Opinion
18-P-1602
02-27-2020
John DOE, Sex Offender Registry Board No. 3455 V. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming Doe's classification as a level three sex offender by the Sex Offender Registry Board (board). In seeking a level one classification and remand on the issue of public dissemination he argues (1) that the decision of the hearing examiner (examiner) was not based on Doe's current risk of reoffense, (2) that the examiner misapplied three statutory risk-mitigating factors, and (3) that the examiner failed to substantiate the need to release Doe's sex offender information to the public. We conclude that the examiner's determination that Doe posed a high risk of reoffense and a high level of dangerousness, and that public safety would be served by the release of Doe's information, was supported by sufficient factors, and that remand under Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 657 (2019) (Doe No. 496501 ), is unnecessary. As such, we affirm.
Background. Doe has a history of publicly assaulting women unknown to him; we summarize Doe's index offenses chronologically. In 1981, Doe touched a woman unknown to him on the buttocks after a casual conversation at a Massachusetts Bay Transportation Authority station. In 1986, while in a parking lot, he boxed in a woman in her car, and when she approached to ask him to move his car, she saw that his penis was exposed and he was fondling himself. In 1994, he knocked unconscious a woman walking her dog and dragged her down an alleyway. Responding to her cries for help, a man found Doe punching the woman in the face while on top of her with her pants and underwear pulled down. Additionally, on the same day as that attack, thirteen different women reported that Doe sexually assaulted them on the street in Boston. In the end, ten women positively identified Doe as their assailant.
Doe does not contend that any of these incidents were improperly considered by the board. Notably, Doe's record included many incidents the board declined to consider: an appealed conviction in 1986 of indecent exposure; a 1991 charge for indecent assault and battery on a person age fourteen or over; dismissed charges from 1991 of attempting to commit a crime, open and gross lewdness, and lascivious behavior; a dismissed charge for lewd and lascivious behavior from 1993; a dismissed rape charge from 1994; and a dismissed charge for indecent assault and battery on a person age fourteen or over from 1995.
He later testified that he had been drinking that day and could see through the woman's skirt, so he "pleasured [him]self" as she walked by.
Doe would state that he attacked the woman because she was "vulnerable."
In 1997, while driving, Doe pulled to the side of the road and asked a woman if she wanted to do drugs. Though she declined and kept walking, Doe followed her in his car nonetheless. When she ran for help, Doe reappeared on foot, ducking in and out of doorways as he continued to follow her. Eventually, Doe chased her into a corner, grabbed her breast and vagina over her clothing, and told her that all he wanted was a "good feel." For that act, Doe was found guilty of two counts of indecent assault and battery on a person age fourteen or over and one count of assault and battery. He was sentenced to four to five years of incarceration and concurrent three-year probation terms from and after his release. In 1998, while incarcerated, Doe masturbated in the prison chapel in front of a nun while she was interviewing him for program placement. In 2014, a few months after his release and while on probation, he masturbated outside of a grocery store in the view of at least three women.
Doe's classification process began in 2009, when the board notified him that it would recommend that he register as a level three sex offender. After a de novo hearing, the examiner classified him as a level three sex offender in 2011. Doe appealed, and while that appeal was pending, the Supreme Judicial Court revised the standard of proof necessary for sex offender classifications. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015). This entitled Doe to a new classification hearing under the new standard. In 2017, after his new hearing, the examiner filed the underlying classification report, again classifying Doe as a level three sex offender.
In determining Doe's classification the examiner applied twelve risk-elevating factors from 803 Code Mass. Regs. § 1.33 (2016), which Doe does not contest. The examiner also considered a number of risk-mitigating factors, three of which Doe takes issue with. We focus our review on the challenged mitigating factors. The examiner assigned minimal weight to factor twenty-eight (supervision by probation or parole) because although Doe was set to begin a probationary term with stringent restrictions, the record reflects that he had also been on probation previously and still offended. Because Doe was fifty-seven years old at the time of the hearing, the examiner gave moderate weight to factor thirty (advanced age), noting that Doe had violated his probation at age fifty-four. Factor thirty-two (sex offender treatment) was given limited weight because Doe had been terminated from sex offender treatment multiple times. In the end, the examiner, after weighing all applicable factors, concluded that Doe presented a high risk of reoffense and a high degree of dangerousness. He also found that "[Doe's] record amply supports [that] his risk of re-offense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination of sex offender registry information."
Discussion. A level three classification must be based on clear and convincing evidence (1) that Doe has a high risk of reoffending, (2) that Doe has a high level of dangerousness, and (3) that active dissemination of Doe's personal and sex offender information serves a substantial public safety interest. See 803 Code Mass. Regs. § 1.20(2) (2016). We "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L. c. 30A, § 14 (7). Additionally, after Doe No. 496501, an appellate court has the discretion to remand a classification to the examiner if each of the three elements are not supported explicitly. Doe No. 496501, 482 Mass. at 657. Nonetheless, remand is unnecessary if "[the board's] existing findings are sufficiently explicit to enable proper review," or when "the underlying facts of the case may so clearly dictate the appropriate classification level." Id. at 657 n.4.
