Opinion
19-P-1700
02-25-2021
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524339 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
The plaintiff, John Doe, appeals from his classification as a level three sex offender by the Sex Offender Registry Board (SORB). Doe argues that the hearing examiner (examiner) erred in the application of several of SORB's risk factor regulations, and that the level three classification was not established by clear and convincing evidence. We affirm.
Background. The examiner found that Doe, then aged twenty-six, began sexually assaulting the victim when she was twelve years old. The abuse continued for approximately one year, occurring between February or March 2010 and March 2011. During this time, Doe was living with the victim and her family. The victim stated that Doe sexually assaulted her between five and ten times. The assaults took place in the victim's bedroom and in the residence's living room. In an attempt to stop Doe from assaulting her, the victim started to sleep in the living room with her younger brother. However, Doe continued to sexually assault her, even while her brother was asleep next to her.
Prior to the end of the abuse, the victim turned thirteen years old.
In 2014, the victim participated in a Sexual Assault Intervention Network (SAIN) interview and disclosed Doe's sexual abuse. Doe later admitted to police that he lived with the victim and her family during the time of the assaults, he stayed in the living room at night while the victim and her younger brother slept there, and he used "crack cocaine," ecstasy, and heroin during the period the assaults occurred. Doe denied sexually assaulting the victim. On August 25, 2016, Doe was convicted of five counts of indecent assault and battery on a child under fourteen. He was sentenced to three years of incarceration followed by a term of probation.
Doe was originally charged with one count of indecent assault and battery on a child under fourteen and three counts of statutory rape of a child; the rape charges were amended to charges of indecent assault and battery on a child under fourteen.
On or about November 2, 2016, SORB notified Doe of his obligation to register as a level three sex offender pursuant to G. L. c. 6, § 178K (2) (c). Doe requested, and was granted, an administrative hearing to challenge SORB's preliminary classification. On July 18, 2018, SORB classified Doe as a level three sex offender. The examiner determined, by "clear and convincing evidence," that Doe "presents a high risk of reoffense and a degree of dangerousness to the public such that a substantial public safety interest is served by active dissemination of his sex offender registry information." Doe sought judicial review of that decision in the Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. A Superior Court judge denied Doe's motion for judgment on the pleadings and affirmed SORB's classification of Doe as a level three sex offender. This appeal followed.
Discussion. "An agency decision should be set aside only if a court determines 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. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). Our review is de novo, see Doe No. 523391 , supra at 89, although "we 'give due weight to the experience, technical competence, and specialized knowledge of the agency.'" Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 741 (2019) (Doe No. 22188 ), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013).
1. Risk factors. Doe contends that the hearing examiner erred in the application of certain risk factors. See 803 Code Mass. Regs. § 1.33 (2016). An 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 ).
Doe argues that the examiner erred in giving full weight to high-risk factor 3 (adult offender and child victim) because the evidence did not warrant the finding that the victim was prepubescent. See 803 Code Mass. Regs. § 1.33(3)(a) ("Offenders who target prepubescent children, generally younger than [thirteen] years old . . . pose an even higher risk of reoffense and degree of dangerousness and are given greater weight"). Although the victim's birthdate is redacted in the record, the SAIN report states that the assaults occurred "during the time the victim was twelve (12) year[s] of age (time frame indicates the victim would be 12 [at the] start of the sexual abuse and turn 13 prior to it ceasing)." Because the victim was twelve years old when the sexual abuse began, the examiner was warranted in finding, per the regulation, that the victim was a prepubescent child for at least part of the abuse. See 803 Code Mass. Regs. § 1.33(3)(a) (prepubescent children are "generally younger than [thirteen] years old"); Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 219, 222-223 (2020) (Doe No. 390261 ) (full weight given to factor 3 when "assaults on the victim start[ed] at age seven and continu[ed] 'through her remaining prepubescent years' until she was fifteen years old"). There was no error. See Doe No. 523391 , 95 Mass. App. Ct. at 92 ("subsidiary facts must be proved only by a preponderance of the evidence").
The record does not support Doe's argument that the victim had attained puberty because she had developed "breasts."
