Opinion
No. 12–P–224.
2013-05-3
John DOE, Sex Offender Registry Board No. 2947 v. SEX OFFENDER REGISTRY BOARD.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
John Doe appeals from a Superior Court judgment affirming the decision of the Sex Offender Registry Board (board) to classify him as a level three sex offender. We affirm.
Background. Our recitation of facts, largely undisputed, is taken from the judge's findings. In 1996, Doe pleaded to sufficient facts on two counts of indecent assault and battery on a child under the age of fourteen for sexually abusing his young daughter on multiple occasions during the 1980s.
In 2001, Doe pleaded guilty to aggravated rape and indecent assault and battery of a thirty-five year old mentally impaired woman whom Doe and his codefendant had met just minutes before the assault. At the time of both the 1980 and the 2000 sexual offenses, Doe was on probation for unrelated crimes. Doe has a lengthy criminal history including convictions of assault by means of a dangerous weapon, assault and battery on a police officer, larceny, extortion, burglary, possession of various drugs, and driving under the influence of intoxicating liquor. Doe also has had a substance abuse problem in the past, although he claimed to be sober at the time of the hearing. During his most recent incarcerations from 2001 through 2009, Doe refused to participate in sexual offender and substance abuse counseling.
The Commonwealth dismissed six additional charges when Doe agreed to plead to sufficient facts on the indecent assault and battery charges.
In May, 2008, the board notified Doe of his obligation to register as a level 3 sex offender. Following a de novo hearing on November 18, 2009, the hearing examiner concluded that Doe was a high risk to reoffend and posed a high degree of danger to the public. Doe sought appeal in the Superior Court. After a hearing, the Superior Court affirmed the board's decision to classify Doe as a level 3 sex offender.
It is unclear whether Doe participated in treatment during his earlier incarceration.
Discussion. Doe cites a number of reasons why the hearing examiner's decision should be overturned on appeal; we consider each in turn. First, Doe argues that the evidence before the hearing examiner was insufficient to support his classification. In reviewing the decision, “we ‘give due weight to the experience, technical competence, and specialized knowledge’ of the board.” Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010) ( Doe 151564 v. SORB), quoting from G.L. c. 30A, § 14(7). The hearing examiner found that the following facts supported Doe's classification: Doe sexually abused two victims: his three year old daughter—an intrafamilial, extravulnerable child—and an adult who was mentally impaired. Both offenses occurred while Doe was on probation for other, unrelated crimes. Doe's long criminal history, refusal to attend treatment programs, and his short time in the community since his release from incarceration also factored into the hearing examiner's decision. Moreover, the hearing examiner found that the few favorable facts in the record did not lessen the concern regarding Doe's risk to reoffend. Because this record amply supports the hearing examiner's conclusion that Doe presents a high degree of dangerousness and high risk of reoffending, there was no error in affirming the board's classification.
Second, Doe complains that the hearing examiner acted arbitrarily and capriciously when he failed to consider Doe's age as a factor pertaining to the risk of reoffending. We note that the Superior Court judge found that the hearing officer considered the studies submitted by Doe, but determined that age was not a factor enumerated in G.L. c. 6, § 178K(1)(a)-(1), and that the hearing officer was therefore not required to consider Doe's age in classifying him as a level 3 offender. We find no reason to disturb this decision.
Moreover, even accepting Doe's reading of Doe 151564 v. SORB, 456 Mass. at 622, as requiring consideration of the effect of age on recidivism, we note that the study to which Doe points in support of his argument that his advanced age (fifty-five) puts him at lower risk to reoffend does not support his argument. The study generally concludes that a rapist's risk of recidivism gradually declines after about age twenty, while a child molester's risk does not decline until about age sixty. However, the study does not address offenders, like Doe, who have been classified as both a rapist and a child molester.
Third, Doe asserts that the examiner failed to make a specific finding that his behavior was both “repetitive and compulsive” in accordance with G.L. c. 6, § 178K(1)(a)(ii), as appearing in St.1999, c. 74, § 2. This issue was not raised below and is not properly before us on appeal. See Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67, 70–71 & n. 1 (2012). See also Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 763 & n. 10 (2006) (multiple sexual acts properly characterized as repetitive and compulsive). Doe's suggestion that the board failed to carry its burden because it did not introduce expert testimony is also meritless. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011), citing Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 786 (2006) (board is not required to present expert testimony).
Finally, we similarly decline to address Doe's argument, raised for the first time on appeal, that his due process and equal protection rights were violated by the hearing examiner's refusal to provide funds for an expert witness. See Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. at 70–71 & n. 1.
Judgment affirmed.