Opinion
21-P-638
12-07-2022
John DOE, Sex Offender Registry Board No. 2751 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment that affirmed, on judicial review under G. L. c. 6, § 178M, and G. L. c. 30A, § 14, the decision of the Sex Offender Registry Board (SORB) to reclassify him as a level one sex offender. He principally claims that the hearing examiner erred by not terminating his registration requirement after SORB failed to produce any new evidence of wrongdoing since his last classification hearing. Doe also argues that it was error for the examiner to consider his 1996 conviction of open and gross lewdness and an abuse of discretion for the examiner not to give more consideration to certain studies that Doe presented in evidence. We affirm the judgment and decline Doe's invitation to establish a rule requiring SORB to terminate the registration requirement of any sex offender who has demonstrated three years of good behavior since his last classification hearing.
Background. In 1986, Doe was charged with committing ten sexual assaults against five child victims: his own five year old daughter, two eight year old nieces, his seven year old nephew, and his twelve year old brother-in-law. Doe pleaded guilty to the five charges involving his brother-in-law: one count of assault with intent to rape, G. L. c. 265, § 24B, and four counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. In light of the five to ten-year State prison sentence that Doe received, the Commonwealth declined to prosecute the other charges. Doe has since admitted to the assault against his nephew, as well, but maintains his innocence as to the charges involving the girls.
Shortly after his release from prison in 1996, Doe was arrested for masturbating next to another man in a public bathroom. The hearing examiner classified this as an additional incident of sexual misconduct, and the man in the bathroom as Doe's sixth victim. Doe pleaded guilty to one count of open and gross lewdness, G. L. c. 272, § 16, and received a two-year split sentence with six months to serve. Since then, Doe's only incident of misconduct was an unspecified probation violation in 1997. He was released from all supervision in April 1999. In 2002, Doe was initially notified that he must register as a level three sex offender, but after a hearing in 2003, SORB finally classified Doe as a level two offender.
In April 2020, Doe filed a motion to terminate his registration requirement and was granted a hearing to challenge his classification under G. L. c. 6, § 178L. At the hearing, the examiner found, Doe presented enough evidence to make a threshold showing that he posed a decreased risk of reoffense, based on Doe's twenty-three years of offense-free time, his advanced age (sixty-nine years), and his declining health. Nevertheless, the examiner found that SORB presented clear and convincing evidence at the hearing demonstrating that Doe still presents a low risk of reoffending and a low degree of dangerousness, requiring him to register.
In finding that Doe presents a current risk, the examiner applied two high risk factors based on Doe's past sexual misconduct: factor 2 (repetitive and compulsive behavior) and factor 3 (adult offender with child victim). See 803 Code Mass. Regs. §§ 1.33(2)-(3) (2016). The examiner also applied eight risk elevating factors (factors 7 and 16 through 22) based on the characteristics of Doe's previous crimes, and two factors (factors 12 and 13) for his behavior while he was incarcerated or on probation. Finally, the examiner applied five risk mitigating factors -- giving full weight to factor 29 (offense free time in the community) and factor 30 (advanced age) -- and explained why he was only giving limited or minimal weight to certain psychological profiles and studies that Doe presented in evidence (factors 35 and 37).
Hereinafter we will refer to various classification factors by number, or name and number, it being understood that each of them appears in the corresponding subpart of 803 Code Mass. Regs. § 1.33 (2016).
Based on the foregoing, the examiner reclassified Doe as a level one sex offender, meaning SORB would not publish his registry information on the Internet. A Superior Court judge affirmed the decision of the examiner on judicial review, and Doe appealed.
Discussion. Our review is limited: "[w]e reverse or modify [SORB]’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). To satisfy the substantial evidence requirement at a termination hearing, SORB must present clear and convincing evidence of "the continued appropriateness of the offender's duty to register." Doe, Sex Offender Registry Bd. No. 76819 v. Sex Offender Registry Bd., 480 Mass. 212, 219-220 (2018) (Doe No. 76819 ).