Doe next challenges the examiner's application of risk-elevating factor 16 (public place). The examiner applied factor 16 after finding that "[s]ome of the sexual assaults occurred in the living room, on a mattress, while the Victim was next to her younger brother who was asleep" and that Doe had "no expectation of privacy during those times." Doe contends that for an area to be a "public place" it must be both (1) "maintained for or used by the public" and (2) "open to the scrutiny of others or where there is no expectation of privacy." 803 Code Mass. Regs. § 1.33(16)(a). We disagree. "The regulations specifically define 'public place' to include 'any place that is open to the scrutiny of others or where there is no expectation of privacy.'" Doe No. 390261 , 98 Mass. App. Ct. at 225, quoting 803 Code Mass. Regs. § 1.33(16)(a). Where Doe "sexually assaulted the victim in the presence of the victim's brother while the brother was sleeping in the same bed" his behavior could have been observed and reported. See Doe No. 390261 , supra. This misconduct was committed "in a place where detection [was] likely," reflecting Doe's "lack of impulse control." 803 Code Mass. Regs. § 1.33(16)(a). There was no error.
Doe asserts that the examiner failed to consider noticed authority related to factor 16. There is nothing to indicate that the examiner refused to consider the article that Doe cites, upon which SORB relied in formulating 803 Code Mass. Regs. § 1.33(16)(a). There is also no merit to Doe's underlying argument. While the article provides examples of "public places," nothing suggests that it is intended to be an exhaustive list or that a living room could not qualify as a "public place." See Epperson, Kaul, Huot, Hesselton, Alexander, Goldman, Minnesota Sex Offender Screening Tool Revised (MnSOST-R) (2000).
In light of our conclusion, we need not address whether the Superior Court judge's rationale in affirming the examiner's factor 16 finding was erroneous.
Doe argues that the examiner erred in applying risk-elevating factor 9 (alcohol and substance abuse). We disagree. Doe admitted to police that he was using "'crack cocaine,' ecstasy, and heroin" during the time of the abuse. Based on this admission, the examiner was warranted in finding "that [Doe's] substance use during the same time period as his sexual offending was a contributing factor" that implicated factor 9. See 803 Code Mass. Regs. § 1.33(9)(a) ("Factor 9 applies when the sex offender has a history of substance abuse, demonstrates active substance abuse, or when the offender's substance use was a contributing factor in the sexual misconduct").
Doe next argues that the examiner erred by failing to apply risk-mitigating factors 32 and 34. Doe contends that the examiner failed to consider materials submitted to demonstrate Doe's stability in the community including that he was a "hard worker," he was active in church, and that he is a "wonderful father to his children." See 803 Code Mass. Regs. § 1.33(34)(a). However, because Doe was incarcerated at the time of the hearing, his postincarceration behavior and lifestyle was merely "anticipated." Furthermore, the examiner did consider these materials in his application of risk-mitigating factor 33 (home situation and support systems) where he found that the letters showed Doe "has a number of people in his life who admire his positive qualities" and that his wife is "willing to provide him with the support he needs." We discern no error or abuse of discretion in the examiner's determination not to apply factor 34. See Doe No. 68549 , 470 Mass. at 109-110. Likewise, the examiner did not err in finding that risk-mitigating factor 32 (sex offender treatment) did not apply where Doe failed to produce minimally adequate documentation demonstrating his completion of sex offender treatment. See 803 Code Mass. Regs. § 1.33(32); Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 530 (2020).
In light of this conclusion, we again need not address Doe's arguments pertaining to the Superior Court judge's decision.
