Opinion
20-P-335
06-18-2021
John DOE, Sex Offender Registry Board No. 525918 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level one sex offender and its denial of Doe's motion for relief from registration. See G. L. c. 6, § 178K (2) (a ). We discern no error in the SORB hearing examiner's findings that Doe posed a "low" risk of sexual reoffense and dangerousness for the purpose of Doe's level one sex offender classification, or in the hearing examiner's denial of Doe's motion for relief from registration. Accordingly, we affirm the judgment of the Superior Court.
Background. In 2017, after a jury trial in the District Court, Doe was convicted of one count of indecent assault and battery on a person fourteen or older. G. L. c. 265, § 13H. SORB originally classified Doe as a level one sex offender; Doe appealed, and a SORB hearing examiner denied Doe's motion for relief from registration, and affirmed the level one classification, concluding that Doe had failed to prove that he did not pose a risk of reoffense and did not present a danger to the community. Doe sought judicial review in the Superior Court, pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14.
On review, the judge determined that the hearing examiner had improperly placed the burden of proof on Doe when denying his motion for relief from registration and on that basis, remanded the case to SORB for reconsideration of the evidence under the correct standard. See Doe, Sex Offender Registry Bd. No. 76819 v. Sex Offender Registry Bd., 480 Mass. 212, 215 (2018) (Doe No. 76819 ), citing Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 311 (2015) (SORB constitutionally required to prove appropriateness of offender's initial classification "by clear and convincing evidence"). In an amended decision, correctly placing the burden of proof on SORB, and not Doe, the hearing examiner again denied Doe's motion for relief from registration and ordered him to register as a level one sex offender. The judge then denied Doe's motion for judgment on the pleadings, and allowed SORB's cross motion; in doing so, she affirmed SORB's classification decision. This appeal followed.
The judge did not order any rehearing on Doe's appeal to SORB nor, on this record, did Doe seek to reopen the evidence before the hearing examiner.
Discussion. Doe challenges, on several grounds, the hearing examiner's conclusion that he presented even a "low" risk of reoffense and dangerousness to the public. See G. L. c. 6, § 178K (2) (a ). See Doe No. 76819 , 480 Mass. at 214, quoting G. L. c. 6, § 178K (2) (a ) ("A sex offender is classified as level one where ‘the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability’ of registration information"). We are not persuaded that any of his arguments requires reversal of the hearing examiner's determination.
1. Standard of review. "To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011 ). "Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Boston Gas Co. v. Assessors of Boston, 458 Mass. 715, 721 (2011), quoting Tennessee Gas Pipeline Co. v. Assessors of Agawam, 428 Mass. 261, 262 (1998). "An agency decision should be set aside only if a 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 No. 523391 , supra, quoting Doe No. 356011 , supra. Our review is de novo, see Doe No. 523391 , supra at 89, although in reviewing SORB's decisions, "we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ " Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013).
2. Examiner's allocation of burden of proof. We pass quickly over Doe's suggestion that, after remand, although the hearing examiner reworded her decision "to show a superficial conformity to the correct burden of proof," she failed to apply the burden correctly. This challenge is unsupported by legal authority or record citation. As it does not rise to the level of appellate argument, the argument is waived. See Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1628 (2019); K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014).
Were we to consider the argument on its merits, the hearing examiner's final findings of fact and rulings of law, which included the hearing examiner's acknowledgment that the judge remanded the case to allow her to apply the correct burden of proof, would lead us to conclude that she did so properly.
3. Doe's duty to victim. Next, Doe argues that the hearing examiner erred in considering Doe's failure to intervene in his codefendant's indecent assault and battery on the victim in her determination of the classification appropriate for Doe. To put this challenge into context, we briefly summarize the facts of the index offense of indecent assault and battery as the hearing examiner found them, supplemented by uncontested evidence from the record.
On April 20, 2017, during the daytime hours, passersby called the police after observing Doe and another man "fondling" the victim as she sat between them on a bench near Harvard Square. "[T]he [v]ictim was not conscious while [Doe] was feeling the [v]ictim's breast and kissing her and the other man was groping her hip, chest, and neck." The victim "reeked of alcoholic beverages," was so intoxicated that she could not stand without falling forward, and repeatedly lost consciousness before being transported to a hospital by ambulance. The hearing examiner found that Doe was "kissing and groping" the victim who was then too intoxicated to consent to either touching. Doe was charged with indecent assault and battery on the victim and, as we have noted, he was convicted of that offense by a jury.
Doe testified that he did not know the other man involved in the incident; the hearing examiner appears to have credited this testimony.
We reject Doe's suggestion that the lack of an explicit finding that Doe "groped" the victim's breast somehow undermined the hearing examiner's classification determination. In any event, as Doe concedes, there are circumstances in which kissing someone without consent constitutes an indecent act, see Commonwealth v. Benedito, 95 Mass. App. Ct. 548, 550 (2019), although given the hearing examiner's finding that Doe both kissed and "grop[ed]" the incapacitated victim, we need not decide whether this case presents such a circumstance.
