Opinion
11-P-1719
04-18-2013
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22560 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 (Doe), a convicted sex offender, appeals from a Superior Court judgment affirming a decision by the Sex Offender Registry Board requiring him to register as a level three offender. Doe argues that the hearing examiner's decision was not supported by substantial evidence and that the examiner improperly discounted Doe's expert testimony. We affirm.
I. Background. In February, 2008, the Sex Offender Registry Board notified the plaintiff, Doe, to register as a level three sex offender. Doe challenged the board's decision and the board held a classification hearing on August 20, 2008. Doe introduced expert testimony from Eric Brown, Psy.D. Brown opined that because of Doe's pretrial success in remaining sober, he presented a low risk of reoffense and dangerousness. After reviewing the evidence and applying the material evidence to the relevant statutory and regulatory factors, the hearing examiner concluded the board proved by a preponderance of the evidence that the plaintiff posed a high risk of recidivism and dangerousness to public safety. Doe timely appealed the hearing examiner's decision to the Superior Court pursuant to G. L. c. 6, § 178M. The Superior Court affirmed the board's classification decision, concluding, '[b]ased upon the totality of the evidence, the [h]earing [e]xaminer's determination that the level of classification should remain at high-risk . . . was well supported.' Doe has appealed from that decision.
Brown only considered Doe's 1994 conviction of rape in his evaluation. He did not consider 1987 allegations of rape of a child with force and indecent assault and battery because the grand jury did not indict Doe on those charges and the case was nol prossed.
The board's decision will only be set aside if the reviewing court 'determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law. G. L. c. 30A, § 14(7)(e), (g).' Doe, Sex Offender Registry Bd. No. 10216. v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) (Doe, 10216). Under the substantial evidence standard, see G. L. c. 30A, § 1(6), the reviewing court 'shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it. G. L. c. 30A, § 14(7).' Doe, 10216, supra.
II. Discussion. Expert testimony. Doe contends that because the hearing examiner did not consider Doe's 1987 unindicted episode, it was improper for the examiner to discredit the expert's opinion for failing to consider the same episode. Specifically, Doe argues that it was 'hypocritical for the [h]earing [e]xaminer to announce he would not consider the unindicted episode but find fault when the expert gave the same incident minimal consideration.' Doe's argument misses the mark.
The hearing examiner's duty is to 'assess the reliability of the exhibits introduced into evidence and credibility of witnesses; draw all reasonable inferences therefrom and render a fair, independent and impartial decision based on the issues and evidence presented and in accordance with the law.' 803 Code Mass. Regs. § 1.21(1)(g) (2002). In the instant case, the hearing examiner was reasonably concerned with Doe's serious and repeated history of substance abuse (approximately thirteen years) prior to his conviction. The hearing examiner did not assess the 1987 allegations of rape; rather he considered whether Doe was under the influence when the acts in 1987 and 1994 were committed. The hearing examiner noted that the plaintiff 'appears to have made significant efforts to maintain sobriety' but that it is more difficult outside prison than in and he had only been at liberty ten months.
General Laws c. 6, § 178K(1)(a)(i)-(vi), enumerates a list of 'high risk' factors that the hearing officer must consider when determining the risk of reoffense and degree of dangerousness. Among this list is whether the offender's conduct is deemed repetitive and compulsive behavior. These factors can and should be balanced against any mitigating factors enumerated in G. L. c. 6, § 178K(1)(c)-(l). Among these mitigating factors is whether Doe is under probation or receiving counseling, his current home situation, and his family life (his relationship with his girlfriend).
Specifically, the hearing examiner stated, 'His drug and alcohol addictions at the time were especially profound and his judgment not only impaired but obliterated.'
By focusing on Doe's long-standing history of severe alcoholism and drug abuse, the hearing examiner could reasonably conclude that Doe's substance abuse problems were causally connected to his offending sexual behavior, and, in turn, to his current recidivism risk. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 777 (2008) (court found no error in the hearing examiner taking into account the offender's misconduct in an unindicted allegation to determine if the sex offender's conduct was repetitive and compulsive).
Doe also incorrectly argues that expert evidence must be provided in the record to support a conclusion and that the hearing examiner erred when he failed to adopt Doe's expert witness's opinion. 'It is the province of the board . . . to weigh the credibility of the witnesses and to resolve any factual disputes.' Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe, 10800). The hearing examiner is not obligated to accept the expert's opinion as to the plaintiff's risk to reoffend. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 764 (2006). 'The opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even when the board does not present any contrary expert testimony.' Doe, 10800, 459 Mass. at 637. Doe's attack on a stranger victim, threat of violence during that episode, criminal history, and refusal of level IV treatment were examined by the hearing examiner to determine whether Doe should be classified as level three offender. The hearing examiner, after carefully considering and weighing all the evidence, concluded that the mitigating factors did not outweigh the risk of reoffense and the degree of dangerousness. In sum, the hearing examiner's decision, after assessing the evidence and relevant risk factors, to require Doe to register as a level three sex offender was supported by substantial evidence.
Brown opined at the hearing that Doe, based on his relatively good behavior while incarcerated, presented a low risk of reoffense and dangerousness. Brown's decision was predicated on the assumption that Doe would remain sober. At the time of hearing, Doe had only been at liberty for ten months and was not receiving any postrelease supervision.
III. Conclusion. The judgment of the Superior Court affirming the decision and requiring Doe to register as a level three offender is affirmed.
Judgment affirmed.
By the Court (Cypher, Brown & Cohen, JJ.),