Opinion
10-P-2013
03-09-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 200591 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
Doe seeks review after a Superior Court judge's denial of his motion for judgment on the pleadings challenging his classification as a level three sex offender by the Sex Offender Registry Board (board). We affirm.
Doe was found guilty of committing an indecent assault and battery on a person age fourteen or older in violation of G. L. c. 265, § 13H, and two counts of indecent assault and battery on a child under the age of fourteen in violation of G. L. c. 265, § 13B. He was also found guilty of two counts of assault and battery in violation of G. L. c. 265, § 13A. These offenses occurred during 2003 and 2004, when the victim, his female foster child, was between thirteen and fifteen years old. Doe has no other criminal convictions.
Doe asserts insufficiency of the evidence, claiming that the hearing examiner's decision is 'contrary to common sense' and 'lacks a basis of reasonable expectations.' Doe, 'as the appealing party, has the 'heavy' burden of showing that the agency decision . . . is not supported by substantial evidence.' Zoning Bd. of Appeals of Canton v. Housing Appeals Comm., 76 Mass. App. Ct. 467, 472 (2010), quoting from DSCI Corp. v. Department of Telecomm. & Energy, 449 Mass. 597, 603 (2007). 'Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting from G. L. c. 30A, § 1(6). 'This standard is highly deferential to an agency . . . .' Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010).
Doe also asserts that a police report was improperly admitted into evidence as it contained statements constituting hearsay. This claim was properly determined to be baseless by the judge. See G. L. c. 6, § 178L(1); 803 Code Mass. Regs. § 1.22(3) (2002).
The examiner made a careful evaluation of the evidence, citing in particular one of the first six factors specifically designated by the Legislature as high risk indicia of likelihood to reoffend. See G. L. c. 6, § 178K(1)(a)(i)-(vi). To this he added aggravating factors: access to the community for less than five years after commission of the offense(s) forming the basis of the conviction (factor 9[a], see 803 Code Mass. Regs. § 1.40[9][a] [2002]) ; commission of the offense(s) in a place without reasonable expectation of privacy (factor 9[c][1], see id. § 1.40[9][c][1]); convictions of nonsexual violent offenses (factor 9[c][6], see id. § 1.40[9][c][6]) ; and Doe's history of alcohol abuse. All of these determinations are supported by the record.
The examiner cited factor 2, repetitive and compulsive sexual misconduct. The board has determined that compulsiveness is involved if the information regarding the two or more incidents of sexual misconduct indicates:
'(a) a repetition of the manner and method of committing the offenses; (b) a pattern of ritualistic, bizarre, or distinctive acts; (c) that in the interval between acts of sexual misconduct, the offender had sufficient opportunity to reflect on the wrongfulness of his conduct and take remedial measures by avoidance, counseling or otherwise . . . ; (d) adult family members, adult friends, adult co-workers, employers, law enforcement, the court, or social services had sanctioned the offender for sexual misconduct and the offender, nonetheless, committed a subsequent act of sexual misconduct; or (e) the offender committed his acts of sexual misconduct as a result of sudden uncontrollable urges or desires to commit the acts.'803 Code Mass. Regs. § 1.40(2) (2002).
Doe's assertion that the five-year period should be calculated from the time of offense rather than conviction is unavailing -- either calculation meets the test.
Doe's assertion that such offenses must have pre-dated his sexual offense(s) to be considered under this factor is without merit.
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Notwithstanding Doe's assertions, the examiner evinced a clear understanding that two counts of rape of a child with force brought against Doe were nol prossed. The examiner was nevertheless entitled to credit reliable hearsay statements regarding conduct that did not lead to a conviction, and rely on them in a determination of likelihood to reoffend. See Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007).
Finally, the examiner appropriately noted the presence of mitigating factors, and was entitled to conclude that they were insufficient to support a lower classification. The judge was correct in ruling that the hearing examiner's decision is well reasoned and supported by substantial evidence. See Massachusetts Elec. Co. v. Department of Pub. Util., 376 Mass. 294, 312 (1978).
Judgment affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),