Opinion
19-P-1399
11-17-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526523 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an evidentiary hearing before the Sex Offender Registry Board (board), John Doe was classified as a level 2 (moderate risk) offender. A Superior Court judge affirmed the board's decision and entered judgment accordingly. We affirm.
Background. In 2002, Doe's friend and his three children, including the friend's eight year old daughter, temporarily came to stay with Doe in Rhode Island in Doe's motor home. On a certain night the friend awoke to see Doe, his pants down, kneeling next to the friend's unclothed, sleeping daughter and touching her vagina. Doe then began masturbating. The friend confronted Doe, who stated that he, Doe, was just setting an alarm clock. In 2004 Doe pleaded no contest in Rhode Island to second degree child molestation sexual assault, which, Doe concedes, is a like Massachusetts sex offense of indecent assault and battery of a child under fourteen. See G. L. c. 265, § 13B. Doe received a four-year suspended sentence with probation.
The facts are taken from the hearing examiner's decision.
Beyond his index offense, Doe has a significant nonsexual criminal history, most recently pleading no contest in 2012 and 2013 to charges of domestic assault and battery and credit card fraud, respectively. Doe also has a significant history of alcohol and substance abuse, although the hearing examiner found that such abuse was not implicated in Doe's 2002 index offense. Doe committed his 2002 index offense when aged fifty; at the time of the board's hearing Doe was sixty-seven. After considering the applicable high-risk, risk-elevating, risk-mitigating, and other applicable factors, the hearing examiner concluded that Doe presented a "moderate risk for sexual reoffense and a moderate degree of dangerousness."
See 803 Code Mass. Regs. § 1.33(3) (2016) (adult offender with child victim, factor given increased weight).
See 803 Code Mass. Regs. § 1.33(7) (extrafamilial victim, factor applied); § 1.33(9) (history of alcohol and substance abuse, factor given moderate weight); § 1.33(10) (contact with criminal justice system, factor applied); § 1.33(11) (violence not related to sexual assaults, factor applied); § 1.33(13) (noncompliance with community supervision, factor given moderate weight); § 1.33(16) (offense committed in public place or where observation is likely, factor applied); and § 1.33(18) (extravulnerable victim, factor applied).
See 803 Code Mass. Regs. § 1.33(29) (offense-free time in community, factor applied); and § 1.33(30) (advanced age, factor applied).
See 803 Code Mass. Regs. § 1.33(37) (other useful information consisting, in this case, of submitted scholarly articles, not given "much weight as they contain similar research as noted in the Board's regulatory factors").
Discussion. 1. Expert witness motion. The hearing examiner denied Doe's motion for expert witness funds, essentially concluding that Doe had not carried his burden to "explain how [Doe's alleged depression and treatment therefor] is connected to [Doe's] risk of reoffense or level of dangerousness." 803 Code Mass. Regs. § 1.16(4)(a)(1) (2016). See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe No. 89230) ("the decision whether to grant an individual sex offender funds for an expert is a discretionary one, to be based on the facts presented in an individual case"). Doe suggests that the hearing examiner abused his discretion in so concluding. We disagree.
While Doe adequately established that he has been diagnosed with depression and has been prescribed fluoxetine -- the generic name for the brand name drug Prozac -- as treatment, he did not identify any relationship between that condition or treatment and his risk profile. Notwithstanding, for example, that Doe claimed a "simple Internet search reveals that Fluoxetine . . . has common side-effects including 'decreased sex drive, impotence or difficulty having an orgasm,'" Doe made no attempt to demonstrate -- whether by affidavit, through medical records, or even by argument (either here or below) -- that he in fact experienced these supposed side effects. Nor did Doe attempt to explain how his particular condition or treatment side effects, if any, may have constituted helpful information when assessing Doe's sexual recidivism risk or degree of dangerousness. Instead, in his motion Doe merely identified scholarly articles pertaining, insofar as we are able to tell on the record before us, to different medical conditions and treatments and asserting in conclusory fashion that Doe's "mental illness" therefore is "relevant in determining [Doe's] risk of re-offense and degree of dangerousness."
The articles identified in Doe's motion have not been included in the present record on appeal.
Doe thus failed to articulate the reason or reasons that his alleged condition or circumstance may be "connected to [Doe's] risk of reoffense or level of dangerousness." 803 Code Mass. Regs. § 1.16(4)(a)(1). At best, Doe made only a general motion "to retain an expert to provide an opinion on the sex offender's risk of reoffense," a motion that presumptively "would appear to be insufficient." Doe No. 89230, 452 Mass. at 775. On the record before us, we discern no abuse of the hearing examiner's discretion.
