Opinion
21-P-85
03-07-2022
John DOE, Sex Offender Registry Board No. 247684 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
John Doe appeals from a Superior Court judgment affirming the decision of the Sex Offender Registry Board (board) classifying him as a level two (moderate risk) sex offender. See G. L. c. 6, § 178K (2) (b ). Doe argues that (1) the hearing examiner's decision was not supported by substantial evidence because it relied upon impermissible hearsay; (2) the application of certain risk factors was arbitrary and capricious; and (3) the hearing examiner erred in failing to consider community supervision as a risk-mitigating factor. For the reasons that follow, the judgment is vacated, and a new judgment shall enter remanding the matter to the board for further proceedings consistent with this decision.
Background. In 2016, Doe was adjudicated as a youthful offender on two counts of rape and abuse of a child in violation of G. L. c. 265, § 23. According to a Lawrence police report, the victim, who was fourteen years old at the time, had been communicating with Doe, who was seventeen, for over a year on Facebook. In November of 2014, instead of going to school, the victim went to Doe's house, where he snuck her into his bedroom. At first, the two began kissing one another, but then Doe attempted to pull down the victim's pants. The victim told him to stop. Despite her pleas to stop, the defendant penetrated the victim's vagina with both his finger and his penis. Doe believed the victim was fifteen and was unaware that she was too young to consent to sexual intercourse. Doe admitted to sufficient facts and was committed to the Department of Youth Services (DYS) until his twenty-first birthday. Thereafter, he was subject to a suspended State prison sentence of four years to four years to be served from and after his DYS sentence.
In support of its argument for a level two classification, the board introduced the following documentary evidence: police reports; DYS records; a clinical assessment and history update; court docket sheets; criminal complaints; updated board of probation and interstate identification index records; and an affidavit for a restraining order. Doe submitted six letters from community members attesting to his character and maturity, and a friend testified on his behalf.
The hearing examiner considered all of this evidence and applied ten high risk or risk-elevating factors: factor 2 (repetitive and compulsive behavior); factor 4 (first sexual misconduct occurred at age eleven); factor 7 (extra-familial victims); factor 9 (history of substance use); factor 10 (contact with criminal justice system); factor 11 (other violent non-sexual assaults); factor 13 (non-compliance with community supervision); factor 16 (offense occurred in public); factor 19 (high level of physical contact); and factor 22 (multiple victims). The board also applied two risk-mitigating factors -- factor 33 (home situation and support system) and factor 34 (stability in the community) -- and concluded that Doe should be classified as a level two sex offender.
Discussion. On review, we will not disturb the board's decision unless the classification decision was "(a) in violation of constitutional provisions; (b) in excess of the [board's] authority; (c) based upon an error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts found by the court, where the court is constitutionally required to make independent findings of fact; or (g) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014) (Doe No. 68549 ), citing G. L. c. 30A, § 14(7). When reviewing the classification decision, we "give due weight to [the board's] experience, technical competence, and specialized knowledge ... as well as to the discretionary authority conferred upon it" (citation omitted). Doe No. 68549 , supra at 109.
In order to classify a person as a level two sex offender, the board must make "three explicit determinations by clear and convincing evidence: (1) that the risk of reoffense is moderate; (2) that the offender's dangerousness, as measured by the severity and extent of harm the offender would present to the public in the event of reoffense, is moderate; and (3) that a public safety interest is served by Internet publication of the offender's registry information." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 644 (2019).
1. Admission of hearsay evidence. In determining Doe's risk to reoffend, the hearing examiner considered a 2008 police report, which described an alleged sexual assault by Doe on an eleven year old girl. Based on those allegations Doe was charged with indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B. Doe denied the allegations, and the charges were ultimately dismissed for lack of prosecution. Doe claims that the hearing examiner's consideration of this evidence was arbitrary and capricious because it was unreliable hearsay.
According to the police report, the victim and Doe were eleven years old at the time and attending the same school. Doe was outside in the schoolyard handing out Tic Tac candies to other school children. The victim asked Doe for candy and placed her hand out. Doe said, "[L]ook and suck it," and grabbed her hand and placed it on his pants in the area of his penis. The next day, when the victim wouldn't engage in a fight with Doe, he told her to "suck it."
The victim's brother was interviewed by police and confirmed that he saw Doe place his sister's hand on Doe's "private area." Doe told the police that the victim wanted a piece of gum, and he told her no. According to Doe, the victim tried to grab the gum from him, but Doe pulled away and then he put his hand on his private part and told the victim to "suck it."
As an initial matter, it is well established that the board can consider evidence of prior misconduct that does not result in a conviction. See Doe, Sex Offender Registry Bd. No 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015). In addition, hearsay evidence, even multiple level hearsay, can be considered so long as it has "indicia of reliability." See Doe, Sex Offender Registry Bd. No 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312 (2007). Such evidence "may be admissible ... depending on the general plausibility and consistency of 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." Id. at 312-313.
