Opinion
21-P-808
12-27-2022
John DOE, Sex Offender Registry Board No. 342170 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Doe appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. We also affirm.
Background. In 2007, over the course of several months, Doe (then thirty-nine years old) raped and otherwise sexually assaulted a fifteen year old girl (Victim 1). Doe was introduced to Victim 1 through her friend whom Doe met on the Internet. We need not recount the horrific details. It suffices to say that Doe tortured, humiliated, and debased Victim 1, and at least one of these episodes occurred in a public parking lot. In 2011, Doe was convicted of nine offenses for his abuse of Victim 1, including three counts of forcible rape of a child, and he was sentenced to ten to twelve years in State prison. At the time of his 2020 classification hearing, Doe remained incarcerated.
During a 2007 police interview regarding the governing offense, Doe was questioned about allegations of another sexual assault that occurred in 1997. That year, a woman whom Doe had been dating (Victim 2) filed a restraining order against him. Victim 2 averred that Doe, who was a bus driver for the Massachusetts Bay Transportation Authority (MBTA), forced her to have sex with him in a restaurant bathroom during his shift. An abuse prevention order obtained pursuant to G. L. c. 209A (209A order) issued ex parte after a judge found that "[a]n imminent threat of bodily injury exist[ed] to [Victim 2]." Following a hearing, at which Doe, Victim 2, and a police officer testified, the 209A order was extended.
At the 2020 classification hearing, the hearing examiner considered Victim 2's affidavit to be reliable hearsay due to its significant detail, and the fact that two 209A orders issued based on it and her in-court testimony. In concluding that Doe should be classified as a level three sex offender, the hearing examiner relied, among other factors, on factor 2 (repetitive and compulsive behavior), a "high risk factor." The examiner gave this factor "full weight" in part because she found that Doe had "committed his governing sex offense ten years after he had been investigated by the MBTA regarding Victim 2's allegations." She also applied high-risk factor 3 (adult offender and child victim), as Doe's governing offense involved a fifteen year old victim. In addition, she applied seven risk-elevating factors and four risk-mitigating factors with varying weights, and considered several additional factors. The hearing examiner ultimately concluded that as "numerous factors point to a persistence in [Doe's] sexual misconduct, transcending Victim age and relationships, and, without treatment to address this behavior, suggest a very high risk of reoffense," the risk-mitigating factors did not outweigh his high risk, especially as several of these factors were "true at the time of his offending as well." She further found Doe to present a high degree of dangerousness, that Internet publication was appropriate, and therefore ordered that Doe register as a level three sex offender. A Superior Court judge affirmed Doe's level three classification, finding that although the hearing examiner erred in applying full weight for factor 2, ultimately it did not prejudice Doe due to the nature of his governing offense and the validity of other risk-elevating factors. This appeal followed.
Factor 7 (relationship between the offender and victim); factor 8 (weapons, violence, or infliction of bodily injury); factor 9 (alcohol and substance abuse); factor 16 (public place); factor 19 (level of physical contact); factor 21 (diverse victim type); and factor 22 (number of victims).
Factor 28 (supervision by probation or parole); factor 30 (advanced age); factor 33 (home situation and support systems); and factor 34 (stability in the community).
She considered several expert studies submitted by Doe and Victim 1's impact statement. As much of the sexual abuse of Victim 1 also involved that victim's sixteen year old friend, the hearing examiner considered the friend's involvement as "Other Useful Information" under factor 37.
Discussion. "We review a judge's consideration of an agency decision de novo ..., ‘giv[ing] due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ " Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88-89 (2019), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015).
As an initial matter, we agree with the hearing examiner that Victim 2's affidavit was reliable hearsay on which she could rely in her analysis of the factors. Given the affidavit's level of detail and the fact that not only did Victim 2 sign it under the pains and penalties of perjury but that she then testified as to its contents, resulting in the issuance of two 209A orders, we find that it bore sufficient indicia of reliability. See Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 26-27 (2021) ("Such indicia 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’ " [citation omitted]). See also Commonwealth v. Costa, 490 Mass. 118, 123-127 (2022) (complainant's 209A affidavit, statements to officer, and grand jury testimony admissible as substantially reliable evidence of rape, even though complainant not disinterested). Any issues as to Victim 2's credibility and motive are "the province of the ... hearing examiner that heard the evidence." See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138 (2019).
The next question is whether Doe was "confronted" with these 1997 allegations for the purpose of factor 2. As it currently stands, factor 2 allows SORB to "give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct." 803 Code Mass. Regs. § 1.33(2)(a) (2016). See Doe, Sex Offender Registry Bd. No. 6729 v. Sex Offender Registry Bd., 490 Mass. 759, 765-766 (2022) (Doe No. 6729 ) (setting forth history and current status of SORB's factor 2 regulation). In concluding that Doe had been confronted with the 1997 allegations, the hearing examiner focused on Doe's 2007 police interview in which Doe himself referenced being investigated by the MBTA for the earlier incident with his former girlfriend. In addition, Doe was separately confronted with the 1997 rape allegations during the 209A proceedings in which he personally participated. With the evidence establishing that Doe committed the 2007 sex offenses after having been confronted with the allegations of the 1997 rape, we agree with the hearing examiner that factor 2 applies.
In that interview, Doe specifically referred to a MBTA investigation of his having sex with a former girlfriend "on" a MBTA bus, raising some question about whether the MBTA had in fact investigated the alleged rape in the bathroom that was the subject of the 209A proceeding. However, Doe's filings to the Superior Court appealing the 2020 classification make clear that the MBTA investigation involved the same 1997 incident contained in Victim 2's affidavit.