1. SORB's claimed reliance on stale evidence. Because SORB supposedly did not produce any new evidence postdating Doe's release from supervision and relied solely on assertedly stale evidence to demonstrate that Doe still posed at least a low level of risk, Doe argues that the examiner erred as a matter of law by failing to terminate his registration requirement. We see no error.
a. Registration based solely on prior convictions. Doe first argues that, without any new evidence, SORB essentially required him "to register simply because he was -- however long ago in the past -- convicted of a sexually violent offense." Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 385-386 (2009) (Doe No. 24341 ). The postconviction enactment of a registration requirement, as is the case here, can raise due process concerns when an offender is not given "an opportunity to overcome the conclusive presumption of dangerousness that flows solely from [his] conviction." Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 793 (2008) (Doe No. 8725 ). Therefore, notwithstanding G. L. c. 6, § 178G, which requires an offender convicted of a sexually violent offense to register for life, the offender is entitled to an individualized hearing to determine whether his risk of reoffense and degree of dangerousness still warrant a requirement that he register. See Doe No. 24341 , supra at 385-387, citing Doe No. 8725, supra at 791-793.
Doe's five guilty pleas involved offenses defined as "sexually violent." G. L. c. 6, § 178C.
Those due process concerns are not raised here, however, where the examiner already has, as mandated in Doe No. 24341 , 74 Mass. App. Ct. at 387, "explicitly consider[ed], and ma[de] written findings pertaining to, whether Doe currently presents a risk of reoffense or danger to the public." Importantly, in applying the static risk factors, the examiner's decision here explained the "predictive value" placed on the characteristics of Doe's prior offenses and how much weight the examiner gave those factors. See id. at 388. The examiner also explained his evaluative process and gave meaningful consideration to Doe's asserted mitigating factors. Thus, we are satisfied that Doe was found to present a risk not simply because he committed offenses in the past, but because of what the statute and regulations (supported by research) say those offenses signify about his risk of reoffense, even taking the passage of time and other mitigating factors into account. The examiner did not err by extrapolating from Doe's criminal record to find that some current risk of dangerousness remained.
Doe argues in passing that the examiner erred in treating the brother-in-law as an extrafamilial victim, when factor 7 expressly classifies a brother-in-law as an intrafamilial victim. See 803 Code Mass. Regs. § 1.33(7)(a)(1)(c). We have considered "whether the error may have affected the classification," Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 804 (2022), and conclude that it did not, because the examiner correctly determined for purpose of factors 7 and 21 that Doe also had a stranger victim.
b. Absence of new negative evidence. Doe next contends that the law required SORB to present "new negative information," postdating his last conviction, to meet its substantial evidence burden. In the alternative, Doe asks us to establish a new rule that would require SORB to produce new negative evidence that not only postdates the offender's conviction, but, more restrictively, arose in the three years prior to the termination hearing. We are not persuaded that any new negative evidence was required in order for the examiner to deny Doe's motion for termination, and we decline to announce any such rule going forward.
According to Doe, G. L. c. 6, § 178G, demonstrates a legislative policy that evidence of a prior sex offense should no longer be considered probative of an offender's dangerousness after twenty years. But, as Doe recognizes, that policy has exceptions for offenders, such as Doe, who were convicted of sexually violent offenses or sexual crimes against children. See id. Although the statutory provision requiring mandatory lifetime registration for these offenders has been invalidated, see Doe No. 8725, 450 Mass. at 793, the enacted exceptions indicate that the Legislature did view the previous conviction of the excepted offenses as probative of sexual dangerousness well beyond twenty years. Moreover, after the ruling in Doe No. 8725, an offender who falls under the exception is not, after twenty years, automatically relieved of the obligation to register. Rather, the Supreme Judicial Court has held that the appropriate remedy is to afford such an offender a hearing at which SORB makes an individualized determination of whether he still must register. See id. SORB must "demonstrate the continued appropriateness of the offender's duty to register, by clear and convincing evidence." Doe No. 76819 , 480 Mass. at 219-220. We are bound by these decisions and cannot substitute a different rule based on Doe's policy argument.
