Opinion
18-P-592
04-19-2019
R.M. 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 Sex Offender Registry Board (board) ordered R.M. to register as a moderate risk, or level two, offender. A Superior Court judge affirmed the board's decision. This appeal followed. We affirm.
The hearing examiner found that in July, 2011, an eight year old girl told her mother that R.M., the brother of the mother's boyfriend, had sexually assaulted her. The mother contacted the police, who investigated and took statements from both the mother and the victim. According to the police reports, the victim stated that R.M. had twice assaulted her, once in the spring of 2011 and a second time in July, 2011; on both occasions R.M. approached the victim while she was in the living room -- on the first occasion while she was watching television and the second while she was sleeping -- put his hand inside her clothing, and rubbed the outside of her vagina. In January, 2013, R.M. pleaded guilty to a single count of indecent assault and battery on a child under fourteen, arising from the second, July, 2011, attack. A second count of indecent assault and battery on a child under fourteen, arising from the earlier attack, was nolle prossed. R.M. was sentenced to a term in the Hampden County house of correction to be followed by supervised probation.
For present purposes we need not detail the ensuing procedure except to note that in June, 2017, after a de novo hearing, a hearing examiner concluded that although R.M. had pleaded guilty only to charges related to the second, July, 2011, attack, R.M. had in fact committed both the spring and July, 2011 attacks as alleged. In so finding, the examiner ruled that:
"Despite the fact that the [p]etitioner was convicted of only one count of indecent assault and battery on a child under age 14 that occurred on July 9, 2011, I also find as fact that [R.M.] indecently assaulted the girl in the spring of 2011 as she also alleged. The [v]ictim could remember the approximate time of year the indecent touching occurred, the exact TV show she was watching and the location of the assault. Further bolstering the spring 2011 incident is that he touched her vagina under her pants in the same manner as he did in July 2011, demonstrating a very similar pattern of offending. Furthermore, the sexual assaults occurred in the same location, the living room, and within a fairly short period of time of each other. Therefore I find [the victim's] statements as set forth in the Springfield Police Department report to be reliable and credible under the indicia of reliability standard required at these administrative hearings. [R.M.'s] sexual
misconduct was . . . not isolated to one incident, thereby demonstrating repetitive and compulsive behavior."
We do not agree that the examiner improperly admitted and considered the victim's hearsay statements. It is well established that an "examiner may admit and give probative effect to evidence 'if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.' . . . In the context of administrative proceedings, hearsay evidence bearing indicia of reliability constitutes admissible and substantial evidence." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011). We are satisfied, for substantially the reasons articulated by the hearing examiner and despite possible minor inconsistencies in the victim's and her mother's recollections, that the victim's statements here show such indicia and that the examiner properly admitted and considered them. See and compare Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 313 (2007) (examiner properly admitted and considered victim's statements, as reflected in partly illegible MBTA police report and as summarized in board's classification report, where "[t]he victim's story . . . was plausible, consistent and highly detailed").
The victim reportedly told police the first assault took place in the spring and the second "the other night." The mother reported that her daughter told her that the incidents took place "a long time ago when she was sleeping" and "that it happened again yesterday."
Equally without merit are R.M.'s due process, double jeopardy, and substantial evidence arguments insofar as those arguments are premised on the assumption that the examiner improperly considered the victim's hearsay statements. See Opinion of the Justices to the Senate, 423 Mass. 1201, 1229-1231, 1237-1242 (1996). Nor are we persuaded that Arnone v. Commissioner of the Dep't of Social Servs., 43 Mass. App. Ct. 33 (1997), requires a different result. In Arnone we held only that a finding by "DSS" that a teacher had emotionally abused a child, based on hearsay reports of an incident "about sexual abuse [that] did not happen," could not be sustained where other "than the story that the DSS investigator could not credit, there was no evidence of what harm [the teacher] did to the child." Id. at 37. Such is not the case here. Not only were the present victim's and her mother's statements pertaining to the initial spring attack consistent, detailed, and credible, they were plausibly corroborated by, among other things, R.M.'s guilty plea on the nearly identical July, 2011 attack.
"The evidence before the fair hearing officer consisted of multilevel hearsay about a report, told three times, by a four year old that his teacher had cut or cut off his penis and put a ball in it or put it in a bottle. Manifestly that had not occurred, as the boy's penis, on examination, was securely attached, unmarred and unscarred" (footnote omitted). Arnone, 43 Mass. App. Ct. at 35-36.
In short, "upon consideration of the entire record" and after giving "due weight to the experience, technical competence, and specialized knowledge of the" board, G. L. c. 30A, § 14 (7) (g), we are satisfied that the evidence before the examiner was sufficiently substantial to convey to the board a "high degree of probability" that R.M. poses a moderate risk of dangerousness and recidivism. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 309 (2015), quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 588 n.3 (1977). To the extent we have not specifically commented, we have considered Doe's remaining arguments and have found them to be without merit. See Commonwealth v. Silva, 93 Mass. App. Ct. 609, 619 n.8 (2018).
Judgment affirmed.
By the Court (Hanlon, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 19, 2019.