At the same time, it is uncontested that Doe was never charged with or convicted of the 1997 offense. Accordingly, although the hearing examiner would have been justified in assigning factor 2 "increased weight," she erred by giving it "full weight." See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742-743 (2019). SORB acknowledges this error.
As in Doe No. 6729, 490 Mass. at 766,
"We understand the hearing examiner's use of ‘full weight' to refer to the regulation's language that ‘[t]he most weight shall be given to an offender who engages in sexual misconduct after having charged with or convicted of a sex offense,' 803 Code Mass. Regs. § 1.33(2)(a) (2016), although using the precise language of the regulation would have simplified our review."
We are unpersuaded by Doe's arguments that the prolonged period of time between the two offenses negates factor 2, and that a separate showing of compulsion is required. As the Supreme Judicial Court recently stated, a "distinct finding of compulsiveness" is not necessary to apply factor 2. See Doe No. 6729, 490 Mass. at 765.
What remains is to determine whether this error in assigning too much weight to factor 2 requires us to vacate Doe's level three classification and to remand for reclassification. "[T]he proper standard of review when an offender successfully challenges the application of a regulatory factor is to ask whether the error may have affected the classification and, if so, to remand to SORB." Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 804 (2022) (Doe No. 22188 II ).
"In this regard we start by asking whether ‘the underlying facts of the case ... clearly dictate the appropriate classification level’ " (citation omitted). Doe No. 22188 II , 101 Mass. App. Ct. at 804. In contrast to Doe No. 22188 II , in which we vacated the petitioner's classification after concluding that factor 2 did not apply at all, we conclude that the facts here do "clearly dictate" Doe's classification as a level three sex offender. Here, the hearing examiner found that eight additional risk-elevating factors applied, and we discern no abuse of discretion in the hearing examiner's weighing of any of them. Contrast id. at 804-805 (where inapplicability of factor 2 negated many of other risk-elevating factors). Doe's particularly odious governing offenses amounted to months of torture for Victim 1, resulting in his nine convictions and long prison sentence for various sexual offenses, including forcible rape of a child. His previous rape of Victim 2 in a public place while serving as a government employee also supports the need for Internet publication. Furthermore, contrary to the circumstances in Doe No. 22188 II , where we highlighted the petitioner's "considerable mitigation" both while incarcerated and in his four years out in the community, there is little evidence of any progress Doe has made since his offense. Id. at 805. As the hearing examiner noted, Doe had completed only two programs during his almost decade in prison and remained incarcerated at time of his classification hearing, tempering the value of the risk-mitigating factors. We agree that given Doe's minimal efforts to rehabilitate himself, his future stability remains a "matter of speculation."
The hearing examiner applied factor 3 (adult offender with child victim), because Victim 1 was fifteen years old; factor 7 (relationship between the offender and victim), because both victims were extrafamilial; factor 8 (weapons, violence, or infliction of bodily injury), because Doe "incapacitated, threatened, and injured Victim 1"; factor 9 (alcohol and substance abuse), due to Doe's "long history of substance abuse and relapse"; factor 16 (public place), as he assaulted both victims at least once in a public place where one would not "reasonably expect privacy"; factor 19 (level of contact), as both offenses involved penile penetration; factor 21 (diverse victim type), as he "offended against an extrafamilial adult and a stranger child"; and factor 22 (number of victims), as he offended against two victims.
The hearing examiner discussed, but ultimately did not apply, factor 11 (violence unrelated to sexual assault), for a prior 1995 charge of assault and battery with a dangerous weapon which was dismissed notwithstanding the extension of a 209A order. She also decided not to apply factor 24 (less than satisfactory participation in sex offender treatment), even though there was evidence that Doe was suspended from a prison sex offender treatment program due to "poor attendance ‘without a valid explanation,’ " "[i]n an abundance of caution" because of Doe's rights against self-incrimination.
The petitioner in Doe No. 22188 II was an "active participant in [sex offender] treatment," "expressed remorse" for his offense, and "obtained a college degree and certificates in welding and commercial driving, regularly attend[ed] religious services, work[ed] full time at a hospital as a pipefitter, [was] married, and own[ed] a home." See 101 Mass. App. Ct. at 805.
The hearing examiner applied factor 28 (supervision by probation), due to Doe's upcoming ten years of probation supervision; factor 30 (advanced age), as Doe was fifty-two years old at the time of the hearing; factor 33 (home situation and support system), because while Doe had "people supporting him in the community" and several witnesses testified for him at the hearing, they all maintained his innocence; and factor 34 (stability in the community), balancing his "history of community involvement and relative stability" while noting his "future stability is at this point a matter of speculation" as he remained incarcerated.
Doe's only other challenge to a specific factor is that the hearing examiner failed to properly credit his stability in the community under factor 34, due to a 2011 letter from Doe's counsel detailing his then current sobriety. The hearing examiner considered the 2011 letter but ultimately concluded that Doe's future stability was a "matter of speculation." To the extent that Doe preserved his factor 34 argument by raising it in the Superior Court, we discern no error in the hearing examiner's weighing of the letter, particularly in light of the fact that Doe has been incarcerated since the year the letter was written. Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 63 (2010).
Ultimately, the underlying facts here dictate Doe's high risk of reoffense. Contrast Doe No. 22188 II , 101 Mass. App. Ct. at 805. We conclude that, even with the application of only increased weight for factor 2, Doe's level three classification is appropriate. We note that nothing precludes Doe from seeking reclassification under 803 Code Mass. Regs. §§ 1.31, 1.32 (2016), in the future.
For the same reasons, we find that a level three classification is supported by substantial evidence. See Doe No. 6729, 490 Mass. at 762 n.4 ("Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion’ " [citation omitted]).
Judgment affirmed.