Opinion
13-P-301
04-01-2014
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 9224 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a judgment of the Superior Court affirming a hearing examiner's decision denying Doe's request to be relieved of registration and requiring him to register as a level 1 (low risk) sex offender. We affirm.
On March 18, 1982, Doe was convicted of one count of rape, arising from an incident on November 30, 1980 (index offense). He was sentenced to five to seven years in prison, served four, and, on December 29, 1988, completed a period of parole. On April 12, 2011, Doe was notified by the Sex Offender Registry Board (board) of a preliminary determination that he was required to register as a level 2 (moderate risk) offender. Doe requested an administrative hearing, and filed a motion for relief from registration. At the time of the administrative hearing, Doe was fifty-three years old and married. Doe provided evidence that since being released into the community, he has not been tried or convicted of another sex offense; he has successfully worked in the food service industry; he is a father and grandfather and has sole custody of his young child and sole guardianship of a stepdaughter; and he has an extensive support system as evidenced by letters from family and friends. Doe also submitted scholarly articles supporting the view that risk of reoffense declines with age.
As reflected in the administrative record, which included the police report and the victim's grand jury testimony, the victim was a guest at Doe's sister's wedding. She had met Doe a few months earlier, at Doe's brother's wedding, but had no intervening contact with him. At the conclusion of Doe's sister's wedding reception, the victim was invited to an after party at the bride's mother's home. Doe attended the party, and, as the victim was leaving, asked her to come with him to see a picture he made. Doe drove her to his house, where Doe consumed three alcoholic beverages. When the victim rejected his overtures, Doe's demeanor changed, and he became 'violent.' He carried her upstairs to his bedroom and, over her protests and screams, raped her repeatedly -- performing cunnilingus, inserting his fingers into her vagina, putting his penis in her mouth, and putting his penis into her rectum 'many' times. At one point, Doe attempted to suffocate her. The victim sustained multiple physical injuries in the attack.
Previously, Doe had been charged with failure to register as a sex offender, but that charge was dismissed after the payment of court costs.
In 1993, Doe was charged with indecent assault and battery on a person fourteen years of age or older, but the case was dismissed for lack of prosecution. In view of that dismissal, the examiner expressly declined to consider the charge in making her decision. Doe was not entirely offense free after completing his period of incarceration and parole. He was convicted of a nonsexual offense in 1997 -- the passing of a worthless check.
At the time of the hearing, Doe was unemployed. He last worked in 2009.
Based upon these considerations, Doe argued that he should not be required to register at all, but, in the alternative, he should be classified as a level 1 offender. After reviewing all the evidence before her, the examiner concluded: (1) that Doe had not demonstrated that he should be relieved of registration, and (2) that SORB had sustained its burden of proving that he should register as a level 1 offender. Doe sought review in the Superior Court, where the judge allowed the board's motion for judgment on the pleadings.
On appeal, Doe argues that the examiner's decision was unsupported by substantial evidence. We disagree. As a threshold matter, there is no merit to Doe's suggestion that the examiner failed to consider his current circumstances and impermissibly based her decision solely upon the index offense. It is plain from her decision that, as required by Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 784-785 (2008), the examiner did not view Doe as automatically excluded from relief from registration pursuant to G. L. c. 6, § 178K(2)(d), by virtue of the fact that the index offense is designated a sexually violent offense. It also is plain from her decision that, in accordance with Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 386-387 (2009), she gave meaningful consideration to Doe's claim that he presents no current risk of reoffense or threat to the public. The examiner explicitly considered his lack of recent criminal history, his age, and the supportive environment in which he lives as mitigating factors. However, she ultimately reasoned that the circumstances of the offense and Doe's continuing failure to take responsibility for the crime supported the conclusion that he posed a risk -- albeit a low risk -- of reoffense and danger to the public.
To the extent that Doe argues that the examiner improperly placed the burden on him to show that he should be relieved from registration, the argument lacks merit. See Doe No. 8725, supra at 793 (offender subject to retroactive application of registration law may be relieved of registration law if '[he] can establish that he poses neither a risk of reoffense nor a danger to the community'). See G. L. c. 6, § 178K(2)(d) (offender has burden of proving that he should be relieved of registration). See also 803 Code Mass. Reg. § 1.37A (2004) (same). With respect to establishing Doe's proper classification, the examiner correctly placed the burden on the board.
Doe consistently has maintained that all acts were consensual.
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Doe also contends that the examiner made three critical errors that undermine her decision. First, he claims that the victim should not have been considered to be an 'extrafamilial acquaintance,' because she was an intimate friend of the family. However, in Doe's request for findings, he proposed that the victim be found to be an 'extrafamilial' acquaintance rather than a stranger. The examiner decided this issue as Doe requested, and the finding was supported by the evidence. See note 1, supra.
Doe also claims that the examiner erroneously relied upon substance abuse as a factor. However, the evidence supported her findings that Doe had 'a remote criminal history suggestive of substance abuse,' i.e., a conviction for possession of a class D substance and a charge of operating while intoxicated, and that the victim reported that Doe had been drinking prior to raping her. In any event, it appears that substance abuse concerns played little, if any, role in the examiner's conclusion.
Finally, Doe argues that the examiner failed to consider his age as a mitigating factor, as required by Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 621 (2010). This is incorrect. The examiner specifically noted that case, reviewed and discussed the scholarly articles Doe submitted, and explicitly considered his age in mitigation.
In sum, the examiner reasonably concluded, based upon substantial evidence, that Doe's over-all level of risk to reoffend and degree of dangerousness was not completely ameliorated by risk-reducing factors and that he should be required to register as a level 1 (low risk) offender. See Doe, Sex Offender Registry Bd. No. 1211, 447 Mass. 750, 762-764 (2006). Accordingly, the judgment is affirmed.
So ordered.
By the Court (Cohen, Brown & Rubin, JJ.),