Opinion
18-P-1563
05-13-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524004 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
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 crediting unreliable hearsay from police reports; and (3) in classifying Doe as a level three sex offender where the board failed to carry its burden of proof by clear and convincing evidence. We affirm.
Background. In 2004, prior to the index offenses, Doe was charged with two counts of rape and one count of indecent assault and battery, based on Doe's alleged sexual assault of his then-girlfriend's mother (Victim 1). The offenses involved vaginal penetration, digitally and with his penis, and grabbing her breast. In January 2005, the charges were nolle prossed.
In 2016, Doe pleaded guilty to the index offenses: two counts of indecent assault and battery on a child under fourteen. The victim (Victim 2), a nine year old girl, was the daughter of Doe's girlfriend at the time. Doe lived in their family home and took care of Victim 2 while her mother was at work. On multiple occasions, Doe masturbated to erection in the presence of Victim 2 and then rubbed his penis against her vagina. He also digitally penetrated her vagina.
Before the hearing, Doe moved for funds to retain an expert to support his claim that his relationship with Victim 2 was intrafamilial. With the motion, Doe submitted an affidavit of his proposed expert, describing what type of evidence the latter would consider when evaluating an offender's relationship with a victim. The examiner denied the motion without prejudice, and later denied Doe's renewed motion, ruling that board regulations already clearly distinguish between intrafamilial and extrafamilial victims. See 803 Code Mass. Regs. § 1.33(7) (2016).
In his final decision, the examiner found, based on Victim 1's "credible, reliable and detailed" statements to the police, that Doe had sexually assaulted her multiple times. In light of these and the index offenses, the examiner found that factor 2 (repetitive and compulsive behavior), a high-risk factor, was fully applicable. He also found factor 3 (adult offender with child victim), factor 7 (extrafamilial relationship between offender and victim), and factor 19 (level of physical contact) applicable as risk-elevating factors. The examiner applied multiple risk-mitigating factors, but found that they did not "offset the many aggravating" factors. As a result, the examiner found by clear and convincing evidence that Doe presented a high risk to reoffend and a high degree of dangerousness. He also found that Doe's offenses and other factors warranted active dissemination of Doe's personal information.
Discussion. A level three classification must be based upon clear and convincing evidence that Doe's "[1] risk of reoffense is high and [2] the degree of dangerousness posed to the public is such that [3] a substantial public safety interest is served by active dissemination (community notification) of sex offender registry information." 803 Code Mass. Regs. § 1.03 (2016). See 803 Code Mass. Regs. § 1.20(2) (2016) (hearing examiner shall determine [1] offender's risk of reoffense, [2] offender's degree of dangerousness, and [3] degree to which public access to offender's personal and sex offender information is in interest of public safety). See also Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019) (Doe No. 496501 ). 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 argues that the examiner erred in denying his motion for funds for an expert to support his claim that, even though he and Victim 2 had lived in the same household "for less than two years prior to the offending behavior" and thus did not have an "intrafamilial" relationship as defined in the board's regulations, his family member substitute relationship with her was nevertheless intrafamilial. See 803 Code Mass. Regs. § 1.33(7)(a)(2) (2016). 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 has a bearing on his classification. Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). In considering the need for an expert, it bears mentioning that the board's detailed classification regulations are based on the board's expertise and that the examiner must be guided by those regulations in classifying individual offenders. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 786 (2006).
Here, we see no error or abuse of discretion in the examiner's denial of the motion. Unlike past decisions in which the board has been required to consider expert testimony or studies challenging a regulatory factor's stated applicability to an offender or group of offenders, here, Doe's proposed expert, Dr. Robert Joss, was not recognized as an "authority" by board regulations, nor did his affidavit rely on any studies or authorities that postdate the board's 2016 regulations. Cf. Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 603-604, 609-610 (2013) (board had to consider studies, and expert testimony about how they might apply to offender, because studies both [1] were written by expert who regulations themselves recognized as "authority," and [2] postdated regulations and called them into question); Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 743-744 (2019) (board had to consider testimony of board-acknowledged "authority" that post-dated and called into question board's regulation). Similarly, Doe's motion for funds relied on studies and authorities that neither postdate nor challenge the board's 2016 regulations.
Moreover, and in any event, there is no evidence in the record, either from Doe or his proposed expert, Dr. Joss, or anyone else, that any of the factors Dr. Joss mentioned in his affidavit have any particular relevance to Doe's relationship with Victim 2. See 803 Code Mass. Regs. § 1.16(4)(a)(1) (2016). Nor did Dr. Joss say, even as a general matter, that based on those factors, a relationship of less than two years could be considered "related."
Dr. Joss's affidavit stated that, in evaluating the relationship between an offender and a child victim, he would consider not only how long they had lived in the same household, but also the relationship of the child to the offender before moving in, the way in which the child addressed the offender (e.g., "father"), the offender's participation in daily activities involving the child, and the way the child's mother referred to the offender vis-à-vis the child. Neither Dr. Joss's nor Doe's affidavit provided any information about how any of these factors might apply to Doe's relationship with Victim 2, let alone whether they might apply in a manner suggesting that Doe had a closer familial relationship with Victim 2 than indicated by the less than two-year length of their relationship taken alone.
