Opinion
13-P-839
02-23-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 56930 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 his classification as a level three sex offender. Doe claims that the Sex Offender Registry Board's (board) classification determination was arbitrary and capricious and unsupported by substantial evidence. He further asserts that the board improperly admitted and considered unreliable hearsay. We affirm.
Discussion. We review a hearing examiner's classification decision to determine whether it lacked substantial evidentiary support, was arbitrary or capricious, was an abuse of discretion, or was otherwise not in accordance with law. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 6 (2014). In conducting our review, we "give due weight to the experience, technical competence, and specialized knowledge of the [board], as well as to the discretionary authority conferred upon it." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632-633 (2011).
The hearing examiner here issued a thorough written decision. In it she detailed her application of the evidence to the statutory and regulatory factors, listed in 803 Code of Mass. Regs. § 1.40 (2004), and examined both risk factors and mitigating factors. The hearing examiner permissibly determined the following factors increased Doe's risk of reoffending and degree of dangerousness: (1) Doe had committed multiple sexual assaults on the same victim, demonstrating increased deviant arousal as well as repetitive and compulsive behaviour; (2) the incidents involved a high degree of sexual physical contact, including oral and penile-vaginal penetration; (3) the index sex offenses were committed against an "extravulnerable" victim who was mentally handicapped; (4) Doe's relationship with the victim was "extrafamilial," which increases the pool of potential future victims; (5) the Legislature has classified Doe's index sex offenses as sexually violent; (6) Doe refused to participate in sex offender treatment while incarcerated; (7) Doe has also been convicted of a nonsexual violent offense; (8) at the time of Doe's classification hearing, he had been living in the community for less than five years; (9) Doe told his girlfriend that the victim of the index sex offenses had consented to the sexual encounters, displaying Doe's failure to take responsibility; and (10) the victim impact statement indicated that the victim was significantly impacted by Doe's sexual assaults.
The hearing examiner was within her discretion to credit the testimony of Doe's girlfriend in determining that Doe, despite his guilty pleas, had not taken responsibility for his conduct. See Doe, 10800, supra at 633 ("It is the province of the board, not this court, to weigh the credibility of the witnesses and to resolve any factual disputes").
Doe challenges the board's consideration of a victim impact statement delivered by the victim's mother. However, the regulations permit consideration of statements from "the guardian of an adult victim." 803 Code Mass. Regs. § 1.40(23) (2002). The regulations do not specify that the guardian must be legally appointed. Here, the victim was mentally disabled and had regressed as a result of Doe's sexual assaults. The board's consideration of the mother's statement on behalf of the victim was not impermissible.
The hearing examiner also carefully weighed and considered factors that mitigated Doe's risk of reoffending, and, within her discretion, determined that the mitigating factors were "short-lived" and did not "diminish the elevated concerns regarding [Doe's] risk to reoffend and degree of dangerousness." See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006) (hearing examiner has discretion to consider which regulatory factors are applicable and how much weight to give each factor based on evidence at the hearing).
The mitigating factors found by the hearing examiner include: (1) Doe acquired no disciplinary reports during his incarceration; (2) Doe was currently being supervised by probation; (3) Doe was participating in sex offender therapy; and (4) Doe was residing in a positive and supportive environment. The hearing examiner did not disregard credible evidence regarding Doe's age, as Doe contends, because no such evidence was presented to the hearing examiner for her consideration. As such, Doe waived that issue and is precluded from raising it on appeal. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 814 (2006).
Doe further asserts that the board's determination lacked expert and scientific support; however, the board's use of expert and scientific evidence is not mandatory. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 785-786 (2006). Doe's challenge to the hearing examiner's consideration of a police report also lacks merit. The police report pertained to Doe's sex offense convictions to which he pleaded guilty and, thus, bore sufficient indicia of reliability. See Doe, 10800, 459 Mass. at 638 ("In the context of administrative proceedings, hearsay evidence bearing indicia of reliability constitutes admissible and substantial evidence").
Judgment affirmed.
By the Court (Brown, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 23, 2015.