Opinion
20-P-1276
03-02-2022
John DOE, Sex Offender Registry Board No. 216127 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 three sex offender. We affirm.
Background. We summarize the facts as set forth in the hearing examiner's decision, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011). In 2008, Doe pleaded guilty to one count of rape of a child with force, G. L. c. 265, § 22A ; one count of rape, G. L. c. 265, § 22 ; and one count of incestuous intercourse, G. L. c. 272, § 17. These convictions stem from Doe's sexual misconduct against his daughter, victim 1, for seventeen years, starting when she was six years old until she was twenty-three years old. At the age of nineteen, victim 1 became pregnant by Doe and she gave birth to a child. Throughout the seventeen years of sexual misconduct, Doe threatened victim 1 that he would kill their family if she ever disclosed what happened.
The hearing examiner also found that Doe committed sexual misconduct against his son, victim 2, when his son was approximately five years old. The hearing examiner found that Doe pulled down his son's underwear and then victim 2 felt a sharp pain in his rectum and "passed out." The specific indictment identifying victim 2 was nolle prossed. Doe sexually abused a third victim, victim 3, who was sixteen years old at the time of the abuse. Victim 3 lived on the same street as Doe and smoked marijuana with Doe. While no charges were brought in connection with the sexual misconduct against victim 3, the hearing examiner found victim 3's allegations to be reliable and specific.
The hearing examiner applied several high risk and risk-elevating factors, including factor 2 (repetitive and compulsive behavior) and factor 7 (relationship between offender and victim). The hearing examiner also applied several risk mitigating factors. After taking all the factors into account, the hearing examiner found by clear and convincing evidence that Doe "presents a high risk of re-offense and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination of his sex offender registry information." Accordingly, the hearing examiner classified Doe as a level three sex offender. Doe sought judicial review of that decision in Superior Court pursuant to G. L. c. 30A, § 14. After Doe filed a motion for judgment on the pleadings, a Superior Court judge entered judgment for SORB, affirming Doe's classification. Doe appealed.
Discussion. 1. Standard of review. "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. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602, (2013), quoting G. L. c. 30A, § 14 (7). We may, however, "set aside or modify SORB's classification decision where ... 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).
To support a level three sex offender classification, SORB bears the burden of showing, by clear and convincing evidence, Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), "that the risk of reoffense 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 registration information]." Doe No. 496501 , 482 Mass. At 646, quoting G. L. c. 6, § 178K (2) (c ). The SORB hearing examiner is required to make express findings as to each of the required elements, see Doe No. 496501 , supra at 656-657, and is required to consider a nonexhaustive list of twelve statutory factors, see G. L. c. 6, § 178K (1) (a )-(l ), as well as any other information "useful" to its determinations of risk and dangerousness. G. L. c. 6, § 178L (1). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105 (2014). SORB's guidelines govern the application of each statutory factor, setting out thirty-eight relevant aggravating and mitigating considerations. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 134 (2019), citing 803 Code Mass. Regs. § 1.33 (2016).
2. Repetitive and compulsive behavior (factor 2). This court has rebuffed a facial constitutional challenge to factor 2. See Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 292, 296-298 (2021). Since then, a judge of the Superior Court has declared the repetitive and compulsive factor, 803 Code Mass. Regs. § 1.33(2), to be invalid. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Mass. Super. Ct., No. 20-1130-B (April 16, 2021). SORB has not appealed from that decision and has acknowledged to this court in other cases that the Superior Court memorandum and order in that case is binding on it and represented that it no longer relies on factor 2.
We recognize that the hearing examiner here did not have the benefit of the Superior Court memorandum and order when she wrote her decision.
Like other panels to have considered the issue, we review Doe's classification without application of factor 2. See Doe, Sex Offender Registry Bd. No. 526277 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1102 (2021) ; Doe, Sex Offender Registry Bd. No. 524065 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1102 (2021). Because the record adequately supports Doe's classification even in the absence of this factor, however, we discern no prejudice in its application to Doe, and do not remand on this basis.