Section 178G states that an offender's registration requirement will generally end twenty years after he is released from supervision.
Doe's next argument proceeds from a statement in Doe No. 24341 , 74 Mass. App. Ct. at 387, requiring the examiner in that case, if he determined on remand that the offender still posed a risk of reoffense and degree of dangerousness warranting registration, to "particularly identify[ ] any facts that postdate Doe's offense." Based on this language, Doe argues that the court has already adopted the substance of his proposed rule. The short answer to Doe's contention is that nothing in Doe No. 24341 suggested that the examiner there, let alone in every case, was required to identify some postconviction development that reflected negatively on that offender before denying the offender's motion to terminate his duty to register. What Doe No. 24341 requires is that an examiner consider all factors bearing on the offender's current risk -- including not only past convictions, but also recent events and conditions that suggest decreased as well as increased risk. Id. at 388. The examiner here did so.
Finally, in further support of his argument against reliance on stale evidence, Doe cites two cases in which courts vacated SORB final classification decisions made unreasonably far in advance of the offenders’ likely release from confinement based on concerns that the premature classifications would not accurately apply certain dynamic risk factors -- those that can change over time -- such as participation in sex offender treatment or the age of the offender. See Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 484-485 (2015) ; Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 76 (2012). These decisions reinforce the undisputed principle that classifications cannot be based on stale information.
The characteristics of the crimes that Doe would have us classify as "stale," however, are static factors -- those that do not change over time -- such as offense characteristics, which the statute clearly requires examiners to consider regardless of how long ago the offenses occurred. See, e.g., G. L. c. 6, §§ 178K (1) (a ), (b ). Of course, hearing examiners have some discretion, within the statute and regulations, to give less weight to static factors based on the age of prior offenses. But neither the two cases just discussed, nor any other sources cited by Doe, require examiners entirely to disregard sex offenses committed more than a certain number of years in the past. Examiners may properly find that SORB has met its burden even when no evidence of post-sentence risk-aggravating events or conditions -- no new negative evidence, in Doe's terminology -- has been presented.
Doe also cites to two unpublished decisions of panels of this court to illustrate that new negative evidence is required. It suffices to say that those decisions are not binding precedent and involved facts materially different from those presented here.
2. Doe's 1996 conviction of open and gross lewdness. Doe mounts multiple challenges to the examiner's consideration of his 1996 conviction of open and gross lewdness, which in turn affected the weight the examiner gave to factors 2, 7, 16, and 20.
Doe first claims that the only evidence of the details of the conviction came from unreliable hearsay in a police report. But hearsay evidence may be considered at a SORB hearing, and the police report here -- which was actually an affidavit from the arresting officer who witnessed the incident -- was "the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs." Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 26 (2021), quoting G. L. c. 30A, § 11 (2).
Doe next claims that it was error to conclude that he committed the offense, because the details in the report did not demonstrate the elements necessary to sustain a conviction of open and gross lewdness. Relatedly, Doe claims that the hearing examiner erred by considering the characteristics of the victim of the offense, without evidence that the man who witnessed Doe exposing himself felt victimized, i.e., shocked and alarmed. Again, we are unpersuaded. The essential elements of open and gross lewdness were admitted (albeit not conclusively) by Doe's guilty plea and resulting conviction. See Flood v. Southland Corp., 416 Mass. 62, 70 (1993). By definition, open and gross lewdness must cause shock and alarm in at least one person, who is a victim of the offense. See Commonwealth v. Maguire, 476 Mass. 156, 159 (2017). The arresting officer's affidavit provided sufficient evidence to conclude that the man in the bathroom was the victim of Doe's offense, and Doe, by pleading guilty, admitted that he had caused the victim to be shocked and alarmed.
