Opinion
20-P-714
08-09-2021
John DOE, Sex Offender Registry Board No. 14117 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming, on judicial review under G. L. c. 6, § 178M, and G. L. c. 30A, § 14, the final decision of the Sex Offender Registry Board (board) classifying Doe as a level three sex offender. Doe argues that the board's hearing examiner erred or abused his discretion (1) in denying Doe's motion for expert funds, (2) in failing to give appropriate weight to various regulatory factors, resulting in a decision unsupported by substantial evidence, and (3) in failing to explain how public dissemination of Doe's information will serve a public safety interest. We affirm.
Background. In 1986, Doe (then thirteen years old) was alleged by his eight year old stepsister (victim one) to have repeatedly raped and indecently assaulted her. Doe was charged with delinquency by reason of rape and abuse of a child under sixteen; he ultimately admitted to sufficient facts and was adjudicated delinquent on a charge of indecent assault and battery on a child under the age of fourteen. He received a probationary term of three years, which he violated, resulting in his commitment to the Department of Youth Services (DYS). Despite Doe's plea to the lesser charge, the hearing examiner found victim one's account to be sufficiently detailed and credible to support a finding that Doe penetrated her mouth and anus with his penis.
Although not argued in Doe's brief, the hearing examiner was not required to accept victim one's recantation, more than thirty years later, of Doe's sex offending behavior toward her.
In 1995, in Florida, Doe (then twenty-one years old) and another man asked a woman (victim two) for a ride in her car. She agreed, but during the ride, Doe told her that she was "pissing him off" and implied he had a gun and that he should "cap" her. Doe told her to park her car in an office complex parking lot, and the two men escorted her to a boat dock. Once there, she was forced to engage in coitus and perform fellatio on both men. The men then gagged and tied her to a pole, took her car, and fled the area. Victim two managed to free herself and contacted the Sheriff's office. Both men were caught and identified as her attackers. Doe was found guilty of two counts of sexual battery with a deadly weapon, corresponding to the Massachusetts offense of aggravated rape. He was sentenced to twenty years of incarceration.
In 2017, having returned to live in the Commonwealth, Doe was initially classified as a level three sex offender. Doe requested and was afforded a de novo evidentiary hearing, after which the hearing examiner found by clear and convincing evidence that Doe should be classified as a level three offender. A Superior Court judge affirmed that decision, and Doe appealed.
Discussion. Our review is limited, and "[w]e reverse or modify the board's decision only if we determine 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. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800 ).
1. Expert funds. Doe asserts on appeal that the hearing examiner abused his discretion in denying Doe's request for funds for an expert to testify about how "Doe's age when he first began offending and the length of time that has passed since he offended [affects] his risk to reoffend and dangerousness," particularly because Doe was forty-four years old at the time of the classification hearing. But Doe did not make such an argument in Superior Court, and therefore it is waived. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983).
In any event, the argument is unpersuasive. An offender seeking expert funds has the burden of showing a need for expert testimony on an issue that is "particular to him, ... is not a matter of common knowledge or experience, and ... ha[s] a bearing on [his] classification." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe No. 89230 ). Here, the board's regulatory risk factors already require that a classification take into account the offender's age at the time of his first sex offense (factor 4), his offense-free time in the community (factor 29), and his advancing age (factor 30). Doe does not explain how these factors do not adequately address the considerations that he raises, and thus he has not identified an issue that is "particular to him," as is required to obtain expert funds. Doe No. 89230 , supra.
See 803 Code Mass. Regs. § 1.33 (4), (29), (30) (2016). Hereinafter we will refer to various classification factors by name and number, it being understood that each of them appears in a corresponding subpart of 803 Code Mass. Regs. § 1.33.
Doe's passing assertion in his appellate brief that when he committed his last offense at age twenty-one, his "brain [was] still developing," does not rise to the level of acceptable appellate argument, and we decline to consider it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See also Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 540 (2014).
Doe further argues that he needed an expert witness to counter the hearing examiner's supposed reliance on "several evaluations conducted on Doe when he was a young teenager," thirty years ago. But the hearing examiner, in denying Doe's motion for expert funds, stated that any ultimate risk opinions contained in such evaluations would be excluded from consideration, and that any other consideration given to the evaluations would take their staleness into account. Doe points to nothing in the hearing examiner's final classification decision that relies on the risk opinions in those stale evaluations. Doe thus has failed to show that he was prejudiced by the denial of funds for an expert to counter such opinions.
The hearing examiner's final decision does note that a 1991 DYS report mentioned that Doe "had been through a sex offenders program ... but that staff did not feel he was ready to graduate," without any further explanation. The hearing examiner thus gave no mitigating weight to factor 32 (offender's participation in sex offender treatment). Doe does not challenge this reliance on the 1991 report or suggest how an expert witness testifying thirty years later could have countered it. Nor does Doe suggest how this report would be significant, given that Doe subsequently committed aggravated rape against victim two.
2. Misapplication of risk factors. Doe next contends that the hearing examiner misapplied or applied inappropriate weight to various risk factors, resulting in a decision unsupported by substantial evidence. In considering these arguments, we keep in mind that "[a] hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (Doe No. 68549 ). "Accordingly, our review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the] agency, ... but only whether a contrary conclusion is not merely a possible but a necessary inference" (quotations and citations omitted). Id. at 110.
a. Factor 7. Doe argues that the hearing examiner erroneously gave full weight to factor 7 (relationship between offender and victim) based on the unsupported assumption that victim two was a stranger, not known to Doe before he committed aggravated rape against her. The hearing examiner relied upon a statement in the Florida arrest report that "[t]he victim met the two defendants [Doe and the other man] at the Pinehurst apartments on today's date when they asked for a ride to the Orange Blossom Trail"; the "[v]ictim agreed and all entered her car with the victim driving." Doe suggests that a reasonable inference from the word "met" is that "the parties already knew each other and had planned to meet at the location on the day in question."
