Opinion
18-P-439
11-01-2019
CBF, Sex Offender Registry Board No. 405950 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, CBF, Sex Offender Registry Board No. 405950 (CBF), appeals from a Superior Court judgment affirming her classification by the Sex Offender Registry Board (SORB) as a level two sex offender. CBF contends that (1) the level two classification was improper because the hearing examiner's decision lacked substantial evidence; and (2) the matter should be remanded to permit the hearing examiner to make findings as to whether a public safety interest was served by Internet dissemination of her registry information. We affirm.
Background. We summarize the facts found by the hearing examiner. At a house party in December 2006, CBF sat on a couch next to a fourteen year old boy, rubbed his chest, and whispered into his ear in a sexually suggestive manner. CBF later put her hand under the boy's shirt, straddled him, and kissed him. The boy pushed her away, but CBF put her hands in his pants and groped his genitals. When the boy's mother came into the room, CBF mouthed "[o]h shit," and removed her hands from the boy's pants. When the police arrived, they found a highly intoxicated CBF. Charged with indecent assault and battery on a person age fourteen or older, G. L. c. 265, § 13H, CBF later admitted to sufficient facts. The case was continued without a finding during the term of CBF's probation, which ran from 2007 to 2010.
In October 2012, CBF's boyfriend reported to the police that CBF had performed sexual acts on his son on two occasions. The boy was thirteen and CBF was thirty at the time of the sexual acts. The first offense occurred when the father was passed out in bed. CBF gave the boy alcohol, showed him a pornographic movie, and engaged in fellatio, and penile vaginal intercourse. Two months later, while the father was incarcerated, CBF again gave the boy alcohol, showed him pornography, fellated him, and engaged in penile vaginal intercourse. CBF pleaded guilty to charges of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, and disseminating harmful matter to a minor, G. L. c. 272, § 28. CBF received a sentence of two and one-half years in prison, two years to serve, and the balance suspended, with probation until 2021.
SORB preliminarily classified CBF as a level two sex offender in 2013. CBF requested a de novo determination. Evidentiary hearings were held in July 2014, and in January 2017. The hearing examiner found that CBF committed the 2006 offense as alleged; CBF had admitted to sufficient facts in the criminal proceeding, and the victim provided a detailed account that his mother corroborated. The hearing examiner also relied on two high risk factors, namely CBF's age and the age of her two victims (factor 3, adult offender with child victim), and the "repetitive and compulsive" nature of the behavior (factor 2), there being a second incident after she had been prosecuted for the first offense. See 803 Code Mass. Regs. § 1.33(2) and (3) (2016). The hearing examiner also found several risk elevating factors, such as the level of physical contact (factor 19), the public nature of the 2006 offense (factor 16), the number of victims (factor 22), and CBF's history of alcohol abuse (factor 9). See 803 Code Mass. Regs. § 1.33(9), (16), (19) and (22) (2016).
The earlier level two determination was remanded for a new hearing to apply the clear and convincing evidence standard enunciated in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015). The transcript of the 2014 hearing was introduced at the 2017 hearing. No additional testimony was taken.
The hearing examiner found that CBF's alcoholism increased the risk of reoffense, as all three offenses involved alcohol, and gave the alcohol and substance abuse factor "full aggravating weight." See 803 Code Mass. Regs. § 1.33(9) (2016). CBF's mother testified that CBF's life "spiraled downward" after she met her boyfriend. At the 2014 hearing, CBF's expert witness, Dr. Guidry, did not recommend that CBF live with her boyfriend (who also had an alcohol abuse problem) because of her ongoing concern about CBF's alcohol and substance abuse. By the time of the 2017 hearing, CBF had returned to live with her boyfriend, now her fiancé, contrary to Dr. Guidry's (and her mother's and daughter's) recommendation.
CBF's history of alcohol use dated to age eleven.
Further, CBF had incurred unrelated criminal charges in 2006 through 2009. The hearing examiner gave little mitigating weight to CBF's psychological evaluation by Dr. Guidry, home support systems, and sex offender treatment. CBF had been in counselling at the time of the offenses. However, the hearing examiner did give mitigating weight to the fact that CBF remained on probation until March, 2021.
Discussion. "We review a judge's consideration of an agency decision de novo." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). We will not disturb SORB's classification decision unless "the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), citing G. L. c. 30A, § 14 (7). "In reviewing SORB's decisions, we give due weight to the experience, technical competence, and specialized knowledge of the agency." Id., quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013) (Doe No. 205614 ).