2. Application of regulatory factors. Without challenging the hearing examiner's subsidiary findings or suggesting that the hearing examiner considered inapplicable or inappropriate matters, Doe suggests that the hearing examiner improperly weighed or balanced certain admittedly applicable regulatory factors. Doe concedes, for example and as the hearing examiner found, that he has "multiple drug and alcohol offenses on his criminal record," but contends that the hearing examiner inappropriately applied moderate weight to this factor because, as the hearing examiner also specifically found, alcohol or substance abuse was not implicated in Doe's index offense. Similarly, Doe concedes, as the hearing examiner found, that his "criminal record establishes a number of convictions for violent conduct" but nonetheless suggests that because "the record is void of any police reports from the incidents . . . the hearing examiner could not have satisfied his responsibility to evaluate the severity of the[se] events."
Doe likewise argues not that the hearing examiner improperly deemed applicable those factors arising from his index offense, such as factor (3) (adult offender with child victim, to which the hearing examiner applied "increased" weight), but that the hearing examiner gave undue weight to those factors essentially because that offense took place some considerable number of years before Doe's administrative hearing and, thus, those factors no longer fairly reflect Doe's present risk profile. Again, Doe does not argue that the hearing examiner failed to consider and give full weight to factors (29) (offense-free time in the community) and (30) (age at time of hearing), which the hearing examiner did, but that the hearing examiner should have afforded those factors even greater, perhaps dispositive, weight. In a similar vein, Doe suggests that the hearing examiner should have given greater attention than he did to Doe's submitted scholarly articles, which, as relevant here, are statistical studies addressing the effect of increasing age and offense-free time in the community on recidivism, matters already fully reflected in factors (29) and (30).
It is within a hearing 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). Because Doe was classified as a moderate risk sex offender, the hearing examiner was obliged to -- and did -- find by clear and convincing evidence that Doe presents a moderate risk to reoffend and a moderate degree of dangerousness. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 93 (2019) (Doe No. 523391). Our review is limited to determining whether the hearing examiner's findings are "unsupported by substantial evidence or [are] 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) (Doe No. 10800).
Guided by these general principles, we are satisfied that substantial evidence supports the hearing examiner's decision. Doe No. 10800, 459 Mass. at 632 ("Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion" [quotation omitted]). Although a more fulsome explication is always more desirable, we are satisfied that the hearing examiner properly considered the applicable regulatory factors and acted within his discretion when weighing those factors and ultimately concluding that Doe presented as a moderate risk offender. It is for the hearing examiner, not for us, to consider and weigh the multiple factors that serve to inform the classification calculus. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 143-144 (2019) (Doe No. 23656). Thus, provided the hearing examiner's choices do not "fall[] outside the range of reasonable alternatives" such as to constitute a "clear error of judgment," L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted), we will uphold those choices. On this record we conclude that the hearing examiner's choices fall within the range of reasonable alternatives.
3. Internet publication. In Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019) (Doe No. 496501), the Supreme Judicial Court determined that an offender may be classified as moderate risk only if the hearing examiner, among other things, explicitly finds that "Internet access to [the] offender's information might realistically serve to protect the public against the risk of the offender's sexual reoffense." Here, the classification was adjudicated before Doe No. 496501 was issued, and while the hearing examiner determined, as noted above, that Doe presented a moderate risk of reoffense and dangerousness, the hearing examiner did not make any explicit findings that a public safety interest would be served by Internet publication.
Nonetheless, "even 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. Such is the case here where the record shows that Doe, at an age where dangerousness and recidivism generally declines, sexually abused an extravulnerable, prepubescent child to whom he was not related, thereby suggesting both that Doe presents atypically and that his potential victim pool is broad. The offense took place in a location and under circumstances where observation not only was likely but in fact took place, thereby suggesting that Doe is unable or unwilling to control his sexual impulses notwithstanding social constraints. Although Doe has not since his 2004 index conviction been found to have committed another sex offense as defined, see G. L. c. 6, § 178C (definition of sex offense), Doe has continued to exhibit violent or antisocial behavior; among other things, as noted above, Doe pleaded no contest to domestic assault and battery charges as recently as 2012 and credit card fraud in 2013.
In these circumstances, we conclude that the underlying facts of this matter dictate a finding that Internet publication would serve a public safety purpose by enabling members of the public, particularly children, to avoid encountering Doe. See Doe No. 23656, 483 Mass. at 145-146. See also Doe No. 496501, 482 Mass. at 655 ("Where a sexually violent offender presents a moderate risk to reoffend and a moderate degree of dangerousness, Internet publication will almost invariably serve a public safety interest by notifying potential victims of the risks presented by the offender in their geographic area"). We need not remand for further findings.
Judgment affirmed.
By the Court (Massing, Singh & Grant, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 17, 2020.