Opinion
14-P-158
06-01-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 2883 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 challenges a Superior Court judgment affirming a decision by the Sex Offender Registry Board (SORB) classifying him as a level three sex offender. We affirm.
In 1990, the plaintiff pleaded guilty to indecent assault and battery on a child under fourteen (his eleven year old daughter). In 2004, SORB classified him as a level two sex offender. However, it subsequently came to light that in 1998, the plaintiff had sexually abused his girl friend's five year old daughter, and in 2010, he was convicted of indecent assault and battery on that second victim. Over the years, he was also convicted of a broad variety of other crimes; for example, in 2009, he was convicted of a fourth violation of an abuse prevention order. Based on the new revelations, SORB reclassified him as a level three sex offender.
The plaintiff does not challenge the subsidiary fact finding by the hearing examiner, and most of the arguments he does make on appeal require little discussion. We discern no error in the hearing examiner's application of the regulatory factors that SORB is required to use in determining the level of risk that the plaintiff posed. For example, the hearing examiner carefully considered the mitigating evidence the plaintiff highlighted, but simply chose not to give it as much weight as the plaintiff would. It is SORB's province to weigh the evidence. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011).
The one issue that merits extended discussion is the plaintiff's claim that the hearing examiner erred in denying his request for expert funds. There is some evidence in the record that the plaintiff was diagnosed with bipolar disorder by 2006. Based on this, the plaintiff sought funding from SORB to try to develop how such an illness and any treatment he received for it might affect the risks he presented. On appeal, the plaintiff argues that the hearing examiner abused her discretion in denying his funding request. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770-776 (2008).
We are aware that the Supreme Judicial Court has a pending case, Doe, Sex Offender Registry Bd. No. 380316 v. SORB (SJC No. 11823), in which the court has invited amicus briefs on the following issue:
"Whether, in light of the changes to the sex offender registration statute since its enactment in 1996, the court should revisit its holding in Doe No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 (1998), and now hold that the board is constitutionally required to prove an offender's risk classification by clear and convincing evidence, and not merely by a preponderance of the evidence."The application of a different standard of review would not affect the outcome of the case before us.
This is not a case in which SORB staff based its proposed classification on any mental health issues that the plaintiff had. Nor is it one in which the hearing examiner relied on such issues. The fact that the plaintiff was the one seeking to raise these issues is not fatal to his request for funding, see ibid., but it does help frame the kind of preliminary showing that he had to make to substantiate his claim to such funding. The plaintiff's theory of how expert testimony potentially was pertinent was that: (1) he suffered from bipolar disorder at the time of his sex offending, (2) this disorder was a substantial cause of his offending, and (3) his current treatment for the disorder has reduced his risk of reoffending. The plaintiff's preliminary showing as to all three prongs was markedly thin. The only medical record that the plaintiff submitted to document his diagnosis was an emergency room intake form from 2006 that listed "bipolar" and "depression" in the "past medical history screening" section. Nothing in that form established that the plaintiff suffered such issues at the time of his sex offenses, or suggested a causal link between any such condition and the offending. Moreover, the same form that suggested a past diagnosis of the condition also noted that the plaintiff had stopped taking his medications (seroquel and trazadone) "months ago," and he then overdosed on those medications (the precipitating event behind the emergency room visit). In the face of this dramatic evidence suggesting problems in the plaintiff's ability to control any bipolar disorder, the only evidence the plaintiff offered to the contrary was his own assertion in an undated letter that he has become "reliant on a new regiment of medication to keep [him] functioning [and] to add stability to [his] life." Given the weakness of the plaintiff's preliminary showing that his current mental health treatment may have caused a significant reduction in the risks he presented, he cannot show that the hearing examiner's denial of his requested funding was an abuse of discretion. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. at 775-776 (discussing SORB hearing examiner's discretion whether to grant expert funding).
In fact, a psychological evaluation conducted after the plaintiff's first sex offense revealed no such issues, instead concluding that the plaintiff "does not appear to evidence severe emotional disorder." In addition, during a Department of Correction evaluation in 1995, the plaintiff reported that he had no mental health issues.
Even in an undated letter to SORB, the plaintiff did not assert that his being bipolar caused his sex offending, only that it "affected [his] life greatly."
In sum, the judge correctly affirmed SORB's decision.
Judgment affirmed.
By the Court (Milkey, Brown & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 1, 2015.