Opinion
21-P-452
05-05-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 527233 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: 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 2 3.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level two sex offender, based on his prior conviction for indecent assault and battery on a person aged fourteen or over, G. L. c. 265, § 13H. On appeal, Doe argues that the SORB hearing examiner improperly concluded that he posed a moderate risk of reoffense and a moderate degree of dangerousness, and that a public safety interest was served by Internet publication of his registry information. We affirm.
Background.
On March 4, 2018, the victim, a twenty-six year old woman, hosted a social gathering at her home attended by Doe, a family friend who was a sixty-two year old man. After drinking with a female friend, the victim fell asleep in her bedroom. While she was sleeping, Doe entered her bedroom.
The victim awakened when she felt Doe "biting her vagina." She realized that her pants and underwear had been removed. Doe told her to relax and calm down. The victim kicked Doe off the bed; he fell to the floor, making a loud noise. Upon hearing the loud noise, another party guest ran to the victim's room and saw Doe kneeling on the floor near the victim's bed and the victim on the bed with her pants and underwear off. After the guest told Doe to leave, Doe poured himself an alcoholic beverage, drank it, and then left. The victim's mother photographed her injuries, and almost three weeks later, the victim underwent a physical examination at a hospital. Doe pleaded guilty to indecent assault and battery on a person aged fourteen or over.
On December 12, 2019, SORB notified Doe that he was required to register as a level three sex offender. Doe challenged the level three classification, and after an evidentiary hearing, the hearing examiner classified Doe as a level two sex offender, finding by clear and convincing evidence that Doe "poses a moderate risk to re-offend and a moderate degree of dangerousness such that a public safety interest is served by public and Internet access to his sex offender registry information." Doe sought judicial review of the hearing examiner's decision, G. L. c. 30A, § 14, and then moved for judgment on the pleadings. A Superior Court judge denied Doe's motion and affirmed Doe's level two classification.
Discussion.
1. Standard of review.
"We review a judge's consideration of an agency decision de novo," giving "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 88-89 (2019), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass.App.Ct. 73, 76 (2015). "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) (Doe No. 496501 ). See G. L. c. 30A, § 14(7).
2. Level two classification.
Doe contends that the hearing examiner's decision was not supported by substantial evidence and was arbitrary or capricious. We disagree. Based on the evidence that Doe bit the vagina of the sleeping victim, to whom he was a family friend, the hearing examiner properly applied factor seven (extrafamilial relationship), factor eight (infliction of bodily injury), and factor eighteen (extravulnerable victim).
Doe finds fault with the hearing examiner's decision because it gave moderate weight to factor ten (contact with criminal justice system) and factor eleven (violence unrelated to sexual assaults) based in part on charges against Doe that were dismissed long ago. The dismissed charges were for operating to endanger in 1978, possession of a class D substance with intent to distribute and possession of a class D substance in 1983, possession of a class D substance in 1984, and malicious destruction of property and assault by means of a dangerous weapon (a motor vehicle) in 2000. In addition, in November 1999, a woman obtained an abuse prevention order against Doe, and in January 2000, Doe incurred a continuance without a finding on a charge of assault and battery.
Applying factor ten required "consideration of the number and type of criminal charges, dispositions on the charges, dates of the criminal conduct, and number of abuse prevention or harassment prevention orders." 803 Code Mass. Regs. § 1.33(10)(a) (2016). "[F]actor ten is not limited to ... a particular time frame . . . [and] does not confine the examiner to consider only convictions." Doe, Sex Offender Registry Bd. No. 390261 v. Sex Offender Registry Bd., 98 Mass.App.Ct. 219, 226 (2020). Similarly, factor eleven does not limit a hearing examiner's consideration to convictions; it requires "consideration of the severity and frequency of violence towards other persons." 803 Code Mass. Regs. § 1.33(11) (a) . Here, Doe's history included an abuse prevention order; an assault and battery charge that was continued without a finding; and several other charges, including a charge of assault by means of a dangerous weapon, that were dismissed. The hearing examiner permissibly gave moderate weight to factor eleven based on Doe's criminal history, as outlined above.
The hearing examiner also considered risk mitigating factors, and applied factor twenty-eight (supervision by probation); factor thirty (advanced age; applied with minimal weight because Doe committed the assault at age sixty-two); factor thirty-three (home situation and support systems); and factor thirty-four (stability in the community). The hearing examiner considered factor thirty-one (physical condition) but gave that factor no weight because Doe committed the assault four years after his prostate surgery.
The facts of the sexual assault and the hearing examiner's application of the factors are "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). Thus, Doe's argument is unavailing that the hearing examiner "d[id] not explain why" Doe presents a moderate risk of reoffense. The hearing examiner analyzed the relevant factors, explicitly stated that the determinations were supported by clear and convincing evidence, and precisely followed the guidance of the Supreme Judicial Court in Doe No. 496501 , 482 Mass. at 657.
3. Internet publication.
Doe also contends that the hearing examiner's decision requiring Internet publication infringes on his liberty and privacy interests. "[I]t is well settled that sex offender registration is a civil regulatory scheme, not punishment." Ernest E. v. Commonwealth, 486 Mass. 183, 189 n.10 (2020). See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787-788 (2008). The law is not ex post facto, nor does it violate Doe's other constitutional rights. Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 496 n.4 (2015) (as statute is regulatory, "the prohibitions against ex post facto punishments and double jeopardy do not apply"). Based on the facts of the sexual assault here, involving a violent attack on a sleeping victim who was not a family member, the hearing examiner properly found that Internet publication was in the interest of public safety.
Judgment affirmed.
The panelists are listed in order of seniority.