Opinion
14-P-160
04-29-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 8745 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 appeals from a Superior Court judgment affirming a determination of the Sex Offender Registry Board (SORB) classifying him as a level two sex offender. The plaintiff argues that the hearing examiner lacked substantial evidence to support his classification. He also contends that SORB failed to determine that his risk of sexual reoffense is current. We affirm.
Discussion. We review the hearing examiner's decision to determine if it is unsupported by substantial evidence, arbitrary or capricious, an abuse of discretion, or based on an error of law. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006); G. L. c. 30A, § 14(7). The SORB is required to take into consideration a list of statutory factors promulgated in 803 Code Mass. Regs. § 1.40 (2013) to determine an offender's risk of reoffense and degree of dangerousness posed to the public.
The hearing examiner applied the statutory factors in determining that the following factors increased the plaintiff's risk of reoffense and dangerousness: (1) the plaintiff was convicted of rape, a sexually violent offense, see 803 Code Mass. Regs. § 1.40(9)(c)(12); (2) the plaintiff's rape victim was "extrafamilial," which increases the pool of potential victims for reoffense, see 803 Code Mass. Regs. § 1.40(7); (3) the plaintiff attempted to vaginally rape the victim and, failing, forced her to perform fellatio, see 803 Code Mass. Regs. § 1.40(9)(c)(3) (multiple sex acts "demonstrate[] increased deviant arousal"); (4) the plaintiff denies responsibility for the rape, see 803 Code Mass. Regs. § 1.40(9)(c)(13); (5) the plaintiff's incarceration history contains assaults on correction officers and inmates and demonstrates unsatisfactory adjustment to incarceration, see 803 Code Mass. Regs. § 1.40(19); (6) the plaintiff has violated his probation four times, see 803 Code Mass. Regs. § 1.40(20); (7) the plaintiff has not lived in the community for five years without committing a crime, see 803 Code Mass. Regs. § 1.40(9)(a); (8) the plaintiff failed to successfully participate in sex offender treatment, see 803 Code Mass. Regs. § 1.40(17); (9) the plaintiff has numerous convictions of violent crimes, which shows he can act violently and with no regard for the safety of others, see 803 Code Mass. Regs. § 1.40(9)(c)(6); (10) the plaintiff's extensive criminal history demonstrates his propensity for lawlessness and antisocial behavior, see 803 Code Mass. Regs. § 1.40(9)(b); (11) the plaintiff previously has abused alcohol, cocaine, and heroin, which may act to disinhibit sexual urges, see 803 Code Mass. Regs. § 1.40(16); and (12) the plaintiff's use of a weapon during the rape increases his risk of reoffense and dangerousness to the public, see 803 Code Mass. Regs. § 1.40(8).
The plaintiff contests the examiner's application of the use of a weapon factor, arguing that the police report did not make explicit that the plaintiff brandished a weapon in the commission of the rape. This claim overlooks his related conviction of "armed robbery in this incident." The report indicated that the plaintiff told the rape victim and another man, "Don't either of you move, or I will blow your brains out." The examiner could reasonably have inferred from the plaintiff's "conduct and words" that the woman feared his use of a weapon during the rape. Commonwealth v. Jackson, 419 Mass. 716, 724 (1995). Moreover, even if the hearing examiner erred in applying 803 Code Mass. Regs. § 1.40(8), the error is harmless, as the examiner's determination is supported by her finding eleven other applicable risk factors.
The hearing examiner also considered two mitigating factors: (1) the passage of time from the date of the plaintiff's single sex offense conviction, and (2) his recent positive adjustment to incarceration. What weight to give each factor lies within the examiner's discretion. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006). "As 'long as the [SORB]'s interpretation of its regulations and statutory mandate is rational, and adhered to consistently, it should be respected and given substantial deference." Id. at 813, quoting from Midland States Life Ins Co. v. Cardillo, 59 Mass. App. Ct. 531, 537 (2003). Accordingly, we conclude there was nothing arbitrary or capricious in the judge's determination that the twelve applicable risk factors, when weighed against the two mitigating factors, supported a level two sex offender classification.
The plaintiff's second assertion -- that the hearing examiner failed to make a written finding pertaining to whether the plaintiff currently presents a risk of reoffense or danger to the public -- requires little examination. See Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 387 (2009) (requiring such findings). The statutory risk factors delineated in 803 Code Mass. Regs. § 1.40 are deliberately designed to assess an individual's current risk of reoffense or danger to the public. See id. at 387-388. In applying those factors, the hearing examiner found that the plaintiff presented a current moderate risk to the public. For example, she found that the plaintiff "presents a moderate risk to reoffend, and poses a moderate degree of dangerousness." These findings are in the present tense, as is clear by her use of the words "presents" and "poses."
The examiner referenced the plaintiff's criminal past only in the context of assessing the degree of that risk. She stated, "I am mindful that [the plaintiff] committed a single sex offense more than [thirty] years ago and there were no subsequent allegations of sexual misconduct thereafter. Therefore, I find that the [p]laintiff presents a moderate risk to reoffend and poses a moderate degree of dangerousness to the community." Seeing no error of law or abuse of discretion, we affirm. See ibid.
Judgment affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 29, 2015.