Opinion
21-P-386
05-02-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 285142 v. SEX OFFENDER REGISTRY BOARD.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB, or the board) as a level two sex offender. See G. L. c. 6, § 178K (2) (b). Doe argues that SORB's classification decision was arbitrary and capricious because, in determining Doe's risk of reoffense and whether public dissemination of his information was warranted, the hearing examiner (1) considered Doe's testimony regarding his own mental health, and (2) found that Doe's victim pool extended beyond Doe's own family, based on verbal interactions Doe had with one of the victim's friends. We affirm.
Background.
In February of 2009, Doe's fourteen year old half-sister reported to the police that Doe had raped her on four occasions over a period of two years. Doe had also impregnated the victim. Doe, who was twenty years old at the time of the first rape, pleaded guilty to four counts of rape and abuse of a child. He was sentenced to concurrent terms of up to six years of imprisonment, followed by two years of probation. He was released from prison in 2014.
In 2013, a hearing examiner conducted an evidentiary hearing and classified Doe as a level three sex offender. However, as a result of Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 & n.26 (2015), which changed the applicable standard of proof for SORB classification proceedings, the hearing examiner held a second de novo hearing in June 2017 to revisit Doe's classification.
Doe testified at the 2017 hearing. He acknowledged his offenses against the victim, and also explained that he had a good support system and was abstaining from drugs and alcohol. Doe also testified that he was "[s]chizoaffective" and had also been diagnosed with "PTSD," i.e., posttraumatic stress disorder, "[o]ppositional defian[t] disorder," and "bipolar" disorder. Doe stated that, against the advice of medical professionals, he had stopped taking his prescribed medications for these disorders. Doe also described an event that occurred since his release from prison, where he "had a really bad issue where [he] had flashbacks," and had to be taken to the hospital. Doe also identified "[d]rugs and mental health" as "high risk behaviors" that contributed to his underlying offenses.
The hearing examiner also considered a statement that the victim's friend had made to the police back in 2009. According to the friend's statement, Doe had repeatedly told the friend that "he wanted to 'be with'" her. The friend told Doe that she was thirteen years old and wanted to be with people her own age, and he responded that "age doesn't matter." The friend felt uncomfortable and scared during this conversation, which she interpreted as a sexual advance. Doe also used cocaine in front of the friend and told her it would give her "a good feeling."
After the 2017 hearing, Doe was again classified as a level three sex offender (2017 decision). On appeal from the 2017 decision, a different panel of this court again vacated the classification and remanded the matter to SORB. Doe, Sex Offender Registry Bd. No. 285142 v. Sex Offender Registry Bd., 97 Mass.App.Ct. 1109 (2020). In particular, the panel noted that the hearing examiner had overlooked or misunderstood the mitigating evidence regarding Doe's supportive environment and stability in the community. I_d., Mass.App. Ct., No. 18-P-1467, slip op. at 10 (April 6, 2020). The decision, rendered in April of 2020, specifically authorized the hearing examiner on remand "to take new evidence" on "any . . . factors as to which circumstances may have changed." Id.
No new evidence was introduced on remand, and Doe did not seek to introduce any. The hearing examiner issued a third decision (2020 decision) based on the evidence presented at the 2017 hearing, and this time classified Doe as a level two sex offender. Based upon Doe's crimes, the hearing examiner applied factors two (repetitive and compulsive behavior), three (adult offender with child victim) at an elevated weight, and nineteen (level of physical contact).
Doe argues that the hearing examiner erred by not holding a third, evidentiary hearing prior to issuing the 2020 decision. This argument is without merit, where Doe did not seek to introduce new evidence and the panel gave the hearing examiner "full discretion" as to whether to consider new evidence.
The hearing examiner also applied factor nine (alcohol and substance abuse), because Doe reported that he had been under the influence of drugs when he assaulted the victim, and because Doe had a substance use-related adjudication and had violated his probation in drug-related incidents. Further, the hearing examiner considered Doe's substantial contact with the criminal justice system, including multiple previous probation violations. For example, Doe had been adjudicated delinquent on charges of larceny, breaking and entering, assault and battery, and resisting arrest, and had violated his probation on multiple occasions while still a juvenile. The concerning behavior had continued after Doe was released from prison in 2014 -- on the day of his release, Doe returned to the victim's home and threatened a family member who asked him to leave, resulting in a charge of threatening bodily harm and a probation violation. Based on this evidence, the hearing examiner also applied factor ten (contact with the criminal justice system), and factor thirteen (non-compliance with community supervision).