Here, the victim's report was close in time to the incident and sufficiently detailed. It was also corroborated by the victim's brother, who observed the first incident. While Doe denied some of the behavior, he admitted telling the victim to "suck it" as he touched his "private parts." Considering these circumstances, the hearsay evidence was sufficiently reliable, and there was no error in its admission by the hearing examiner.
2. Application of high risk and risk-elevating factors. Next, Doe argues that even if the hearsay evidence in the police report was admissible, the hearing examiner acted arbitrarily and capriciously in the application of several regulatory factors. The factors "are illustrative and permissive -- an examiner has broad discretion over how he or she chooses to apply them." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012) (Doe No. 136652 ). However, application of a particular factor must be supported by the record and accompanied by reasoned explanation. See id. at 651-652. The decision must ultimately "show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex." Id. at 651. Doe relies heavily on Doe No. 136652 in arguing that the board failed to adequately explain how sexual misconduct that occurred over ten years before the hearing, when Doe was prepubescent, applied to his current risk to reoffend.
Doe also notes that, under the current law, he could not be prosecuted for this incident because the law now requires the defendant to be twelve years old in order to prosecute him.
In Doe No. 136652 , the board's classification order was vacated where the hearing officer applied regulatory factors without explaining how they elevated the offender's risk. See Doe No. 136652 , 81 Mass. App. Ct. at 652-656. The board applied then risk factor 3 (adult offender and child victim) without explaining how it applied when the offender was ten years old, and the victim was seven. Id. at 652. In that circumstance we stated,
This factor applied "to both [a]dult and [j]uvenile offenders, but each in a different manner." 803 Code Mass. Regs. § 1.40(3) (2002). As to juvenile offenders, the factor stated that "[j]uvenile [o]ffenders are considered to present a higher risk of reoffense if they have ever intentionally sexually assaulted a prepubescent child." Id. And the board, "recognizing the occurrence of sexual experimentation between similar aged adolescents, shall view the offender who engaged in sexual conduct that, but for the age of the victim, would not have been criminal and the child victim was not less than [thirteen] nor more than [fifteen] years of age and not five or more years younger than the offender at the instant of the offense as possibly presenting a lower degree of dangerousness." Id.
The board's regulations have since been amended to address those deficiencies.
"On its face, that regulation, with its focus on ‘adolescent' sexual experimentation, does not appear to have been written with a ten year old offender in mind. If it was not, then application to the plaintiff was error. If it was, then the [board] has concluded that, for example, a ten year old who offends with a seven year old inherently presents a greater social risk than a seventeen year old who offends with a thirteen year old. The basis for such a conclusion is not, to say the least, intuitively obvious. But the examiner provided no explanation, stating simply that ‘[a]ccording to the [ board's] regulations, juvenile offenders are considered to present a higher risk of reoffense if they have ever intentionally sexually assaulted a prepubescent child’ " (citation omitted).
Id.
Though the factors at issue here are different, we share the concerns underlying the decision in Doe No. 136652 . The hearing examiner failed to explain how an incident that occurred when Doe was prepubescent so substantially affected his present risk. See Doe No. 136652 , 81 Mass. App. Ct. at 656 ("a sound application of [the] factors to derive a true and accurate assessment of an offender's potential for reoffending must take into account the offender's age"). Compare Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 621-623 (2010) (arbitrary and capricious for board to classify Doe without considering evidence on age and recidivism). Consideration of this incident impacted the application of five of ten regulatory factors. To ensure that Doe's level two classification was not the result of "mechanical application of a checklist," some explanation of the basis of applying this factor and the other affected factors was necessary. Doe No. 136652 , supra at 651. The case must be remanded for that purpose.
The issue was well summarized in Doe No. 136652 , where the sexual act at issue was committed by a ten year old in a backyard:
"[A]s any parent knows and as the scientific and sociological studies ... tend to confirm, [a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. ... It is possible, perhaps, that there is some basis for concluding that the nexus between the impetuous and ill-considered action of a ten year old and the extent of his sexual deviance is similar to the nexus between impetuous action and sexual deviance in a mature adult. But that similarity is not obvious. Some explanation was therefore required before that factor was applied to the plaintiff" (citation and quotation omitted).
Doe No. 136652 , 81 Mass. App. Ct. at 655.
3. Failure to consider mitigating factor. Finally, the board concedes that the hearing examiner failed to consider mitigating factor 28 (supervision by probation or parole), but claims the error was harmless because consideration of Doe's probation supervision would not have changed the outcome. In light of our decision, we need not reach that question. On remand, the hearing examiner should consider and apply factor 28 regarding supervision by probation or parole. In the application of factor 28, the hearing examiner may consider all evidence of Doe's community supervision, even if that conduct came after Doe's classification hearing.
Accordingly, the judgment is vacated, and a new judgment shall enter remanding the matter to the Sex Offender Registry Board for further proceedings consistent with this decision.
So ordered.
Vacated