We discern no error or abuse of discretion in the hearing examiner's use of these facts in her determination of Doe's classification. Contrary to Doe's argument, the hearing examiner's "not[ing] [Doe's] lack of concern regarding the actions of his co-defendant," and that "[Doe] did not care to protect the [v]ictim from this other man's indecent assault," neither improperly attributed to Doe responsibility for the second abuser's independent indecent assault and battery on the victim nor imposed on Doe a duty to come to the victim's aid against that other abuser. Indeed, as she explained in her findings, the hearing examiner considered this evidence through the lens of the statutory and regulatory factors on which she was required to rely in determining if and how Doe should be classified as a sex offender. See G. L. c. 6, § 178K (1) (a )-(l ) ; 803 Code Mass. Regs. § 1.33 (2016) ; Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019), citing 803 Code Mass. Regs. § 1.33 (discussion of "thirty-eight relevant aggravating and mitigating considerations" promulgated by SORB). Specifically, she treated them -- properly, in our view -- as evidence going to the applicability of risk-elevating factors to Doe's case: the victim's "extravulnerable" status, based on her intoxication (factor 18), and Doe's willingness to take advantage of the victim in a very "public place," on a public street in the middle of the day (factor 16). See 803 Code Mass. Regs. §§ 1.33(16)(a), (18)(a).
Additionally, we note that the hearing examiner could have considered Doe's willingness to countenance his codefendant's behavior as some indication of his own intent toward the victim.
4. Doe's completion of probation "without incident." Doe's next argument -- that the hearing examiner erred in failing to consider Doe's successful completion of probation during the interval between the date of the hearing examiner's original decision and the issuance of her amended decision -- is unavailing.
For purposes of appeal, we take at face value the hearing examiner's assumption that Doe completed his probationary period without incident. Doe has not cited to any precedent requiring the hearing examiner to consider successful completion of probation as a mitigating factor in determining a sex offender's original classification, and we are aware of none. Cf. 803 Code Mass. Regs. § 1.33(28)(a) ("An offender's risk of reoffense and degree of dangerousness are reduced while he is serving a term of community supervision" [emphasis added]).
While Doe argues that his success on probation "should have been recognized under the catch-all factor, [803 Code Mass. Regs. § 1.33(37)(a) ]," he neither cites to any precedent supporting that position, nor explains how completion of probation would be "useful in determining risk of reoffense and degree of dangerousness" for an individual no longer under supervision. 803 Code Mass. Regs. § 1.33(37)(a).
Doe relies on Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 488-489 (2015), a reclassification request and thus distinguishable on that basis, and Doe, Sex Offender Registry Bd. No. 197406 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 1115 (2012), an unpublished decision pursuant to former rule 1:28, in which we considered, inter alia, that the juvenile defendant both completed probation and attended therapy, and had not then reoffended. In any event, neither case suggests that the consideration of probation is mandatory.
5. Sufficiency of evidence. Doe's remaining arguments on appeal, although framed as challenges to the sufficiency of the evidence supporting his level one classification, amount to little more than disagreements with the hearing examiner's assessment of the weight and credibility of the evidence. "It is the province of the board, not this court, to weight the credibility of the witnesses and to resolve any factual disputes." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). Based on her assessments of the credibility and weight of the evidence presented at the hearing, the hearing examiner made specific factual findings, supported by a preponderance of the evidence, which together provided clear and convincing evidence for her conclusions that Doe presented a low risk of reoffense and dangerousness, respectively, and no need for active dissemination of registration information. See Doe No. 496501 , 482 Mass. at 646, 656-657. We are satisfied that the record shows that this decision was supported by substantial evidence.
Based on the hearing examiner's detailed findings, we are confident that she considered all the evidence presented to her fairly and evenhandedly, and we discern no error in the hearing examiner's weighing of the risk elevating factors of Doe's extrafamilial relationship with the victim (factor 7), past contact with the criminal justice system (factor 10), willingness to assault the victim in a public place (factor 16), and abuse of an extravulnerable victim (factor 18) against Doe's "advanced age" of forty-eight (factor 30), familial and other supports (factor 33), and his stability at the time of the hearing (factor 34). See G. L. c. 6, § 178K (1) (b ) (i), (1) (b ) (iii), (1) (d ), & (1) (l ) ; 803 Code Mass. Regs. §§ 1.33 7(a), 10(a), 16(a), 18(a), 30(a), 33(a), 34(a). Cf. Adoption of Jacques, 82 Mass. App. Ct. 601, 608 (2012) ("Weighing strengths against weaknesses is within the core competency of the trial judge, who has the benefit not only of the evidence, but of seeing and assessing the [party] themselves"). In short, we conclude that the hearing examiner's amended decision was supported by substantial evidence, and was not arbitrary or capricious, an abuse of discretion, or legally erroneous. See Doe No. 523391 , 95 Mass. App. Ct. at 88.
Judgment affirmed.