The examiner also applied factor thirty-seven, which allows the examiner to consider any useful information to determine the risk of reoffense. The examiner found that Doe's advances to the victim's thirteen year old friend suggested that Doe's "victim pool is not solely limited to intrafamilial victims, and may be more opportunistic." She also found Doe's "disclosure that he is not taking medications for his mental health issues as recommended by his doctors to be concerning as he identified his mental health issues as a high risk behavior related to his sex offending behavior." Based primarily on these factor thirty-seven considerations, the examiner concluded that public safety was served by Internet publication of Doe's information. A Superior Court judge affirmed the board's decision.
Discussion.
We review the board's decision to determine whether it is "unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). A decision is considered arbitrary and capricious if the board "failed to evaluate [relevant] evidence ... in arriving at a classification determination." Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 608 (2013). An abuse of discretion occurs where the board makes "a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We discern no such error here.
1. Mental health.
Doe first argues that the hearing examiner should not have considered testimony regarding Doe's mental health without the aid of expert testimony or medical records. Doe relies, in particular, on 803 Code Mass. Regs. § 1.33(35) (2016), which states that SORB "shall consider evaluative reports, empirically-based risk assessment instruments, or testimony from a licensed mental health professional" regarding the sex offender's risk of reoffense. Doe interprets this regulation to preclude consideration of evidence regarding mental health, unless provided through an expert or reliable professional documents.
We are not persuaded. Here, Doe offered testimony regarding his own mental health and mental health diagnoses, including that mental health issues were a factor in his original offenses, and that he had stopped taking his prescribed medications. We note that factor thirty-seven allows the hearing examiner to consider "any information that it deems useful in determining risk of reoffense and degree of dangerousness posed by any offender." 803 Code Mass. Regs. § 1.33(37) (2016). A sex offender's testimony regarding his own mental health and diagnoses can provide a unique perspective into his risk of reoffense and degree of dangerousness. We do not read the regulation as stripping the hearing examiner of discretion to consider such testimony. The hearing examiner therefore did not abuse her discretion by considering Doe's testimony, particularly where Doe himself identified mental health as a contributing factor in his original offenses.
We note that 803 Code Mass. Regs. § 1.33(31) (2016), upon which Doe also relies, concerns physical health rather than mental health.
2. Advances on victim's friend.
Doe next argues that the hearing examiner abused her discretion by finding that public dissemination of Doe's information was justified based in part on the statement of the victim's friend.
When evaluating the public safety interest in disseminating a sex offender's information, hearing examiners must consider "whether, in light of the particular risks posed by the particular offender, Internet access to that offender's information might realistically serve to protect the public against the risk of the offender's sexual reoffense." Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 655 (2019). As noted, the board has the power to consider "any information that it deems useful in determining risk of reoffense and degree of dangerousness posed by any offender." 803 Code Mass. Regs. § 1.33(37). The hearing examiner also has discretion to draw reasonable inferences from the evidence before her. 803 Code Mass. Regs. § 1.19(1)(h) (2016). Here, the evidence showed that Doe, then an adult man, repeatedly told an extrafamilial thirteen year old girl that he wanted to "be with" her, and that he continued to express interest after the girl expressed discomfort and disinterest. Doe also told the girl that "age doesn't matter." The hearing examiner could reasonably infer that Doe's repeated sexual advances on an unrelated thirteen year old indicated that his potential victim pool was not confined to his immediate family, and that caretakers of female children would benefit from access to Doe's sex offender information.
3. Factor two.
A recent Superior Court judgment declared factor two, 803 Code Mass. Regs. § 1.33(2) (2016), the repetitive and compulsive factor, to be invalid in part -- that is, to the extent that it "attribute[ed] a high risk of reoffense whenever an offender committed two or more episodes of sexual misconduct, whether or not the offender was discovered, confronted or investigated . . . ." Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 26 (April 16, 2021). At oral argument, SORB conceded that based on the Superior Court decision (which SORB did not appeal), the hearing examiner misapplied factor two in this case, because although Doe raped the victim multiple times, he did not do so after he was confronted. SORB argues, however, that the other factors the examiner applied were more than sufficient to justify the level two classification. On appeal, Doe has not made any arguments regarding factor two, but for the avoidance of doubt, we note that an argument based upon the misapplication of factor two would be unavailing under the circumstances.
The Supreme Judicial Court has stated that when "the underlying facts of the case ... so clearly dictate the appropriate classification level ... a reviewing court may determine that a remand for explicit findings is not necessary." Doe No. 496501 , 482 Mass. at 657 n.4. Such is the case here. Doe repeatedly raped a child victim and eventually impregnated her. Even excising factor two from consideration, the remaining factors identified by the hearing examiner, taken together, "clearly dictate" the level two classification. Those factors include that Doe was an adult offender with a child victim, the high level of physical contact involved, Doe's prior alcohol and substance use, his criminal history, and his non-compliance with community supervision, including his violation by going to the victim's home on the day of his release from prison.
Judgment affirmed.
Green, C.J. Englander & Grant, JJ.
The panelists are listed in order of seniority.