Opinion
18-P-621
09-19-2019
John DOE, Sex Offender Registry Board No. 523294 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff pleaded guilty to rape of a child and indecent assault and battery on a child under age fourteen; the victim was the older of his two daughters. The Sex Offender Registry Board (SORB) recommended a level three sex offender classification for Doe, and Doe requested a hearing to challenge SORB's classification. The hearing examiner also classified Doe as a level three sex offender.
The Commonwealth nol prossed an indecent assault and battery charge related to Doe's alleged sexual assault of his younger daughter.
Doe sought judicial review of his classification pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M, and moved for judgment on the pleadings. While the Superior Court action was pending, the hearing examiner issued an amended decision, but confirmed Doe's classification as a level three sex offender. A judge denied Doe's motion, and upheld SORB's classification. Doe contends that the hearing examiner's classification was arbitrary and capricious because he made factual errors in his initial decision, misapplied the relevant statutory factors, and improperly relied on hearsay evidence. We affirm.
Standard of review. A sex offender "may seek judicial review ... of the board's final classification, reclassification and registration requirements" pursuant to G. L. c. 6, § 178M. "An appeal from a SORB classification decision is confined to the administrative record." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391 ). "We review a judge's consideration of an agency decision de novo," but give "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" (quotation and citation omitted). Id. at 88-89. Accordingly, we will set aside a SORB classification only if we "determine[ ] that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law" (quotation and citation omitted). Id. at 88. "Substantial evidence" is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6).
Discussion. 1. Admission of hearsay testimony. Doe asserts that the hearing examiner improperly relied on hearsay evidence that Doe sexually assaulted his younger daughter when she was three years old. "A hearing examiner is not bound by the rules of evidence applicable to court proceedings," and "may admit and give probative effect to that evidence [on] which reasonable persons are accustomed to rely in the conduct of serious affairs" (quotation and citations omitted). Doe No. 523391, 95 Mass. App. Ct. at 89. "In the context of a sex offender classification hearing, hearsay evidence may be admissible if it bears sufficient indicia of reliability." Id. The hearing examiner "should consider ... the general plausibility and consistency of the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration" (quotation and citation omitted). Id. "Common indicia of reliability include a detailed account, ... the consistency of the hearsay incident with other, known behavior, ... admissions by the offender, ... and independent corroboration." Id. A hearing examiner may consider hearsay evidence related to untried offenses, particularly when the evidence demonstrates a "common course of conduct" by the petitioner. Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015) ( Doe No. 356011 ), quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 639 (2011). See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 777 (2008) (Doe No. 89230 ) (hearing examiner properly considered charges continued without finding where conduct underlying charges demonstrated "pattern of behavior"); Doe No. 523391, 95 Mass. App. Ct. at 89, quoting Covell v. Department of Social Servs., 439 Mass. 766, 785-786 (2003) ("detailed and consistent reports of abuse considered substantial evidence despite being presented only through hearsay sources").
Here, the younger daughter's hearsay statements about her sexual assault were substantially reliable. See G. L. c. 30A, § 1 (6) ; Doe No. 523391, 95 Mass. App. at 90; Doe No. 356011, 88 Mass. App. Ct. at 79-80. As an initial matter, the Commonwealth's decision not to prosecute Doe for his alleged assault on his younger daughter did not detract from the reliability of her statements. See Doe No. 523391, supra at 89 ; Doe No. 356011, supra; Doe No. 89230, 452 Mass. at 776-778. Moreover, the younger daughter's accounts of the assault were detailed, consistent, and corroborated by other sources. See Doe, No. 523391, supra. During a forensic interview in Ohio, the younger daughter drew a stick figure and wrote the word "lick" with an arrow pointing to the stick figure's crotch area. She reported that Doe touched her "gonads" with his "lips and tongue," and exposed his genitalia, asking her to "lick them." Similarly, in her interview with Massachusetts authorities, the younger daughter reported that Doe "licked her on the part of her body where she went to the bathroom." The younger daughter's description of her sexual assault mirrored the older daughter's report that Doe touched her "vagina" with "his mouth and hands," suggesting that Doe followed "a common course of conduct" during both assaults (citation omitted), Doe No. 356011, supra at 79. See Doe No. 89230, supra. Doe's former wife further corroborated the younger daughter's account by reporting that the younger daughter engaged in strange behavior around the time of the alleged assault. See Doe No. 523391, supra at 89. In view of all of these factors, the hearing officer reasonably credited the younger daughter's hearsay statements. See id.
