Opinion
20-P-1273
11-10-2021
John DOE, Sex Offender Registry Board No. 243635 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level two sex offender. On appeal, the plaintiff claims the hearing examiner erred in classifying him as a level two offender, as such a classification was unwarranted and not supported by clear and convincing evidence. We affirm.
Discussion. "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) (Doe No. 10800). "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 the plaintiff to demonstrate the invalidity of SORB's decision. See id.
The plaintiff claims that the hearing examiner improperly awarded weight to aggravating factor 9 (alcohol and substance abuse). See 803 Code Mass. Regs. § 1.33(9)(a) (2016). More specifically, he claims the hearing examiner was not permitted to consider evidence of steroid use, where there was no expert testimony to support the application of factor 9 to the use of such substances. We disagree.
Here, despite the plaintiff's claims that the hearing examiner had insufficient evidence of steroid use's direct effect on sex offending behavior, the hearing examiner noted that the plaintiff's wife's testimony supported the finding, but he gave the evidence only minimal weight because of the source of the evidence. Although the plaintiff was ultimately not convicted on the charges that arose from his possession of the steroids, a class E controlled substance, the hearing examiner was nonetheless still able to properly consider this evidence. See Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015) ("Examiners have been permitted to consider other instances of conduct that did not result in a conviction").
The hearing examiner is ultimately awarded the discretion to determine which statutory and regulatory factors are applicable, and how much weight to give them. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). Therefore, where the evidence suggested that the plaintiff was using steroids during the time he committed his sex offenses, we discern no error in the hearing examiner's decision, especially where he awarded it only "minimal consideration" relative to factor 9. 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").
The plaintiff also claims that the hearing examiner erred in providing only minimal consideration to factor 33 (home situation and support systems). We disagree. Pursuant to factor 33, the hearing examiner may award mitigating weight to an offender who resides in a "positive and supportive environment," as "[t]he likelihood of reoffense is reduced when an offender is supported by family, friends, and acquaintances." 803 Code Mass. Regs. § 1.33(33)(a) (2016).
Here, numerous letters of support were submitted on behalf of the plaintiff, primarily from family members who reside in Massachusetts, who claim they would support the plaintiff were he to move to Arizona, his preferred place of residence upon release from prison. However, only the letter from the plaintiff's older sister indicated what support would actually be provided to the plaintiff upon his release. More importantly, only two letters even mention the plaintiff's sex offenses, and both of these letters vehemently deny that the plaintiff committed these offenses, and emphatically maintain his innocence.
The plaintiff's older sister stated that while she could not provide the plaintiff with a place to live, she could provide him with transportation, clothes, and emotional support.
Contrary to the plaintiff's claims, the hearing examiner may consider evidence of the denial of guilt by the plaintiff's supporters where it would directly affect not only the level of support provided to the plaintiff, but also its efficacy. See 803 Code Mass. Regs. § 1.33(33)(a) (2016) ("The Board shall give greater mitigating consideration to evidence of a support network that is aware of the offender's sex offense history and provides guidance, supervision, and support of rehabilitation" [emphasis added]). See also Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 531 (2020) (Doe No. 524553) (no error in hearing examiner's decision to provide lesser mitigating weight to factor 33 where supporting family member did not know details of sex offenses, and demonstrated potential difficulties in providing guidance and supervision in offender's rehabilitation). Accordingly, we find no error.
Finally, the plaintiff claims that the hearing examiner erred in finding the victim to be eleven years old at the time of the sex offenses, which ultimately led to the determination that she was an "extravulnerable" victim. We disagree.
The plaintiff maintains that the victim was fifteen years old at the time of the plaintiff's sex offenses. This, however, is not supported by the record. While the victim was fifteen years old at the time of the sexual assaults that led to the plaintiff's criminal convictions, the plaintiff's abuse of the victim began years earlier. In fact, when the victim was eleven years old, the plaintiff began to enter her bedroom at night, kneel by the bed, pull the victim's pants down, and masturbate. On other occasions, the plaintiff brought the victim into the basement of their home, called a sex line, and masturbated in her presence. Thereafter, each time the plaintiff brought the victim into the basement, the sexual assaults escalated "to more demanding sex acts," ultimately leading to the plaintiff's rape of the victim on multiple instances when she was fifteen years old.
The plaintiff also made a hole in the victim's closet door to watch her undress. Upon learning about the hole in the closet door, the victim decided she could no longer undress in her own bedroom.
The hearing examiner need not turn a blind eye to the plaintiff's prior sexual misconduct merely because such acts did not result in a criminal conviction. See Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 219, 224 (2020) ("An examiner may consider uncharged sexual conduct where, as here, the evidence of the uncharged conduct is reliable"). Therefore, where there was evidence the plaintiff began targeting the victim when she was only eleven years old, the hearing examiner did not err in giving increased weight to factor 3 (adult offender with a child victim). See 803 Code Mass. Regs. § 1.33(3)(a) (2016) ("Offenders who target prepubescent children, generally younger than [thirteen] years old, are more likely to have a deviant sexual interest and, therefore, pose an even higher risk of reoffense and degree of dangerousness").
At bottom, our review of the hearing examiner's decision "does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion" (citation omitted). Doe No. 524553 , 98 Mass. App. Ct. at 530. We need only review for whether the hearing examiner's decision is supported by substantial evidence. See Doe No. 10800 , 459 Mass. at 632. Accordingly, because the hearing examiner's decision is supported by substantial evidence, we discern no error in the plaintiff's classification as a level two offender.
Judgment affirmed.