Opinion
No. 11–P–1081.
2012-06-27
John DOE, Sex Offender Registry Board No. 4361 v. SEX OFFENDER REGISTRY BOARD.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, Sex Offender Registry Board (board) No. 4361(Doe), appeals from a judgment of the Superior Court affirming the board's final classification of Doe as a level three (high risk) sex offender.
The evidence before the hearing examiner showed the following. In 1996, Doe met his first victim, a fifteen year old boy, at Doe's fiancée's home. Doe gave the victim alcohol, showed him a pornographic movie, touched his buttocks, and masturbated in front of him. Doe pleaded guilty to, inter alia, indecent assault and battery on a person age fourteen or over in violation of G.L. c. 265, § 13H, and open and gross lewdness and lascivious behavior in violation of G.L. c. 272, § 16. In 2008, Doe met his second victim, a fifteen year old boy, when the victim was spending the night at Doe's house with Doe's son and the victim's cousin. Doe gave the victim alcohol while Doe watched a movie in the living room with the three boys. When the other two boys left the room, Doe rubbed his hand on the victim's body, kissed him on the mouth, inserted his finger in the victim's anus, performed oral sex on the victim, and forced the victim to perform oral sex on him. Doe pleaded guilty to, inter alia, three counts of indecent assault and battery on a person age fourteen or over in violation of G.L. c. 265, § 13H.
Discussion. The plaintiff claims that the hearing examiner erred in two ways that cumulatively resulted in an arbitrary and capricious decision not supported by substantial evidence. First, arguing that he should have been classified at a lower level than three, Doe points to numerous “positive aspects” that the examiner failed to apply. He objects to the fact that the examiner did not consider the inapplicability of several factors in his risk assessment. This contention is unpersuasive given that “inapplicable factors do not count against an offender's risk level as they are not considered or weighed in the classification process.” Doe, Sex Offender Registry Board No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 788 (2006) ( Doe 10216 ).
Second, the plaintiff argues that the examiner's decision contained multiple factual errors. We consider each of the alleged errors in turn.
The examiner did appropriately consider the fact that Doe will be on parole for five years after release as an applicable mitigating factor.
1. Doe claims the examiner erred by finding that he used “force” to make the second victim perform oral sex despite the fact that the victim said Doe did not use force. However, the victim also told the police officer that “he felt that he had to [perform oral sex on Doe] because of [Doe's] being older and bigger than him” and that he was “scared not to because he didn't know what [Doe] would do if [the victim] did something to [Doe].” In addition, the victim reported that Doe brought the victim's head closer to his penis. A finding of force was justified. Moreover, the examiner did not apply 803 Code Mass. Regs. § 1.40(8) (2002)
; thus any error in finding that force was applied would be harmless.
.Section 1.40(8) provides, “The use of ... violence ... is strongly associated with the degree of dangerousness.... Any force or threat of force beyond that necessary for the offender to commit the sexual offense shall constitute violence....”
2. Doe argues that the examiner erred by finding that his 2008 offenses occurred in a “public place.”
We disagree. Doe committed the assault in the living room of his home while his wife and the two other boys were also in his house and able to enter the living room at any point. See Doe 10216, 447 Mass. at 789. Moreover, Doe's son did report witnessing some of what occurred.
Under 803 Code Mass. Regs. § 1.40(9)(c)(1) (2002), a “public place” is “an area maintained for or used by the people or community, or an area that is open to the scrutiny of others ” (emphasis supplied).
3. Doe objects to the examiner's finding that both victims were “extra-vulnerable” under 803 Code Mass. Regs. § 1.40(9)(c)(4) (2002) because they consumed alcohol.
The examiner did not err by concluding that “[t]he effects of the alcohol provided by [Doe] rendered the victims more susceptible to sexual assault” and thus extra-vulnerable.
Under § 1.40(9)(c)(4), “ ‘extra-vulnerable’ means any condition or circumstance, including, but not limited to a physical or mental condition that tends to render a victim more susceptible to sexual assault....”
4. Doe correctly argues and the board concedes that the examiner erroneously stated that Doe was convicted of four, instead of three, counts of indecent assault and battery in 2008. This error was harmless as it did not change any of the factors that the examiner appropriately applied to determine classification.
5. Doe also contends that the examiner erroneously failed to credit him, pursuant to 803 Code Mass. Regs. §§ 1.40(12) and (22) (2002), for “having a positive home environment, stable employment, and furthering his education.” The examiner considered information about Doe's personal circumstances in his decision but ultimately concluded that “[Doe] previously had an opportunity to achieve these goals when he was released from incarceration following his first sex offense, but did not do so.” The examiner's conclusion that Doe's plans are too speculative to credit was not an abuse of discretion.
There was no error in failing to “credit ... Doe for positive adjustment to incarceration.” Title 803 Code Mass. Regs. § 1.40(19) (2002) looks at the inability to adapt to incarceration as evidence of “an increased level of dangerousness.” As such, this is a risk-aggravating, not a mitigating, factor.
In sum, the examiner carefully considered and weighed all of the evidence presented. The examiner found that the single applicable mitigating factor was insufficient to lower Doe's high risk of reoffense and high degree of dangerousness after weighing the applicable statutory and regulatory factors supporting a level three classification. Thus, Doe's classification was based on substantial evidence.
“Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. In reviewing the agency's decision, the 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. The decision may only be set aside if the 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.” Doe 10216, 447 Mass. at 787 (internal quotation marks and citations omitted).
Finally, Doe claims that the examiner erred by denying Doe funds to hire an expert witness. We disagree. The board has discretion to grant expert witness fees. Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770 (2008) ( Doe 89230 ). Here, Doe failed to present an affidavit from a medical professional or any other documentation to support the existence of his mental illness and the necessity of an expert witness. Thus, the examiner did not abuse his discretion by denying funds where the request was a “general motion for funds” and Doe did not meet his burden by “articulat [ing] the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.” Doe 89230, 452 Mass. at 775.
Judgment affirmed.