Opinion
19-P-1571
12-14-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523494 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
Following an evidentiary hearing, a hearing examiner of the Sex Offender Registry Board (board) classified Doe as a level three, high-risk offender. Doe sought judicial review under G. L. c. 30A, § 14. A Superior Court judge affirmed the board's classification decision, and judgment entered for the board, from which Doe appeals. We affirm.
Background. Doe's son and daughter-in-law learned that Doe had molested two of their three children (six year old twins, a girl and a boy) on multiple occasions and alerted the police. According to the twins, Doe had repeatedly showed them, and forced them to touch, his genitals. Doe's conduct included touching the girl's genitals, making the boy touch her genitals, and showing pornography to both children. The offenses occurred between October 2008 and July 2013, when Doe was between fifty-six and sixty-two years old.
Doe pleaded guilty to three indictments charging indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, two indictments for disseminating material harmful to minors, G. L. c. 272, § 28, and one for attempt to commit indecent assault and battery on a child under fourteen, G. L. c. 274, § 6. He was sentenced to two and one-half years in the house of correction followed by four years of probation. When the board informed Doe of his duty to register as a level three sex offender under G. L. c. 6, § 178K (2) (c), he timely requested a de novo hearing under G. L. c. 6, § 178L.
Doe, who was sixty-seven years old at the time of the hearing, had no other criminal history. The hearing examiner concluded that he presented "a high risk to reoffend and a degree of dangerousness which warrant public access to his sex offender information."
Discussion. 1. Motion for funds. Prior to Doe's hearing, he filed a motion for funds to obtain an expert witness. Concluding that Doe's motion was "for the purpose of an expert to provide a general opinion on [his] risk to reoffend and degree of dangerousness," the hearing examiner found that the motion was "insufficient" under the board's regulatory standards. We agree.
Under the board's regulations, a motion for expert funds must "(1) identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffense or level or dangerousness; (2) identify the particular type of Expert Witness who would provide testimony to assist the Hearing Examiner in his or her understanding and analysis; and (3) include supporting documentation or affidavits verifying the specific condition or circumstance that the offender suffers from." 803 Code Mass. Regs. § 1.16(4)(a) (2016).
A sex offender seeking expert funds carries the burden "to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert." Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 617 (2012) (Doe No. 27914 ), quoting Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008) (Doe No. 89230 ). "[T]he decision whether to grant an individual sex offender funds for an expert is a discretionary one, to be based on the facts presented in an individual case." Doe No. 89230 , supra. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 624 (2010). We therefore review the hearing examiner's decision for abuse of discretion. Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 307, 310 (2020) (Doe No. 58574 ).
Doe's motion was not "tailored to the specifics" of his condition. Id. at 311. It consisted almost entirely of general statements and citations discussing the benefits of expert testimony, but offered only two sentences about Doe's conditions. One sentence cited "medical records" as indicating that he suffered "from various mental and physical conditions including, but not limited to, anxiety, depression, severe spinal stenosis, myocardial infarction and bronchospastic COPD." The second sentence suggested that Doe "may suffer from a mental illness," without further elaboration. Doe also offered an affidavit from a licensed forensic psychologist, which contained even less discussion of Doe's individual circumstances. His motion failed to establish any nexus whatsoever between his conditions and his risk of reoffense or degree of dangerousness. "A general motion for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient." Doe No. 89230 , 452 Mass. at 775. Doe has not shown that the hearing examiner abused his discretion in denying the motion for expert funds.
2. Substantial evidence. Doe contends that the hearing examiner's "conclusory statements" did not amount to "specific, written, detailed, and individualized findings," as required by Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998), and that the weight of the evidence does not support his classification as a high-risk offender.
We review the board's classification decision to determine whether it is supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 786-787 (2006) (Doe No. 10216 ). See also Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Doe No. 10216 , supra at 787, quoting G. L. c. 30A, § 1 (6). The ultimate classification must be supported by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 311 (2015).
As an initial matter, the hearing examiner's written findings contained sufficient detail. After discussing Doe's governing offenses in detail, the hearing examiner evaluated the applicable high-risk, risk-elevating, risk-mitigating, and additional factors. See 803 Code Mass. Regs. § 1.33 (2016); Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014) ("[board] is required to consider a list of statutory factors in making its classification determinations"). Although the hearing examiner's discussion of the high-risk and risk-elevating factors was terse, after the discussion of the governing offenses, the application of these factors was easily explained in a sentence or two.
See 803 Code Mass. Regs. § 1.33(2) (repetitive and compulsive behavior, factor applied); § 1.33(3) (adult offender with a child victim, factor given increased weight).
See Code Mass. Regs. § 1.33(16) (public place, factor applied); § 1.33(17) (male offender against male victim, factor applied); § 1.33(18) (extravulnerable victim, factor applied); § 1.33(21) (diverse victim type, factor applied); § 1.33(22) (number of victims, factor applied).
See Code Mass. Regs. § 1.33(28) (supervision by probation or parole, factor applied); § 1.33(30) (advanced age, factor given moderate weight); § 1.33(31) (physical condition, factor not applied); § 1.33(32) (sex offender treatment, factor given minimal weight); § 1.33(33) (home situation and support systems, factor given minimal weight).
The hearing examiner also considered a victim impact statement from the victims' mother. See Code Mass. Regs. § § 1.33(37), (38).
Doe also claims that the hearing examiner erred in applying factor 30 (advanced age), to which the hearing examiner gave "only moderate weight"; factor 33 (home situation and support systems), given "minimal weight"; and factor 34 (materials submitted by sex offender regarding stability in community), which the hearing examiner did not discuss. We discern no error. The hearing examiner explained that he gave factors 30 and 33 less mitigating weight because Doe was over sixty, and living with his wife, when he committed his sex offenses, yet neither of these factors deterred his misconduct. As to factor 34, the only stability factors Doe mentions in his brief are that he lived with his wife and that he had no issues with drugs or alcohol. However, Doe's home situation was already considered in factor 33, and nothing in the record suggests that Doe submitted any materials regarding his sobriety or called it to the hearing examiner's attention. "The hearing examiner has discretion to determine how much weight to ascribe to each factor under consideration." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138-139 (2019). Substantial evidence supports the board's classification of Doe as a high-risk offender.
Doe also asserts that factors 7 (intrafamilial victims), 9 (no issues with drugs or alcohol), 10 (no criminal record outside index crime), and 12 (no issues while incarcerated; involved in multiple programs) should have been given mitigating weight. These factors are risk-elevating, not risk-mitigating, factors. See Code Mass. Regs. §§ 1.33(7), (9), (10), (12) (2016). The absence of a risk-elevating factor is not a mitigating factor. See Doe No. 10216 , 447 Mass. at 788.
3. Internet dissemination. The hearing examiner did not make a specific finding that Internet dissemination of Doe's personal and sex offender information would serve a public safety interest. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655-656 (2019). The requirement of a specific finding in this regard applies "prospectively only." Id. at 657. Where, as here, an appeal is pending, the court may in its discretion remand the decision to the hearing examiner for express findings. See id. at 657-658. We conclude that a remand is unnecessary. The underlying facts -- the young age of the victims, the repetitive and compulsive nature of Doe's offenses, their recency, and the advanced age at which Doe committed them -- clearly indicate a high risk of reoffense and, accordingly, the need for Internet dissemination. See id. at 657 n.4.
Judgment affirmed.
By the Court (Massing, Singh & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 14, 2020.