2. Hearsay in police report. Doe next argues that, because Victim 1's hearsay statements in police reports were not substantially reliable, the examiner erred in considering them. "In the context of administrative proceedings, hearsay evidence bearing indicia of reliability constitutes admissible and substantial evidence." Doe No. 10800 , 459 Mass. at 638. We have also used the phrases "sufficient indicia of reliability" and "substantially reliable." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). "Factors that the examiner should consider include '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., quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 78 (2015) (Doe No. 356011 ).
That the charges regarding Victim 1 were nolle prossed "does not render the report inadmissible or unreliable." Doe No. 356011 , 88 Mass. App. Ct. at 79. "Examiners have been permitted to consider other instances of conduct that did not result in a conviction." Id. See Doe No. 10800 , 459 Mass. at 638 (allowing consideration of hearsay statements in police report although offender "neither admitted to nor was convicted of" alleged offense).
Nor are we persuaded by Doe's other arguments that Victim 1's statements were insufficiently reliable. First, the examiner was not required to accept Doe's speculation that Victim 1 had a motive to lie or was otherwise not credible. If the case was nolle prossed because Victim 1 did not wish to proceed, she could have made that decision for a variety of reasons unrelated to her credibility.
Doe suggested that the case was too weak to prosecute and was nolle prossed because he had filed a Bishop motion for access to Victim 1's mental health records, which he contends would have shown she could not be believed. See Commonwealth v. Bishop, 416 Mass. 169 (1993).
Second, the police report statements were detailed, plausible, internally consistent, and corroborated in part by police observations of a bruise that Victim 1 stated Doe caused during the assault. They were also consistent with Victim 1's affidavit in support of her request for a G. L. c. 209A order, which was signed under the penalties of perjury and sufficed to persuade the judge in that case to issue and extend the order.
For all of these reasons, the examiner did not abuse his discretion in admitting, crediting, and relying upon Victim 1's statements as included in the police reports. See Doe No. 496501 , 482 Mass. at 656 ("a hearing examiner may consider subsidiary facts that have been proved by a preponderance of the evidence").
3. Insufficient evidence by clear and convincing standard. Doe argues that the examiner's decision was not supported by substantial evidence. To satisfy the substantial evidence requirement for a board classification, the evidence must be "clear and convincing." Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). "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.
Here, Doe specifically argues that the examiner abused his discretion in giving only minimum mitigating weight to factor 34 (stability in the community). See 803 Code Mass. Regs. § 1.33(34) (2016). The examiner's main concern was that Doe was living with two convicted sex offenders and a family with two young children. One of the children was "very similar in age and sex to Victim 2." Doe argues that it was unreasonable for the examiner to give this factor such minimal weight, where there was no evidence that Doe's probation officer had expressed concern about his living situation, and where an affidavit from the children's mother indicated her awareness of Doe's sex offenses and stated that he abided by the probation condition prohibiting unsupervised contact with children.
Doe also asserts that the examiner improperly weighed factor 2 (repetitive and compulsive behavior), factor 7 (extrafamilial relationship between offender and victim), and factor 19 (level of physical contact). Doe argues that these factors were all based on Victim 1's hearsay statements, which Doe claims were inadmissible. Because we have rejected that claim, we need not discuss further the applicability of these factors.
We see no prejudicial error or abuse of discretion. The examiner was not bound by any presumption that Doe's probation officer was aware of his living situation and had determined that it created no risk of reoffense or danger to others. The examiner was entitled to reach his own conclusions on these issues. The examiner reasonably took into account that Doe had not yet begun sex offender treatment as required by his probation conditions, and that there was no indication in Doe's housemates' affidavits of how they would ensure the safety of the children in the house. See Doe No. 68549 , 470 Mass. at 109- 110 (weighing of factors is for examiner).
The examiner did not explain the precise nature of his concern about Doe living with two convicted sex offenders. He may have thought that they would be more tolerant of any possible slide by Doe toward recidivistic behavior. On the other hand, Doe argues that registered sex offenders have limited housing options. Doe suggests that to consider their living together as raising their risk of reoffense would deter them from living together and possibly render more offenders homeless, further increasing that very risk. The examiner did not address this issue. We need not decide whether the sex offender status of Doe's housemates could properly be considered as detracting from the mitigating weight given to factor 34, because the examiner gave other, valid reasons for giving factor 34 less than its usual mitigating weight. We are unpersuaded that any error in this regard materially affected the examiner's decision or otherwise prejudiced Doe's "substantial rights." G. L. c. 30A, § 14 (7). See Boston v. Massachusetts Comm'n Against Discrimination, 47 Mass. App. Ct. 816, 819 n.6 (1999) (court should not reverse agency decision unless any error prejudiced party's substantial rights).
Judgment affirmed.
By the Court (Meade, Sacks & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 13, 2020.