1. Substantial evidence. "A level two classification requires a finding, by clear and convincing evidence, that ‘(1) the offender's risk of reoffense is moderate; (2) the offender's dangerousness is moderate; and (3) a public safety interest is served by Internet publication of the offender's registry information.’ " Doe, Sex Offender Registry Bd. No. 23656, 483 Mass. 131, 138 (2019) (Doe No. 23656 ), quoting Doe No. 496501, 482 Mass. at 656. See G. L. c. 6, § 178K (2) (b ) ; 803 Code Mass. Regs. § 1.20(2) (2016). CBF contends that the hearing examiner's decision lacked substantial evidence to prove a level two classification by clear and convincing evidence, and that she therefore misapplied factors enumerated in 803 Code Mass. Regs. § 1.33, all in violation of G. L. c. 30A, § 14 (7) (c ), (e ), and (g ).
a. Expert testimony. CBF maintains that the hearing examiner improperly discredited Dr. Guidry's opinion that CBF presented a low risk of reoffense. Dr. Guidry opined that CBF posed a low risk of reoffense because female offenders typically have a one to three percent reoffense rate. See Doe No. 205614, 466 Mass. at 606.
"[CBF] is not entitled to a guarantee that SORB will reach the same conclusion as [her] expert; [she] is entitled only to careful consideration of [her] expert's testimony." Doe No. 23656, 483 Mass. at 137. "The opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even where the board does not present any contrary expert testimony." Id., quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011).
Here, the hearing examiner gave Dr. Guidry's opinion "limited weight." While Dr. Guidry cited to studies indicating that female offenders rarely reoffend, the hearing examiner permissibly concluded that CBF fell within that one to three percent that did reoffend. The examiner also permissibly concluded that CBF's risk of reoffense increased when she resumed a relationship with her fiancé, the second victim's father. The hearing examiner did not disregard Dr. Guidry's testimony and addressed it where applicable in her findings. "The hearing examiner was entitled to consider this evidence in determining how much weight to assign the expert's ultimate conclusions." Doe No. 23656, 483 Mass. at 138. Indeed, Dr. Guidry testified in 2014 that CBF should not live with her fiancé without significant therapeutic intervention, and that if she resumed drinking, she would likely reoffend. At the time Dr. Guidry gave her opinion, CBF was slated to live with her mother, and Dr. Guidry's opinion was predicated on that fact. The hearing examiner did not err in giving Dr. Guidry's testimony limited weight.
Dr. Guidry testified, "And should we put her in that position [substance abuse and substance abuse induced blackout] again, that's probably going to happen again."
b. Public place. CBF contends that the examiner erred by considering factor sixteen, "public place," because the regulations do not cite to a female offender specific study for this factor. See 803 Code Mass. Regs. § 1.33(16) (2016). Since Doe No. 205614, SORB has updated its guidelines to consider the relationship between gender and recidivism. The hearing examiner carefully considered the revised guidelines, and the research specific to a female's likelihood of reoffense. There was no gender specific research regarding factor sixteen. Decidedly, SORB should be cognizant of the available literature, see Doe No. 205614, 466 Mass. at 608, but the hearing examiner did rely on the research available at the time of the hearing, and no countervailing research was offered concerning the public place factor. Compare id. The hearing examiner therefore did not err in applying the public place factor to CBF. Furthermore, even if we were to discount this factor entirely, the evidence remaining was more than sufficient to support the classification.
2. Internet dissemination. The hearing examiner's decision preceded Doe No. 496501, and the hearing examiner did not make an explicit finding that Internet dissemination served a public safety interest. Cf. Doe No. 496501, 482 Mass. at 662 & n.6 ; Doe No. 23656, 483 Mass. at 145. However, where " ‘the underlying facts of the case ... so clearly dictate the appropriate classification level,’ we do not exercise our discretion to remand ... on this element." Doe No. 23656, supra, quoting Doe No. 496501, supra at 657 n.4. All three of CBF's offenses involved physical contact with adolescent boys; two involved intercourse. One occurred in a public place. An order "would [ ] enable residents, including those with minor children, to determine whether [CBF] lives in their neighborhood, which might have an impact on their decisions regarding the supervision of their children." Doe No. 23656, supra at 146. "Because we determine that there was substantial evidence to support each element by clear and convincing evidence, we conclude that there was no error in the hearing examiner's classification of [CBF] as a level [two] sex offender." Id.
"Other points, relied on by the [petitioner] but not discussed [here], have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
--------
Judgment affirmed.