The Flood rule applies when a defendant pleads guilty to a crime punishable by confinement in excess of one year. See id. Open and gross lewdness is punishable by, among other things, "imprisonment in the state prison for not more than three years or in jail for not more than two years." G. L. c. 272, § 16.
Doe's next argument is that it was error to consider his conviction of open and gross lewdness as a "sex offense" because it was his first and only such conviction, whereas the applicable statute, G. L. c. 6, § 178C, defines a "sex offense," in part, as including only a "second and subsequent adjudication or conviction for open and gross lewdness." This argument misses the mark, as well. The examiner expressly recognized that the conviction could not be considered a "sex offense" within the meaning of the statute, but he concluded that it still could be considered as "sexual misconduct." Doe does not challenge this conclusion, nor does he identify any particular portion of the examiner's decision that impermissibly treated the conviction as a sex offense.
Thus, were Doe's single conviction of open and gross lewdness his only conviction or adjudication of an offense sexual in nature, he would not have been convicted of a "sex offense," would not fit within the definition of "sex offender," G. L. c. 6, § 178C, and would have no duty to register -- a duty imposed only on sex offenders. See, e.g., G. L. c. 6, §§ 178E, 178F1/2.
Finally, Doe claims that a SORB hearing examiner is generally required to predict which type of crime an offender is likely to commit in the future, and, because the examiner here based his assessment on two types of offenses with very different characteristics, the decision did not adequately indicate the nature of the risk that Doe presents. Doe accurately observes that, in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 651 (2019) (Doe No. 496501 ), the Supreme Judicial Court explained that SORB hearing examiners must "consider what type of sexual crime the offender would likely commit if he or she were to reoffend." Even if we were to adopt Doe's strict interpretation of this language to mean that the examiner was required to formally predict that Doe will commit only one type of crime in the future, we would still see no prejudice to Doe. Under Doe No. 496501 , supra, quoting 803 Code Mass. Regs. § 1.20(2) (2016), such a consideration is necessary only to determine the offender's degree of dangerousness, which is based on " ‘the severity and extent of harm’ that would result if the offender were to commit a new sex offense." Here, any of Doe's past crimes, if committed in the future, would likely result in harm sufficient to support a finding that Doe poses at least a low degree of dangerousness. See Doe No. 496501 , supra at 661-663 (harm from potential open and gross lewdness offense in future still indicated low degree of dangerousness even where prior such offenses were committed in private against adult victims and offender never attempted contact offense).
3. Failure to apply scientific studies. Doe's final argument is that the examiner abused his discretion by not giving sufficient weight to scientific studies Doe presented at the hearing regarding offense-free time in the community. But the examiner explained that the evidence from the studies was already incorporated in SORB's risk factor regulations -- in particular, factor 29, to which the examiner gave "full weight" in Doe's case -- and thus the examiner did not give the studies themselves much weight. This was permissible. See Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 298 (2021).
Doe's appellate brief makes a similar argument based on studies addressing how the likelihood of reoffense decreases with age. It does not appear that these studies were among those presented to the examiner, and the examiner did not discuss them. In any event, the examiner gave full weight to factor 30 (advanced age); for the reasons discussed in the text, we see no abuse of discretion in this regard.
Insofar as Doe argues that the evidence from the studies must be given more weight than other factors, we disagree. "A hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor, and ... a reviewing court is required to give due weight to [the examiner's] experience, technical competence, and specialized knowledge.... Accordingly, [o]ur 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). Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). See Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass. 759, 768 (2022). The examiner was within his discretion to give Doe's offense-free time full weight, yet still find, based on consideration of all applicable risk factors, that Doe presented a sufficient risk of reoffense and degree of dangerousness to warrant a level one classification.
Doe has not cited to, and at oral argument he conceded that he was unaware of, studies indicating a scientific consensus that the risk mitigating factors of offense-free time in the community and advanced age can dispositively indicate that an offender presents insufficient risk to warrant registration.
Judgment affirmed.