2. Application of statutory factors. Doe next contends that the hearing officer misapplied statutory factors when determining Doe's level three classification. "SORB is required to consider a list of statutory factors in making its classification determinations." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014) (Doe No. 68549 ). SORB may classify a petitioner as a level three sex offender upon clear and convincing evidence that the petitioner has a high risk of reoffending, a high level of dangerousness, and that a public safety interest is served by active dissemination of the offender's registry information. See G. L. c. 6, § 178K (2) (c ) ; Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019) (Doe No. 496501 ); Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015). "A hearing examiner has discretion ... to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor." Doe No. 68549, supra at 109-110. Our review "does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion ... but only whether a contrary conclusion is not merely a possible but a necessary inference" (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015).
The hearing examiner here applied multiple factors supporting the conclusion that Doe poses a high degree of danger to the public. The hearing examiner found that two high risk factors supported Doe's level three classification, namely, that he was an adult offender with child victims (factor 3) and that he engaged in repetitive and compulsive behavior (factor 2). See 803 Code Mass. Regs. § 1.33(2)(a), (3)(a) (2016). Doe argues that factor 2 does not apply to him, reprising his claim regarding the sufficiency of the evidence that he sexually assaulted his younger daughter. As previously discussed, however, there was sufficient evidence that Doe sexually assaulted his older daughter when she was between eight and nine years old, and his younger daughter when she was approximately three years old. Additionally, as the hearing examiner found, those two assaults occurred between January 2005 and June 2006, meaning that Doe had "time or opportunity, between the episodes" to reflect on his conduct. 803 Code Mass. Regs. § 1.33(2)(a) (2016).
Doe does not appear to dispute the hearing examiner's application of high risk factor 3.
The hearing examiner also found that six risk elevating factors supported Doe's classification. The hearing examiner found that Doe had a history of substance abuse that contributed to his sexual assault of his older daughter (factor 9), had a lengthy criminal record (factor 10), engaged in nonsexual violence (factor 11), had an extravulnerable victim (factor 18), digitally penetrated his older daughter's vagina (factor 19), and had sexually assaulted two victims (factor 22). See 803 Code Mass. Regs. § 1.33(9)(a), (10)(a), (11)(a), (18)(a), (19)(a), (22)(a) (2016). Doe contests factors 18 and 22, once again asserting that there was insufficient evidence that he sexually assaulted his younger daughter. For the reasons discussed above, we reject this argument. Doe also argues that the hearing examiner improperly applied factor 9 because Doe purportedly completed substance abuse treatment. Factor 9 would still apply, however, because Doe failed to provide relevant information about the substance abuse treatment to the hearing officer, and because Doe's "substance use was a contributing factor in the sexual misconduct" against his older daughter. 803 Code Mass. Regs. § 1.33(9)(a) (2016). Doe further suggests that factor 10 does not apply to his case because "the index crime is his sole sex offense." Although Doe's other crimes were not sexually based, the hearing examiner reasonably concluded that Doe's "long history of criminal behavior," which spanned from 1989 to 2014 and included multiple charges and convictions of both violent and nonviolent crimes, was relevant to Doe's current dangerousness. See 803 Code Mass. Regs. § 1.33(10)(a) (2016).
