 788 (2006) (rejecting plaintiff's argument that inapplicable factors weighed in his favor and noting that "[n]either the statute nor the regulations specify that the inapplicability of a certain factor weighs in favor of an offender").
Doe also contends that the evidence that he has a stable living situation and his full time work outweighs the previously mentioned high-risk and risk-elevating factors. The hearing examiner considered these facts but did not give greater mitigating weight to them because Doe did not provide evidence that his support network knew the extent of his sex offense. As for employment, Doe only submitted proof that he was employed. We discern no error.
d. Internet dissemination. "An offender may not be given a level two classification unless ‘the degree of dangerousness posed to the public’ by the offender ‘is such that a public safety interest is served by public availability of registration information,’ that is, by the availability of registration information on SORB's website." Doe No. 496501 , 482 Mass. at 654, quoting G. L. c. 6, § 178K (2). The examiner must determine "whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety." 803 Mass. Code Regs. § 1.20(2) (2016). "[E]ven where the findings are not explicit, the underlying facts of the case may so clearly dictate the appropriate classification level that a reviewing court may determine that a remand for explicit findings is not necessary." Doe No. 496501 , 482 Mass. at 657 n.4.
In this case, although the hearing examiner believed that Doe "may be seen as a danger to the public," he did not make an explicit factual finding regarding the likely efficacy of publishing Doe's information on the Internet. Doe's sole victim was a child with whom he lived, though they had not lived together long enough to have a familial-like relationship. We are unable to say that facts in the record "clearly dictate" that internet publication serves a public safety interest such that we can decide the matter without remand. Doe No. 496501 , 482 Mass. at 657 n.4.
Conclusion. The judgment of the Superior Court is vacated, and a new judgment shall enter remanding the case to SORB for further findings on whether Internet publication of Doe's registry information serves a public safety interest in accordance with the procedures set forth in Doe No. 496501 , 482 Mass. at 657-658.
So ordered.
Vacated and remanded