Opinion
10-P-1707
02-15-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 5500 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1992, John Doe, an adult, vaginally and anally raped his then fifteen year old sister, who was at the time babysitting for the child of Doe and his wife. The incident occurred over several hours in Doe's glass-enclosed patio while Doe's wife was upstairs and his brother was also in the house. Doe was sentenced to two and one-half years for indecent assault and battery and five to seven years, suspended, with three years of probation from and after his release from incarceration. While on probation, Doe committed various offenses. Eventually, Doe's probation was revoked, and Doe served the balance of his sentence. Upon his release, Doe was informed that he would be required to register as a level three (high risk) offender. After a hearing, an examiner affirmed the level three classification.
The hearing officer therefore properly did not consider him to be living offense-free from 1997 until 2003.
Doe argues, essentially, that the examiner's decision was not supported by substantial evidence; that the examiner misapplied the various factors, and that the facts as properly evaluated indicate that Doe should be required to register as a level one (low risk) offender, or not at all; that the examiner erroneously found that the incident took place in a public place; that the Sex Offender Registry Board (SORB or board) failed to carry its burden by failing to produce expert witness evidence supporting the examiner's conclusion, and the examiner made various factual errors. For substantially the reasons stated in the Superior Court's decision, we affirm.
As explained by the Superior Court judge, the hearing officer properly applied the regulatory and statutory factors, considering both those indicating that Doe had a high risk of reoffending and those mitigating the risk. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 635 (2011). SORB was also not required to submit expert evidence to support its classification in these circumstances, where there was no issue regarding mental abnormality, physical condition, or psychiatric profiles. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 772-773 (2008). 'The plain language of the statute, which uses the word 'may' in relation to the use of expert witnesses in classification proceedings, clearly indicates that the Legislature intended the use of experts to be discretionary, not mandatory.' Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass 779, 785 (2006). Additionally, the hearing officer properly characterized the location of the sex crime as a public place as the patio was 'open to the scrutiny of others,' particularly other family members present in the house that evening. Id. at 789.
The judge does not address the claimed factual errors, but to the extent they are errors as opposed to different characterizations of the same evidence, they are minor and harmless and do not indicate a lack of attention to the substantive issues by the hearing examiner. For example, the examiner found that Doe and his wife returned home on the night of the incident at approximately 2:30 A. M., whereas the police report only states that Doe was at home at approximately 2:30 A. M. (in the kitchen). Doe also complains that the examiner found that the incident took place in the 'kitchen,' whereas the police report indicates that it took place in a glass-enclosed porch connected to the kitchen. There is no question that the hearing officer understood that the offense took place in the glass-enclosed area, the only issue being whether it was a part of the kitchen. Finally, the examiner found the victim removed her clothes instead of her pants and underwear, a distinction without a difference in the instant case.
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Judgment affirmed.
By the Court (Berry, Kafker & Mills, JJ.),