Doe also points to several factors that do not apply to him as proof that he does not pose a high risk to others. The absence of risk factors does not, however, "reduce an offender's risk of reoffense or lower his degree of dangerousness." 803 Code Mass. Regs. § 1.33 (2016). See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass 779, 788 (2006) (Doe No. 10216 ) ("The inapplicable factors do not count against an offender's risk level as they are not considered or weighed in the classification process"). For example, citing factor 7, Doe contends that he poses less of a risk because his victims were family members. Factor 7, however, stipulates that "having an intrafamilial victim is not a risk mitigating, nor a risk elevating, factor." 803 Code Mass. Regs. § 1.33(7)(a) (2016). Similarly, although Doe contends that his risk of reoffending is lower because he adjusted well to prison (factor 12), this factor affects the classification only for offenders who act violently in prison, not offenders who follow institutional rules. See 803 Code Mass. Regs. § 1.33(12)(a) (2016) ("Offenders are expected to comply with the rules of the institutional setting"). None of the factors that Doe raises would affect his classification. See Doe No. 10216, supra; 803 Code Mass. Regs. § 1.33 (2016).
We discern no error in the hearing examiner's review and determination regarding the risk mitigating factors. See Doe No. 68549, 470 Mass. at 109-110. The hearing examiner considered several mitigating factors, but ultimately weighed them against Doe's increased risk factors. See id. For example, the hearing examiner considered letters of support from Doe's family and friends (factor 33), but gave the letters minimal mitigating weight because the letter writers did not indicate how they would support Doe upon his release. See 803 Code Mass. Regs. § 1.33(33)(a) (2016). Similarly, although the hearing examiner acknowledged that "advanced age" is a mitigating factor (factor 30), he emphasized that Doe was forty-one years old at the time of his classification, and that the risk of recidivism for offenders with child victims declines only when the offender is sixty years of age or older. See 803 Code Mass. Regs. § 1.33(30)(a) (2016). Finally, the hearing examiner considered Doe's past success with probation (factor 28), but again weighed this factor against Doe's risk increasing factors. See 803 Code Mass. Regs. § 1.33(28)(a) (2016). The hearing examiner had the discretion to determine "how much weight to ascribe" to the mitigating factors, and we discern no error in his determination. See Doe No. 68549, supra at 109.
3. Errors in initial decision. Doe argues that factual errors in the hearing examiner's initial decision render Doe's classification arbitrary and capricious. We disagree. The hearing examiner's amended classification acknowledged motions that Doe submitted following the initial classification, and reevaluated information about an additional incident when Doe behaved inappropriately toward his older daughter. The remaining errors Doe raises would not affect his classification. Doe claims that the hearing examiner erred in finding that "there was no information about [Doe's] substance abuse treatment history" because Doe submitted an affidavit and a letter from a sheriff stating that Doe completed a substance abuse program. Neither of those documents, however, provides any detailed information about the treatment program. Doe also contests the hearing examiner's erroneous finding that Doe's older daughter was eight years old when he assaulted her. In fact, there was no error, as the time period in the indictment began when the daughter was eight years old. In any event, high risk factor 3 (adult offender with child victim) would apply, because the daughter was under thirteen years old at the time of the assault. See 803 Code Mass. Regs. § 1.33(3)(a) (2016). Similarly, the hearing examiner applied risk elevating factor 18 (extravulnerable victim) only regarding Doe's younger daughter, who was three years old at the time of her assault. Consequently, any error related to the older daughter's age would be irrelevant. See 803 Code Mass. Regs. § 1.33(18)(a) (2016).
The hearing examiner ultimately concluded that because there was insufficient information about this additional incident, he would not consider it as part of Doe's classification.
Conclusion. Because we conclude that the hearing examiner appropriately applied the relevant statutory factors, we affirm the judgment affirming SORB's decision and denying Doe's motion for judgment on the pleadings.
We see no need to remand for explicit findings on whether a public safety interest is served by active dissemination of Doe's registry information. See Doe No. 496501, 482 Mass. at 657 & n.4. As Doe molested both of his young daughters, this is a case where "the underlying facts of the case ... so clearly dictate the appropriate classification level that a reviewing court may determine that a remand for explicit findings is not necessary." Id. at 657 n.4.
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So ordered.
Affirmed