"It is the duty of the hearing examiner to assess the reliability of exhibits introduced in evidence and draw therefrom all reasonable inferences." Doe No. 10800 , 459 Mass. at 638. The examiner makes subsidiary findings using the preponderance of the evidence standard. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 92 (2019). Here, the hearing examiner could reasonably have inferred that the arrest report meant that victim two had first met Doe and the other man on the date of the incident, as a result of their asking her for a ride. It is not our role to second-guess that reasonable inference. The hearing examiner's finding by a preponderance of the evidence that the victim was a stranger to Doe, warranting full risk-aggravating weight under factor 7, was supported by substantial evidence and we will not disturb it.
The hearing examiner also cited Doe's statement, in a letter to the board, that the incident began when "[a]n associate and myself met a female who was looking for cocaine." Although Doe's description of the incident differed from that in the police report, Doe's letter did not state or imply that he knew victim two before they met on the day in question.
b. Factor 16. Doe argues that the hearing examiner erroneously gave full weight to factor 16 (public place) based on the fact that Doe raped victim two at a boat dock located on a lake. Doe claims that he had "attempted to conceal this offending behavior from others" by having victim two "park her car in an office complex parking lot and then they walked to a boat dock," warranting less weight being given to factor 16.
Factor 16 provides that "a ‘public place’ includes any area maintained for or used by the public and any place that is open to the scrutiny of others or where there is no expectation of privacy." 803 Code Mass. Regs. § 1.33(16)(a) (2016). It further provides: "The commission of a sex offense or engaging in sexual misconduct in a place where detection is likely reflects the offender's lack of impulse control. The Board may apply less weight to factor 16 if there is evidence that the offender made a clear and concerted effort to conceal his offending behavior from others." Id. Here, where Doe caused the victim to drive to an office complex parking lot and then walk to a nearby boat dock on a lake, the hearing examiner reasonably inferred that the dock was a place where there was no expectation of privacy. There was no evidence that Doe's taking the victim to a boat dock before he raped her constituted "a clear and concerted effort to conceal his offending behavior from others." We see no abuse of discretion or other error in the application of factor 16.
c. Other factors. Doe also challenges the weight the hearing examiner gave to various other risk-aggravating and risk-mitigating factors, including factors 9 (alcohol and substance abuse), 10 (contact with criminal justice system), 13 (noncompliance with community supervision), 30 (advanced age), 33 (home situation and support systems), and 34 (stability in the community). For each of these factors, we have carefully reviewed Doe's argument, the hearing examiner's explanation of the weight given the factor, and the board's appellate brief. No individualized discussion of these factors is necessary; we see no abuse of discretion in the hearing examiner's weighing of any of them. See Doe No. 68549 , 470 Mass. at 109-110.
3. Internet dissemination. Doe finally contends that the examiner failed sufficiently to determine by clear and convincing evidence, as required by Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019) (Doe No. 496501 ), "whether and to what degree public access to the offender's personal and sex offender information ... is in the interest of public safety." 803 Code Mass. Regs. § 1.20(2)(c) (2016). The hearing examiner addressed this issue only in passing in a phrase at the end of his decision. For classification matters (such as this one) where no sufficient determination was made, and that were pending on judicial review when Doe No. 496501 was released, a remand may not be necessary if the board's "existing findings are sufficiently explicit to enable proper review," or where "the underlying facts of the case ... so clearly dictate the appropriate classification level." Doe No. 496501 , supra at 657 n.4.
"The SORB regulations make clear that the determination of the degree to which public access to an offender's personal and sex offender information is in the interest of public safety must be made ‘in consideration’ of the offender's risk of reoffense and dangerousness." Doe No. 496501 , 482 Mass. at 655, quoting 803 Code Mass. Regs. § 1.20(2). "Determining an individual's degree of dangerousness ... requires a hearing examiner to consider what type of sexual crime the offender would likely commit if he or she were to reoffend. Pragmatically, because past is prologue, a hearing examiner would make this determination based on the sexual crime or crimes that the offender committed in the past." Doe No. 496501 , supra at 651. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 144-146 (2019) (Doe No. 23656 ) (focusing on characteristics of offender's past sex offenses in determining degree of dangerousness and efficacy of Internet dissemination).
Here, Doe committed aggravated rape, including vaginal and oral penetration, against a stranger victim in a public place. Internet dissemination of information about Doe would allow other potential victims to protect themselves against any attempt by Doe to repeat such serious crimes. This is a case where "the underlying facts ... so clearly dictate the appropriate classification level" that a remand is unnecessary. Doe No. 496501 , 482 Mass. at 657 n.4. See Doe No. 23656 , 483 Mass. at 145-146 (where offender had used force to commit contact offenses against stranger victims in public places, value of Internet dissemination was sufficiently clear that no remand to board on that issue was necessary). Contrast Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 528-529 (2020) (ordering remand where offender's offenses were against intrafamilial victims, in places not necessarily open to public scrutiny, leaving it unclear whether Internet dissemination would protect potential future victims).
Judgment affirmed.