Opinion
18-P-1243
11-22-2019
John DOE, Sex Offender Registry Board No. 23637 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, was given a preliminary classification as a level 3 sex offender by the Sex Offender Registry Board (SORB). He filed a request for an administrative hearing to challenge the preliminary classification. See G. L. c. 6, § 178 L. After a de novo hearing, he was finally classified as a level 2 sex offender. Doe sought judicial review and a judge of the Superior Court affirmed the hearing examiner's decision; he now appeals.
According to police reports, on diverse dates between September 1, 1988, and February 14, 1989, Doe indecently assaulted his ten to eleven year old stepdaughter. She reported that on three occasions he touched her vagina while her mother was at work or sleeping. The first incident occurred when the child was playing on the couch with her eight and nine year old sisters, Doe's biological children. Doe touched the child's vagina over her shorts. On another occasion, she visited Doe at his home in South Dennis and he again touched her vagina over her clothing. He also struck her causing her nose to bleed. Finally, on another occasion in South Dennis, Doe entered the bathroom while the child bathed. Doe touched her entire body and attempted to put his finger in her vagina, causing her to cry. The child also told police that Doe kept drugs in the house including cocaine and marijuana, and one of the child's sisters described him snorting cocaine in the house.
Doe has a long criminal history including over thirty convictions and ten incarcerations. His most serious convictions have included: larceny in 1976; assault and battery by means of a dangerous weapon in 1978; breaking and entering and larceny of a dwelling in 1980; assault and battery in 1986; assault on a police officer in 1986; assault and battery to rob in 1987; armed robbery with a knife in 1992; robbery and assault to rob in 1994; assault and battery by means of a dangerous weapon in 1998; and armed assault with intent to murder in 1999.
Doe complains first that the hearing examiner should have excluded entries from his criminal record for which there was no probable cause found, which were filed, or which were dismissed. An examination of the hearing examiner's report however indicates that any such cases played no substantial role in her analysis. Her discussion of risk elevating factor 10, contact with the criminal justice system, referred only to convictions and incarcerations. In addition, although she mentioned filed cases in her discussion of risk elevating factor 11, violence aside from sexual assault, her conclusion that "[p]etitioner's lengthy history of extreme violence toward others is very aggravating," is undeniable in light of the violent acts among Doe's multitude of convictions for nonsexual offenses.
Doe argues next that the SORB decision was arbitrary and capricious or otherwise not in accordance with law. He argues first that the hearing examiner erred in giving "some weight" to risk elevating factor 16, public place. The regulation states, "[t]he commission of a sex offense or engaging in sexual misconduct in a place where detection is likely reflects the offender's lack of impulse control." 803 Code Mass. Regs. § 1.33(16)(a) (2016). For purposes of factor 16, a " ‘public place’ includes any area maintained for or used by the public and any place that is open to the scrutiny of others or where there is no expectation of privacy." 803 Code Mass. Regs. § 1.33(16)(a). Doe cites the Minnesota Sex Offender Screening Tool -- Revised (Tool), devised by Douglas L. Epsen, Ph.d. -- on which § 1.33 relies in including the public place factor among the risk elevating factors. He notes that the definition of public place in the regulation is taken verbatim from the Tool. He then quotes the sentence from the Tool that follows that definition, a sentence that is not quoted in the regulation: "Examples include parks, parking lots, and alleys; bars and restaurants; common areas in public or apartment buildings (laundry rooms, hallways, corridors)."
To be sure, the couch in one's own apartment is not listed among those examples, but they are only examples. There is no indication that they are intended to serve as an exhaustive list. And since the hearing examiner could have found that at least one of the incidents comprising the index offense was undertaken in a "place that is open to the scrutiny of others or where there is no expectation of privacy," we see no error in the application of this factor to Doe's case.
Doe next argues that it was arbitrary and capricious for the hearing examiner to conclude that Doe's offending was "repetitive and compulsive." The hearing examiner found that this high risk factor 2, repetitive and compulsive behavior, applies to Doe's case because he had indecently assaulted the child on at least three separate occasions.
Doe argues that his conduct could not be found repetitive, because the only evidence that there was more than one incident was contained in unreliable "totem pole hearsay" in the police report. Of course, hearsay bearing indicia of reliability is admissible before the hearing examiner, see Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011) ; Covell v. Department of Soc. Servs., 439 Mass. 766, 786 (2003), and we see no abuse of discretion in the hearing examiner's admission of the police report.
Doe argues that even if the behavior could be categorized as repetitive, SORB cannot sustain its burden of showing that it was compulsive. The regulation, however, states that factor 2 is applicable when there are separate episodes, and separate episodes are those in which there is time and opportunity to reflect between episodes. See 803 Code Mass. Reg. § 1.33(2)(a). Although that might not amount to "compulsive" behavior in some clinical sense -- Doe suggests that behavior cannot be found compulsive unless it is the product of "an irresistible urge" -- the behavior could properly have been found by the hearing examiner to meet the regulatory definition.
Finally, Doe argues that his risk of sexually reoffending and degree of dangerousness were not proven by clear and convincing evidence because a limited number of high risk factors applied to his case and because other factors demonstrated his decreased risk of reoffense and decreased degree of dangerousness. "[P]erhaps [the] most significant[ ]" of these is "the fact Doe committed his one and only sex offense nearly thirty years ago." Doe argues that the hearing examiner abused her discretion in ignoring this and in ignoring other factors weighing against his risk of reoffense and dangerousness, and that, consequently, the decision is not supported by substantial evidence.
The hearing examiner, however, carefully examined the risk elevating factors that were applicable and reasonably decided what weight to give them. She found two mitigating factors in Doe's case, his advanced age and his home situation and support system, and she weighed them accordingly. There is therefore substantial evidence in the record supporting the finding by clear and convincing evidence that Doe presented a moderate risk to reoffend and a moderate degree of dangerousness.
Judgment affirmed.