Opinion
19-P-1364
11-02-2020
John DOE, Sex Offender Registry Board No. 525866 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level two sex offender. We affirm.
Background. Doe received a final classification as a level two sex offender in August 2018 stemming from a conviction of possession of child pornography involving a fourteen to fifteen year old boy (victim 1). Over approximately three months in 2016 Doe, employed as a school bus monitor, induced victim 1 to send him photographs, including at least one photograph of the boy's exposed erect penis. Doe's communications with the boy were both in person and over the Internet using PlayStation 3 and Skype. Following his plea, Doe was placed on probation.
After Doe's arrest, a seventeen year old autistic boy (victim 2) and his mother reported to the police that in December 2015, Doe asked victim 2 to send him photographs. The victim, also a passenger on the school bus where Doe worked, sent at least one photograph of his penis to Doe. Doe also communicated with victim 2 over the Internet using Skype. Although Doe was not criminally charged, the examiner concluded that Doe "did in fact sexually offend against" victim 2.
The hearing examiner's decision. The examiner found several high risk and risk aggravating factors applied, including that: Doe's behavior was repetitive and compulsive, 803 Code Mass. Regs. § 1.33(2) (2016), as Doe offended against two victims; both victims were children, 803 Code Mass. Regs. § 1.33(3) ; Doe was in a position of trust with respect to both victims, 803 Code Mass. Regs. § 1.33(7), which posed a heightened danger "because [Doe] violate[d] the Victim[s'] and public's sense of trust, safety, and security"; Doe, an adult man, offended against minor male victims, 803 Code Mass. Regs. § 1.33(17) ; Doe offended against an extra vulnerable autistic victim, 803 Code Mass. Regs. § 1.33(18), a condition that both "renders a victim more susceptible or unable to effectively defend himself" and "compromises his ... ability to effectively report the abuse or provide testimony in court"; Doe committed separate offenses against multiple victims, 803 Code Mass. Regs. § 1.33(22) ; and that, although Doe's conviction was for a noncontact offense, Doe had an increased risk of reoffense because his offenses consisted of online exchanges of explicit communications or pornographic images with minors, 803 Code Mass. Regs. § 1.33(36).
The examiner found several mitigating factors applicable to varying degrees, including that: Doe is subject to community supervision, 803 Code Mass. Regs. § 1.33(28) ; he participated in sex offender treatment and has received favorable comments from his providers, 803 Code Mass. Regs. § 1.33(32) ; and Doe demonstrated some level of community support and stability, 803 Code Mass. Regs. §§ 1.33(33) & (34), including continuing employment and "sustained sobriety." After considering and balancing the factors, the examiner concluded that, at the time of hearing, Doe presented "a moderate risk to reoffend and a degree of dangerousness to the public such that a public safety interest is served by public access to his sex offender registry information."
Discussion. 1. Consideration of the police report. Doe claims that the examiner improperly considered hearsay contained in a police report pertaining to victim 2. An examiner has discretion to admit and give probative effect to hearsay if "it is the kind of evidence on which reasonable persons are accustomed to rely on in the conduct of serious affairs." 803 Code Mass. Regs. § 1.18(1) (2016). The hearsay must "bear[ ] sufficient indicia of reliability" in the sense that it is "plausib[le] and consisten[t] [with] the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like" (quotations and citations omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391 ). "Common indicia of reliability include a detailed account, ... the consistency of the hearsay incident with other, known behavior, ... admissions by the offender, ... and independent corroboration." Id.
Here, the examiner relied on victim 2's statements to the police, and those of his mother. The statements included specific dates, details of the inducements Doe used, the type of photographs Doe wanted, and descriptions of the actual photographs provided and how they were taken. The police report "relates a detailed and plausible incident of sexual [misconduct]." Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 78 (2015). See also Doe No. 523391, 95 Mass. App. Ct. at 90-91. There was no error.
2. Subsidiary findings. Doe also challenges many of the subsidiary facts found by the examiner, including that victim 2 was autistic and that Doe offended against him. Our review is limited to whether the examiner's 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. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). Contrary to Doe's assertion, "[s]ubsidiary facts [as found by an examiner] underlying the ultimate disposition ... need not be supported by [clear and convincing evidence]." Doe No. 523391, 95 Mass. App. Ct. at 92. Instead, "we ... recognize that subsidiary facts must be proved only by a preponderance of the evidence, although the appropriateness of the classification must be proved by clear and convincing evidence." Id. Here, there is ample support in the record for the examiner's subsidiary findings and they are supported by substantial evidence. See Doe No. 523391, 95 Mass. App. Ct. at 93-94.
3. Dangerousness findings. Doe observes that the examiner found that he "poses a moderate risk to reoffend," but did not make a specific finding that he poses a "moderate degree of dangerousness." See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 651 (2019) (Doe No. 496501 ). At the time of the hearing, the examiner did not have the benefit of Doe No. 496501. However, we need not remand the case if "the underlying facts ... clearly dictate the appropriate classification level." Id. at 657 n.4. We conclude that they do.
Doe offended against two different, unrelated male victims. One victim was fourteen to fifteen years of age and the other was an extra vulnerable autistic minor boy. The offenses involved minors and the use of the Internet; the board has determined that those who offend under such circumstances "generally pose a higher degree of dangerousness than those who limit their offending behavior to child pornography." 803 Code Mass. Regs. § 1.33(36)(a)(2). Additionally, the examiner explicitly found that Doe posed a moderate risk of reoffense. Consequently, we are satisfied that the facts dictate a finding that Doe poses a moderate degree of dangerousness.
4. Internet dissemination. Doe claims that the examiner did not adequately establish that Internet publication "might realistically serve to protect the public against the risk of [Doe's] sexual reoffense." Doe No. 496501, 482 Mass. at 655. Here, we have no difficulty concluding that Internet publication would enable members of the public, particularly vulnerable teenaged boys who may spend considerable time online and who may lack the physical and mental strength to resist an offender and thereby be more easily lured by an offender's inducements, to avoid encountering Doe. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145-146 (2019) (Doe No. 23656 ).
5. Application of regulatory factors. As to Doe's final argument that the examiner misapplied numerous regulatory factors, as discussed supra, the subsidiary findings are supported by the record and constitute substantial evidence. Moreover, Doe's argument reduces to the weight that the examiner gave to factors. It is within an examiner's discretion "to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). "[O]ur review of a hearing examiner's decision does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, but only whether a contrary conclusion is not merely a possible but a necessary inference" (citation omitted). Doe No. 23656, 483 Mass. at 143-144. Here, we discern no such necessity or other error that might cause us to second guess the examiner's discretionary choices.
Judgment affirmed.