Opinion
19-P-823
12-09-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 137033 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 a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. On appeal, Doe argues that the hearing examiner abused his discretion in discrediting certain expert testimony, and claims his classification as a level three offender was unwarranted and against the weight of the evidence. Furthermore, Doe seeks a remand for the failure to include an explicit finding, by clear and convincing evidence, that publication of Doe's registry information on the Internet serves the public's safety interest. For the reasons set forth below, we affirm.
1. Expert testimony. Doe argues that the hearing examiner's failure to properly qualify Dr. Eric Brown as an expert constitutes an abuse of discretion. Doe argues it was improper to refuse to adopt Brown's opinion that Doe possesses only a low risk of reoffense. We disagree.
First, contrary to Doe's assertion, the hearing examiner did state that he would consider Brown's expert opinion "in [its] entirety." However, because Brown's report contained only "scant reference" to the purpose for which he was retained, i.e., to address the effect of Doe's documented mental health issues on his risk of reoffense, the hearing examiner stated that this omission would bear negatively upon Brown's credibility.
Nonetheless, given Brown's background and experience, the hearing examiner found Brown to possess the expertise required for the assessment and treatment of sex offenders. In Brown's assessment of Doe, he found that Doe presented only a low risk of reoffense. However, in this assessment, Brown failed to discuss Doe's pending armed robbery charge because it was not sexual in nature. Furthermore, Brown was completely unaware that Doe had pleaded guilty to both reckless endangerment of a child and accessory after the fact. Brown's assessment of Doe was based solely on the absence of any other "significant prior criminal record of sexual misconduct, as well as [Doe's] favorable relationship with his family." However, unlike Brown, the hearing examiner is undoubtedly permitted to look at Doe's criminal record, and his record of misconduct, beyond just those offenses that are sexual in nature. See 803 Code Mass. Regs. § 1.33(10)-(13) (2016) (hearing examiner may use [1] contact with criminal justice system, [2] violence unrelated to sexual assaults, [3] misconduct while incarcerated, and [4] noncompliance with community supervision, as risk-elevating factors in determining offender's risk of reoffense and degree of dangerousness).
Ultimately, "Doe is not entitled to a guarantee that SORB will reach the same conclusion as his expert." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019) (Doe No. 23656 ). The hearing examiner may consider, yet may also decline to adopt, an expert's conclusions, so long as he explains on the record his reasons for rejecting the expert's testimony. See id. at 136-137. Given Brown's failure to consider Doe's nonsexual criminal offense history, and his failure to address the effect of Doe's documented mental health issues on his risk of reoffense, we find no abuse of discretion in the hearing examiner's decision to give Brown's expert opinion only "limited weight."
2. Doe's classification as level three offender. Doe also claims that the hearing examiner improperly classified him as a level three offender. In particular, Doe argues that the hearing examiner's decision is against the weight of the evidence, as Doe "does not pose a current risk" of reoffense. Furthermore, Doe claims the hearing examiner improperly failed to give mitigating weight to factor 29 (offense-free time in the community) in his classification of Doe. We disagree.
"When analyzing the validity of a decision by [SORB], a reviewing court must determine whether the decision is supported by substantial evidence" (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011). "Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion" (quotation and citation omitted). Id. Ultimately, we give due weight to the experience, technical competence, and specialized knowledge of SORB, and the burden is on Doe to demonstrate the invalidity of SORB's decision. See id.
Here, contrary to Doe's argument that he poses no risk of reoffense, and should therefore be relieved of his obligation to register as an offender entirely, the hearing examiner found by clear and convincing evidence that Doe presented a high risk of reoffense and a high degree of dangerousness to the public. While Doe pleaded guilty to one count of indecent assault and battery on a person age fourteen or older, the hearing examiner found sufficient evidence that Doe forcibly raped the victim. In particular, the hearing examiner found that Doe sexually assaulted the victim, a teenage girl whom he knew, in a public place after she repeatedly told him to stop. Furthermore, the hearing examiner found evidence that while Doe acknowledged his responsibility for his conduct through his plea, he continues to maintain that he does not agree with the entirety of the offense, as the victim allegedly misled him and his family about her age.