3. Relationship between offender and victim (factor 7). Doe argues that the hearing examiner's application of statutory factor 7 (relationship between offender and victim) was error because there was no reliable evidence that he sexually assaulted victim 3, who was an extrafamilial victim. As an initial matter, Doe's argument regarding factor 7 is waived because no such argument was raised before the hearing examiner or in the Superior Court. See Springfield v. Civil Serv. Comm'n, 469 Mass. 370, 382 (2014) ("[f]ailure to raise an issue before an appointing authority, an administrative agency, and a reviewing court precludes a party from raising it on appeal"). Only a general argument was raised that the police report regarding victim 3 should be excluded as hearsay. Even if Doe's argument regarding factor 7 was not waived, the hearing examiner's application of factor 7 was not error.
A hearing examiner may consider uncharged sexual conduct where, as here, the evidence of the uncharged conduct is reliable. See Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015). A hearing examiner "may admit and give probative effect to that evidence ‘which reasonable persons are accustomed to rely in the conduct of serious affairs.’ " Id. at 76, quoting G. L. c. 30A, § 11 (2). In the context of a sex offender classification hearing, hearsay evidence may be admissible if it bears sufficient indicia of reliability. Doe No. 356011 , supra at 77. "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, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89-90 (2019). A police report is not deemed inadmissible or unreliable in the absence of a conviction. See Doe No. 356011 , supra at 79.
Here, the hearing examiner found that the information in the police report contained reliable and specific information about the sexual misconduct Doe committed against victim 3. As a result, the hearing examiner applied factor 7 because Doe had an extrafamilial relationship with victim 3, who lived on the same street as Doe and smoked marijuana with him. Victim 3, who was thirty years old when she made the police report, had provided a detailed report to the police about Doe's sexual misconduct against her when she was sixteen years old. We discern no error in the application of factor 7.
4. Substantial evidence. Even with the exclusion of factor 2, a level three classification is supported by substantial evidence. Evidence before the hearing examiner showed that victim 1 was sexually assaulted between the ages of six and twenty-three. Victim 1 became pregnant through an instance of sexual abuse when she was nineteen years old. Therefore, the hearing examiner properly applied full weight to high-risk factor 3 (adult offender with child victim). See 803 Code Mass. Regs. § 1.33(3)(a). See also Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 763 (2006), quoting G. L. c. 6, § 178K (1) (a ) (iii) ("the Legislature has determined that ... an adult committing a sexual offense against a child, indicate[s] a ‘high risk of reoffense and degree of dangerousness posed to the public’ ").
The hearing examiner also properly applied risk-elevating factor 19 (level of physical contact) here where the sexual abuse against victim 1 involved penile-vaginal penetration, penile-anal penetration, and penile-oral penetration. See 803 Code Mass. Regs. § 1.33(19)(a). The hearing examiner also reasonably found that there was reliable information that Doe sexually assaulted victim 2. Thus, factor 22 (number of victims) was properly applied. See 803 Code Mass. Regs. § 1.33(22)(a) ("[o]ffenders who have committed acts of sexual misconduct against two or more victims present an increased risk of reoffense and degree of dangerousness").
There was also significant evidence regarding Doe's use of alcohol, marijuana, cocaine, and crack cocaine, justifying the application of factor 9 (history of alcohol and substance abuse) because Doe's "ability to abstain [from alcohol and drugs] once he is in the community is untested." See 803 Code Mass. Regs. § 1.33(9)(a) ("[d]rugs and alcohol are behavioral disinhibitors" and an offender's "history of treatment, abstinence and relapse should be considered in determining the weight given to factor 9").
The hearing examiner also considered mitigating factors here, applying full weight to factor 28 (probation supervision) because of Doe's supervised probation for three years upon his release from prison and full mitigating weight to factor 30 (advanced age) because Doe was sixty-seven years old at the time of the classification hearing. See 803 Code Mass. Regs. § 1.33(28)(a) ; 803 Code Mass. Regs. § 1.33(30)(a). Mitigating factor 32 (sex offender treatment) was applied because Doe demonstrated progress in his treatment between 2015 and 2018. See 803 Code Mass. Regs. § 1.33(32)(a). The hearing examiner also considered factor 34 (stability in the community) because Doe actively participated in programming during his incarceration, but only applied minimal mitigating weight to this factor due to a lack of evidence "of future plans for potential community stability."
Despite the mitigating factors considered here, a lower classification level is not warranted for Doe. 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.
Judgment affirmed.