Doe contends that the examiner's decision to give "full weight" to factor 2 (repetitive and compulsive behavior), 803 Code Mass. Regs. § 1.33(2)(a), was error because Doe did not engage in sexual misconduct after having been charged with or convicted of a sex offense. We agree. "[T]he regulation permits SORB to give highest weight to this factor only when the sex offender reoffends after being 'charged with or convicted of a sex offense.'" Doe No. 22188 , 96 Mass. App. Ct. at 741, quoting 803 Code Mass. Regs. § 1.33(2). Here, the examiner gave "full weight" to factor 2 because Doe sexually assaulted the victim "on multiple occasions" and had the time and opportunity to "reflect on the wrongfulness of his conduct." However, there was no intervening charge or conviction of a sex offense during the period of abuse. See Doe No. 22188 , supra at 742. Because there was error, we "excise from the hearing examiner's determination any reliance on" the full weight of factor 2 and "we review what remains to determine whether substantial evidence existed to classify Doe as a level [three] sex offender." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 142 (2019) (Doe No. 23656 ). We turn now to that analysis.
2. Level three classification. Doe contends that the examiner made no explicit findings for the required elements of a level three classification. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019) (Doe No. 496501 ) (examiner must make distinct and explicit findings for each required element of classification and each element must be established by clear and convincing evidence). While no separate findings were made here, we are satisfied on the record before us that the examiner's determination that clear and convincing evidence supported a level three classification is supported by substantial evidence. See Doe No. 23656 , 483 Mass. at 138 n.9 (declining to exercise discretion to remand for separate and explicit findings). "[E]ven the complete elimination of factor [2] from the hearing examiner's assessment [does] 'not sufficiently upset the balance of factors to modify the ultimate sex offender classification determination.'" Doe No. 390261 , 98 Mass. App. Ct. at 227, quoting Doe No. 23656 , 483 Mass. at 142 n.14. Compare Doe No. 22188 , 96 Mass. App. Ct. at 744 (improper weighing of only applicable high-risk factor, in combination with evidentiary error, required new hearing).
The elements include: (1) the offender's risk of reoffense; (2) the offender's dangerousness; and (3) "whether and to what degree public access to the offender's personal and sex offender information, pursuant to G. L. c. 6, § 178K, is in the interest of public safety." 803 Code Mass. Regs. § 1.20(2)
Doe sexually assaulted the prepubescent victim, who was not related to him, over the course of a year. Doe himself admitted to using "crack cocaine," ecstasy, and heroin during this period of abuse. See 803 Code Mass. Regs. §§ 1.33(3), (7)(a)(2), (9). While the record supports the application of risk-mitigating factors 28 and 33, the examiner's determination that Doe poses a high risk of reoffense is supported by substantial evidence.
Doe argues that the examiner's finding that Doe "raped the victim multiple times" is clearly erroneous where Doe was not convicted of rape. The examiner's finding is based on the victim's description of the assaults contained in the police reports. See Doe No. 523391 , 95 Mass. App. Ct. at 89 ("A hearing examiner is not bound by the rules of evidence . . . , [and] may admit and give probative effect to that evidence [on] which reasonable persons are accustomed to rely in the conduct of serious affairs" [quotations and citations omitted]). These reports, which the examiner found were reliable, provided an adequate basis for the examiner to "properly [find] by a preponderance of the evidence" that Doe raped the victim. Id. at 93. See Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 758 & n.10 (2021). There was no error.
Doe's sexual abuse of the prepubescent victim, including digital and oral penetration to the victim's vagina as well as forcing her to perform fellatio on him, constituted substantial evidence to support a finding by clear and convincing evidence that Doe poses a high degree of dangerousness. See 803 Code Mass. Regs. §§ 1.33(3), (19). Again, applicable risk-mitigating factor 28 does not outweigh this determination.
Finally, the examiner found that Doe's sex offender registry information should be actively disseminated, but did not make separate findings in support of this element. "Nonetheless, because 'the underlying facts of the case . . . so clearly dictate the appropriate classification level,' we do not exercise our discretion to remand for further findings on this element." Doe No. 23656 , 483 Mass. at 145, quoting Doe No. 496501 , 482 Mass. at 657 n.4. Active dissemination of Doe's sex offender registry information, pursuant to G. L. c. 6, § 178K (2) (c), will notify "potential victims of the risks presented by the offender in their geographic area." Doe No. 496501 , 482 Mass. at 655.
The judgment affirming the SORB's decision to classify Doe as a level three sex offender is affirmed.
So ordered.
By the Court (Neyman, Henry & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 25, 2021.