The hearing examiner found that between the initial statement to police and the SAIN interview, the victim's statements were sufficiently detailed, consistent, and reliable.
The hearing examiner found sufficient evidence that a high degree of physical contact took place during the sexual assault, warranting full aggravating weight to factor 19 (level of physical contact). See 803 Code Mass. Regs. § 1.33(19) (2016). The assault also occurred in a public place, as it occurred in a car in a cemetery, where Doe undoubtedly had no reasonable expectation of privacy. See 803 Code Mass. Regs. § 1.33(16)(a) (2016) ("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").
In addition to the evidence of the sexual assault itself, the hearing examiner properly considered Doe's "long history of substance abuse involving both a drug related criminal offense and multiple probation violations for drug use." See 803 Code Mass. Regs. § 1.33(9)(a) (2016) ("Substance abuse may increase an offender's risk of reoffense"). Furthermore, two experts expressed concerns that Doe suffers from untreated mental health issues, which contributed to his offenses. Doe's current lack of treatment for his mental health issues is particularly concerning, given that he has often "self-medicated" for such issues in the past with the use of narcotics.
Most importantly, however, Doe's "long, escalating criminal history including non-sexual violent offenses" justifies his classification as a level three offender. See 803 Code Mass. Regs. § 1.33(11)(a) (2016). In particular, in 2011, Doe pleaded guilty to a charge of reckless endangerment of a child and accessory after the fact, for his failure to intervene on a child's behalf as the child was physically assaulted by her mother. The child ultimately died from the injuries sustained in the assault. Furthermore, while incarcerated at the Worcester house of correction on the reckless endangerment charge, Doe was charged with assault and battery for striking an inmate in the head. Doe's record of misconduct while in jail clearly contributes to his high degree of dangerousness, warranting classification as a level three offender. See 803 Code Mass. Regs. § 1.33(12)(a) (2016) ("Poor behavior while incarcerated or civilly committed is an indicator of antisocial behavior. An offender who unsatisfactorily adjusts to the rigors of confinement by violating rules in a highly structured environment presents an increased degree of dangerousness").
Although the charges were subsequently dismissed, the reports of the incident, as well as the accompanying video surveillance evidence, were sufficiently detailed and reliable. Therefore, the hearing examiner could properly consider the assault and battery incident, after finding the facts surrounding the incident to have been proved by a preponderance of the evidence. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019).
While incarcerated for his sex offense, Doe received numerous disciplinary reports, including a disciplinary report for possession of a weapon (sharpened tooth brush) and a disciplinary report for unauthorized possession of a prescription medication.
Most recently, in 2016, Doe was charged with armed robbery, where he robbed a woman of a Nintendo DS video game system in a parking lot. Ultimately, such acts of violence, coupled with Doe's extensive record of misconduct and antisocial behavior, were properly considered by the hearing examiner, and served as substantial evidence of Doe's high risk of reoffense and high degree of dangerousness. See 803 Code Mass. Regs. § 1.33(10)(a) (2016) ("Lawlessness and antisocial behavior correlate with risk of reoffense and degree of dangerousness"). See also 803 Code Mass. Regs. § 1.33(11)(a) ("An offender is more likely to reoffend and present a greater danger if he has previously demonstrated that he can act violently and with no regard to the safety of others").
While not yet found guilty of this offense, the hearing examiner could properly consider the facts underlying this untried criminal charge, so long as those facts were proved by a preponderance of the evidence. See Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass 381, 396 (2013). Doe has since pleaded guilty to the armed robbery charge.
Doe, however, contends that the hearing examiner erred by failing to award mitigating weight to factor 29 (offense-free time in the community). Doe argues that he was released from custody on his sex offense in November of 2006, and has not been charged with any sexually related crime since that time, nor has he yet been convicted on any nonsexual violent offense. As a result, Doe argues that he was entitled to mitigating weight under factor 29. See 803 Code Mass. Regs. § 1.33(29)(a) (2016). We disagree.
