Opinion
20-P-783
01-03-2022
John DOE, Sex Offender Registry Board No. 526098 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB or board) as a level three sex offender. He contends that the board's classification decision is not supported by substantial evidence because the hearing examiner improperly relied on hearsay evidence and erred in weighing aggravating and mitigating factors. He further contends that the examiner failed to make explicit findings that Internet dissemination of his registry information serves a public safety interest. We affirm.
Discussion. 1. Standard of review. "A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019), citing G. L. c. 30A, § 14 (7). "Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting G. L. c. 30A, § 1 (6). "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" (quotation and citations omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019).
2. Hearsay evidence. The plaintiff argues that the hearing examiner improperly relied on third-level hearsay to find that he attempted to rape his girlfriend (Victim 2), notwithstanding the fact that a court martial found him guilty of only the lesser included offense of assault consummated by battery. Specifically, the examiner based her findings on a Preliminary Intake Risk Assessment by John T. Lesniak, Assessment Division Chief at the U.S. Disciplinary Barracks at Fort Leavenworth, where the plaintiff was incarcerated for the governing sex offense and other offenses. Lesniak in turn relied on an unattributed "Report of Investigation" that was not included in the administrative record. According to the report, Victim 2 stated that the plaintiff "walked up behind her, bent her over the counter, and proceeded to pull his and her pants down," and that she said, "No. Stop," and "Are you going to rape me?"
"[H]earsay evidence bearing indicia of reliability constitutes admissible and substantial evidence" in the board's classification decisions. Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 26 (2021), quoting Doe No. 10800 , 459 Mass. at 638. "Common indicia of reliability include a detailed account[,] the consistency of the hearsay incident with other, known behavior[,] admissions by the offender[,] and independent corroboration" (citations omitted). Doe No. 523391 , 95 Mass. App. Ct. at 89. "Indicia of unreliability include failure to identify the source of information, a lack of detail, and a lack of information about the circumstances in which the statements were made." Id. at 89-90. We review a hearing examiner's decision to admit and rely on hearsay evidence for abuse of discretion. See Doe No. 339940 , supra.
Victim 2's statements in the Preliminary Intake Risk Assessment bore sufficient indicia of reliability. First, the statements are consistent with the plaintiff's known behavior: a court martial found him guilty of multiple counts of assault for his conduct with respect to Victim 2 as well as rape and attempted rape of two other women around the same time. Second, the plaintiff corroborated Victim 2's account during his intake at Fort Leavenworth when he stated that he "came up behind her," "pinned her down," and "dropped her pants," after which she asked if he was going to rape her. These strong indications of reliability overcome any concerns from the lack of information about the specific circumstances in which Victim 2 made her statements. Although third-level hearsay demands special scrutiny, the totality of the evidence indicated that the Preliminary Intake Risk Assessment accurately reflected the girlfriend's actual statements. See Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312 (2007). The examiner did not abuse her discretion in relying on the statements to conclude that the plaintiff attempted to rape Victim 2.
The plaintiff's arguments challenging Victim 2's statements are not applicable to his own statements, which unlike hers were not sourced from the unavailable "Report of Investigation." Rather, his statements were written in the first person under a different section in the Preliminary Intake Risk Assessment entitled "Inmate's Version." These statements are not hearsay, see Commonwealth v. Mendes, 441 Mass. 459, 467 (2004) ; Mass. G. Evid. § 801(d)(2)(A) (2021), and the plaintiff offers no reason to question the accuracy of Lesniak's account of the plaintiff's version.
In any case, the hearing examiner's reliance on Victim 2's statements to conclude that the plaintiff attempted to rape her did not prejudice the plaintiff. Indeed, the examiner could have concluded that an attempted rape occurred from the plaintiff's version alone. Moreover, considering Victim 2 as a victim of repeated physical assault, but not attempted rape, would not have altered the examiner's application of the one high-risk and eight risk-elevating factors discussed infra. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 764-765 (2006).
3. Application of aggravating and mitigating factors. The board must prove a sex offender's risk classification by clear and convincing evidence. See Doe No. 523391 , 95 Mass. App. Ct. at 91. Classification decisions are guided by aggravating and mitigating "factors to determine each sex offender's level of risk of reoffense and degree of dangerousness posed to the public." 803 Code Mass. Regs. § 1.33 (2016). See also G. L. c. 6, § 178K (1) (a )-(l ). We review the hearing examiner's consideration of the factors for abuse of discretion and ultimate classification decision for substantial evidence. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014).
a. Aggravating factors. In considering the applicable aggravating factors in this case, the hearing examiner principally relied on the plaintiff's offenses against his wife (Victim 1), his girlfriend (Victim 2), and a solider in his unit (Victim 3) during a four-month period while he was stationed at Fort Hood in 2011. He committed the offenses against Victim 2 and Victim 3 within two months of his arrest for sexually assaulting Victim 1. Taken together, these incidents supported application of one high-risk factor (repetitive and compulsive behavior) and eight risk-elevating factors. See 803 Code Mass. Regs. §§ 1.33(2), (7)-(11), (19), (21)-(22) (2016).
The plaintiff argues that the hearing examiner erred in applying risk-elevating factor 11 (violence unrelated to sexual assaults) because she gave only "minimal weight" to plaintiff's completion of a single anger management course one month into his incarceration. We discern no prejudice even if the hearing examiner should have given greater mitigating weight to the completed course. The plaintiff's convictions for kicking Victim 1 in the back, punching her in the stomach when she was pregnant, and striking her with a closed fist, and for hitting Victim 2 on the buttocks and striking her with a belt, more than justified application of factor 11.
We discern no error in the hearing examiner's decision to discount the plaintiff's completion of the same anger management class as a mitigating factor.
b. Mitigating factors. The hearing examiner applied several mitigating factors, including the plaintiff's parole supervision (mitigating factor 28), completion of sex offender treatment (mitigating factor 32), support from family (mitigating factor 33), and stable home and work life (mitigating factor 34). See 803 Code Mass. Regs. § 1.33(28), (32)-(34) (2016).
The plaintiff argues that the hearing examiner erred in giving only "moderate weight" to his family support. In concluding that this factor applied, the hearing examiner considered the plaintiff's living arrangement with his cousin in South Dennis, visits with his brother and father in Connecticut during the holidays, and letters from relatives attesting to his good character and their support for him. Notably, however, at least three of his six supportive relatives lived abroad, and none of them indicated an awareness of his specific offenses or how they would support his rehabilitation. For those reasons, the hearing examiner did not abuse her discretion in assigning less than full weight to the plaintiff's family support.
In sum, the hearing examiner's decision reflects a thoughtful and careful balancing of the relevant aggravating and mitigating factors. The classification decision was supported by substantial evidence.
4. Internet dissemination. Finally, the plaintiff argues that we should remand this case because the hearing examiner did not make explicit findings that a public safety interest is served by Internet dissemination of the plaintiff's sex offender classification. Because the hearing examiner's decision in this case preceded Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019), we have the "discretion to determine whether to remand the case for explicit findings" or to conclude that "the underlying facts of the case ... so clearly dictate the appropriate classification level that a ... remand for explicit findings is not necessary." Id. at 657 & n.4.
Given the violent, repetitive, and compulsive nature of the plaintiff's sex offenses against intrafamilial and extrafamilial victims, we conclude that the facts in the record "clearly dictate" the assigned level three classification. A remand is therefore unnecessary.
Judgment affirmed.