Discretion is limited to cases, like this one, where the appeal of a classification report was pending at the time Doe No. 496501 was released. Doe No. 496501, 482 Mass. at 657-658.
1. Substantial evidence. Doe asserts that the examiner lacked substantial evidence to conclude that Doe's level three classification was based on his current circumstances. As an initial matter, he argues that his "only" recent sexual misconduct was the 2014 probation violation for masturbating outside of a grocery store. He also claims that the circumstances surrounding the 1994 attack, where thirteen women came forward with claims against Doe, were based on hearsay. We disagree.
To begin, the examiner's consideration of the 2014 masturbation incident was based on substantially reliable hearsay and was otherwise sound. Two witnesses testified at the probation revocation hearing (under oath and subject to cross-examination by Doe's counsel) that they observed Doe "clearly masturbating" at the grocery store, and while one witness went to call the police, the other observed him masturbating for five to ten minutes. Doe admits that he was at the grocery store, and police found him seemingly hiding behind a support column. The examiner's inclusion of the 2014 probation violation indeed was properly considered and supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011).
Additionally, and important to note here, an examiner may consider that "the offender has not had the recent opportunity to commit sexual offenses because he or she has been in custody." Doe No. 496501, 482 Mass. at 651. Regarding Doe's assault on thirteen women in 1994, an examiner "need not observe the rules of evidence observed by courts." G. L. c. 30A, § 11 (2). "Hearsay, even multilevel hearsay, may be admissible at classification hearings." Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 77 (2015). From police reports, we discern that six of the 1994 female victims reported being attacked in a similar manner, in the same area of Boston, in the same window of time, by a man identified as Doe. The defendant's argument has no merit.
2. Risk-mitigating factors. Doe next challenges the examiner's application of three of the risk-mitigating factors. First, Doe argues that the examiner's consideration of factor twenty-eight (supervision by probation or parole) failed to include the stringency of Doe's probation restrictions, which included random drug and alcohol testing and a requirement to obtain sex offender and substance abuse treatment if Doe's probation supervisor deemed it appropriate. We disagree. Indeed, this position is belied by the fact that the examiner listed Doe's conditions of probation within his analysis of that factor. He reasonably gave factor twenty-eight less than full weight as Doe had twice previously committed offenses while on probation. The argument is meritless.
Second, echoing his attack on the examiner's consideration of his 2014 probation violation, Doe claims that he should have received full mitigating weight, rather than moderate weight, for factor thirty (advanced age). He asserts that the evidence of the 2014 probation violation "lacks the requisite indicia of reliability," such that his advanced age should receive full mitigating weight. We similarly disagree on this point for the reasons articulated supra. Suffice it to say, the examiner's consideration of the 2014 probation violation was reasonable and grounded in the evidence. As a result, the examiner was well within the bounds of his discretion to moderate the influence of factor thirty based on Doe's most recent probation violation.
If the 2014 probation violation was removed from Doe's list of sexual offenses, his most recent offense would have been a 1998 offense.
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Third, Doe argues that factor thirty-two (sex offender treatment) was erroneously given "limited" mitigating weight. He claims that the examiner overlooked that Doe was removed from treatment because he defended himself from a physical attack. Doe also testified in 2017 that he had actively participated in treatment and stated it had a "profound" impact on him. We see no error in the examiner's analysis. Beyond Doe's own testimony, Doe presented no documentary evidence that he had completed sex offender treatment during his most recent incarcerated spell from 2014 to 2017. In fact, his record revealed that Doe had been terminated from sex offender treatment multiple times. During some of Doe's completed sessions, clinicians documented that Doe's participation in treatment was "minimal." The examiner's decision to give less weight to that factor was reasonable.
3. Release of public information. Last, Doe claims that the examiner failed to consider whether a public safety interest warrants the dissemination of his registry information, and that the active dissemination of Doe's personal information is not in the public interest.
Here the examiner's findings were not separate and explicit for each of the three elements, as now required pursuant to Doe No. 496501. Nonetheless, it is clear that the examiner considered all three elements and that the factors present were sufficient to support his determination on each. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 144 (2019) ("The hearing examiner's analysis of each factor was meticulous, and indicates the presence of sufficient factors to merit [the examiner's] determination"). Based on Doe's longstanding pattern of abusing, harassing, and inflicting violence in public on women he did not know, we conclude that "the underlying facts of the case ... so clearly dictate the appropriate classification level" that remand is unnecessary. Doe No. 496501, 482 Mass. at 657 n.4.
Judgment affirmed.