In 2011, Doe pleaded guilty to both reckless endangerment of a child and accessory after the fact. He was placed on probation, which was later revoked in 2014 for failure to register as a sex offender. Doe remained incarcerated until July of 2015, only approximately seventeen months before Doe's reclassification hearing. Therefore, because Doe had yet to accrue at least five years of offense-free time in the community, we see no error in the hearing examiner's decision to disregard factor 29 in his classification of Doe. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) ("The hearing examiner has discretion, however, to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor").
Doe contends that the reckless endangerment charge did not constitute a nonsexual violent offense. We disagree. Doe was in a romantic relationship with the mother of the three year old child who was physically assaulted. While the mother was charged in her daughter's death, Doe was also charged because he was believed to have been present at the time the mother physically assaulted the child, and failed to intervene on the child's behalf. Even if the reckless endangerment offense did not constitute a nonsexual violent offense, as Doe contends, we see no error in the hearing examiner's decision to disregard factor 29 in his classification of Doe, given Doe's armed robbery offense in 2016.
Ultimately, given the substantial evidence to justify Doe's high risk of reoffense and high degree of dangerousness, and because the hearing examiner did not err in failing to award mitigating weight to factor 29, we discern no abuse of discretion in the hearing examiner's decision to classify Doe as a level three offender. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012) (no error by hearing examiner where offender's classification based upon "sound exercise of informed discretion rather than the mechanical application of a checklist").
3. Internet dissemination. Finally, Doe argues that a remand is required for explicit findings on whether or not public access to his personal and sex offender information will serve the public's interest in safety. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019). When considering an offender's risk of reoffense and degree of dangerousness, a determination must also be made as to the degree to which public access to the offender's personal and sex offender information will serve the public's interest in safety. See id. Ultimately, the hearing examiner is charged with making explicit findings by clear and convincing evidence that Internet dissemination of the offender's information serves to protect the public against the risk of reoffense. See id. Even though this rule is to be applied prospectively to hearings occurring after the rule was announced, a reviewing court may nonetheless remand the decision when such explicit findings are absent from the record. See id. at 657. A reviewing court also has the discretion to decline to remand the decision where the underlying facts "so clearly dictate" that Internet dissemination is warranted. Id. at 657 n.4.
Here, the hearing examiner did not expressly determine whether the public's interest in safety is served by Internet publication of Doe's personal and sex offender information. Doe argues that this failure warrants a remand of the case for further findings. We disagree.
First, despite Doe's plea to a reduced charge of indecent assault and battery, the hearing examiner explicitly found that Doe actually forcibly raped the victim, a much more severe offense than that to which Doe pleaded guilty. Furthermore, Doe has a "long, escalating" criminal record, including recent offenses for armed robbery, reckless endangerment of a child, and failure to register as a sex offender. This criminal record is indicative of Doe's continued lawlessness and increasingly antisocial behavior. See 803 Code Mass. Regs. § 1.33(1)(a) (2016). Finally, as noted by the hearing examiner, Doe suffers from untreated mental health issues, as well as severe substance abuse issues. Currently, there is no evidence that Doe receives any sort of treatment or medication for his mental conditions, and we share the hearing examiner's concerns over Doe's use of narcotics in the past to "self-medicate" for his mental health issues.
Dr. Ruth Lewis diagnosed Doe with Schizoaffective Disorder, ADD/ADHD, Asperger's Syndrome, PTSD, and poly-substance abuse. Lewis opined that some of these mental health issues contributed to the commission of the original sex offense due to Doe's impulsivity, poor judgment, and inability to read social cues.
Given these concerns, coupled with the severe nature of Doe's original sex offense and his continued subsequent criminal misconduct, we believe that the facts underlying this case clearly dictate that Internet dissemination of Doe's personal and sex offender information is warranted, as public availability of such information will undoubtedly serve the public's interest in safety. See Doe No. 23656 , 483 Mass. at 145-146. Therefore, we decline to remand the case for further findings on this issue.
Judgment affirmed.
By the Court (Vuono, Meade & Blake, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 9, 2020.