Opinion
18-P-1444
12-30-2019
John DOE, Sex Offender Registry Board No. 360651 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Doe, challenges his classification as a level three sex offender by the Sex Offender Registry Board (SORB). Doe argues that the hearing examiner (examiner) (1) erred by considering hearsay evidence that lacked indicia of reliability; (2) misapplied the relevant risk-mitigating factors rendering the decision arbitrary and capricious; and (3) failed to explain how public dissemination of his registration information served a substantial public safety interest. We affirm.
Background. In 2012, SORB notified Doe of his obligation to register as a level three sex offender. Doe challenged the recommended classification. Following a de novo hearing, the examiner classified Doe as a level three sex offender. Doe sought judicial review of that decision in the Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. During the pendency of Doe's appeal, the Supreme Judicial Court (SJC) revised the standard of proof for an offender's risk classification from a preponderance of the evidence to clear and convincing evidence. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 311-314 (2015). Accordingly, in 2016, the examiner conducted a de novo hearing pursuant to G. L. c. 6, § 178L. In a comprehensive decision, the examiner found that Doe poses a high risk for sexual reoffense and a high degree of dangerousness, and ordered him to register as a level three sex offender.
Doe's classification as a level three sex offender stems from two governing offenses. First, between 1987 and 1991, Doe repeatedly raped and sexually assaulted his five year old stepdaughter. During some of the assaults, Doe was intoxicated, used force, and made threats. As a result of his actions, Doe was convicted in the Connecticut Superior Court of sexual assault in the second degree and risk of injury to a minor child.
The examiner found that the Connecticut crime of sexual assault in the second degree most closely matches the Massachusetts offense of rape and abuse of a child, G. L. c. 265, § 23. Doe does not challenge this finding on appeal.
Second, in 1991, Doe sexually assaulted his former girlfriend's five year old son by "flicking" the boy's penis through his pants several times. Doe was again convicted in Connecticut Superior Court of sexual assault in the fourth degree.
The examiner found that the Connecticut crime of sexual assault in the fourth degree most closely matches the Massachusetts offense of indecent assault and battery of a child under the age of fourteen, G. L. c. 265, § 13B. Doe does not challenge this finding on appeal.
The examiner also considered Doe's uncharged conduct in her analysis. In 1991, Doe spied on his former girlfriend's twelve year old daughter while she showered. On one occasion, he barged into the bathroom and pulled back the shower curtain while she showered. As Doe would not stop entering the bathroom while she bathed, the daughter began to wear a bathing suit while showering.
The examiner declined to consider several other allegations of Doe's sexual misconduct and abuse from 1986, 1991, and 2016.
In 2013, according to a sworn affidavit submitted in support of an application for an abuse prevention order, Doe grabbed a woman's hair, forced her mouth onto his penis, and slammed her head on a table, floor, and stove because she refused to perform oral sex. In 2016, according to another sworn affidavit from another woman submitted in support of another application for an abuse prevention order, Doe "pulled his pants down and without permission put his penis all the way down her throat." On this occasion, the woman fought with him, and Doe subsequently "put her in a body hold and told her, ‘This is what happens when you piss me off.’ " In both instances, a judge issued the requested abuse prevention order.
Discussion. There is no merit to Doe's contention that the examiner erred in considering hearsay contained in police reports and affidavits. "A hearing examiner is not bound by the rules of evidence applicable to court proceedings." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011). "Instead, an examiner 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 citation omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). "In the context of a sex offender classification hearing, hearsay evidence may be admissible if it bears sufficient indicia of reliability." Id. In evaluating whether hearsay evidence is substantially reliable, "[f]actors that the examiner should consider include ‘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 and the like.’ " Id., quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 78 (2015).
Here, the examiner found that the information in the affidavits in support of abuse prevention orders contained indicia of reliability because the allegations were "quite similar," both offenses occurred with a girlfriend, each time Doe "pulled his pants down and forcefully inserted his penis into their mouths while they tried to resist," and "the abuse prevention orders based on the affidavits were granted." These findings are not erroneous. The affidavits contained sufficient detail, elements of corroboration, and consistency with Doe's known behavior.
There is likewise no merit to Doe's claim that the examiner's decision was arbitrary and capricious due to misapplication of several risk-mitigating factors. Here, the examiner properly addressed the risk-elevating and risk-mitigating factors. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014) ("SORB is required to consider a list of statutory factors in making its classification determinations"). The examiner's decision reflects a thoughtful and careful balancing of the relevant statutory and regulatory considerations. We need not engage in a lengthy recapitulation of the examiner's findings in this regard. For the reasons detailed by the examiner and by the judge in his decision and order denying Doe's motion for judgment on the pleadings, we hold that the examiner's decision was supported by substantial evidence, and was neither arbitrary nor capricious.
Substantial evidence supports the examiner's classification of Doe as a level three sex offender under the clear and convincing evidence standard. See Doe, Sex Offender Registry Bd. No. 380316, 473 Mass. at 314 ; Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).
Finally, we disagree with Doe's argument that the examiner's failure to explain how public dissemination of his registration information served a substantial public safety interest constituted a due process violation. In Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501 ), the SJC held that with respect to level two and three classifications in SORB cases, hearing examiners must make explicit findings as to all three elements, including a finding that "a public safety interest is served by Internet publication of the offender's registry information." Id. at 656. However, the SJC further held that the requirement is to be applied "prospectively only," and that "where an appeal is pending before the Superior Court or an appellate court, the court, in its discretion, may order that the classification decision be remanded to the hearing examiner." Id. at 657. This case does not merit the exercise of our discretion to order a remand. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145 (2019), quoting Doe No. 496501, 482 Mass. at 657 n.4 ("because ‘the underlying facts of the case ... so clearly dictate the appropriate classification level,’ we do not exercise our discretion to remand for further findings on this element").
To the extent we do not discuss other arguments made by Doe, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.