Opinion
21-P-337
07-11-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 524221 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, John Doe, appeals from a Superior Court judgment that affirmed his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. Doe contends that the hearing examiner erred in relying on factor 2 (repetitive and compulsive behavior), see G. L. c. 6, § 178K (1) (a) (ii); 803 Code Mass. Regs. § 1.33(2) (a) (2016), and that absent this factor the evidence was insufficient to support his level three classification. We affirm.
Background.
We briefly summarize the essential facts as set forth in the hearing examiner's decision, "supplemented by undisputed facts from the record" and reserving some facts for later discussion. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011). In April 2008, Doe, then fifteen years old, was adjudicated delinquent of open and gross lewdness after he admitted to exposing and shaking his penis at a thirty-six year old woman (victim one) who passed him on the street. He was placed on probation for one year. After twice violating probation, Doe was committed to the Department of Youth Services.
On March 23, 2015, Doe, then twenty-two years old, sexually assaulted two women at a party (victims two and three). Based on that conduct, on June 3, 2016, Doe pleaded guilty to two counts of indecent assault and battery on a person fourteen or over. He was sentenced to four to five years in State prison followed by two years of probation.
Doe was charged with rape of victim two, but the charge was reduced as part of a plea bargain. The examiner nonetheless found that there was "credible, reliable and corroborated" evidence of oral and vaginal penetration. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 89-90 (2019). Doe was not charged with any crimes based on his behavior toward victim three, however, the examiner found that Doe "commit[ted] sexual misconduct" against her. On appeal, Doe does not challenge these findings.
Subsequently, SORB preliminarily classified Doe as a level three sex offender. He challenged the classification and, after additional proceedings not at issue in this appeal and a de novo evidentiary hearing on November 1, 2018, a hearing examiner affirmed that classification. Doe sought judicial review pursuant to G. L. c. 30A, § 14 and G. L. c. 6, § 178M, and a Superior Court judge affirmed SORB's level three classification. This appeal followed.
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). However, we may "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).
2. Application of factor 2.
Doe contends that the examiner erred in relying on factor 2 (repetitive and compulsive behavior), see 803 Code Mass. Regs. § 1.33(2)(a), in her classification decision. Factor 2(a), applicable to adult males, provides in full:
"Repetitive and compulsive behavior is associated with a high risk of reoffense. Factor 2 is applied when a sex offender engages in two or more separate episodes of sexual misconduct. To be considered separate episodes there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct. The Board may give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct. The most weight shall be given to an
offender who engages in sexual misconduct after having been charged with or convicted of a sex offense."Id. After Doe's classification hearing, the second and third sentences of factor 2, which address multiple episodes of unconfronted or uncharged sexual misconduct, were declared invalid by a Middlesex Superior Court judge on the grounds that there is insufficient scientific support for factor 2's correlation between repetitive conduct and a higher risk of reoffense, where the perpetrator has not been confronted between offenses. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 1, 20-22 (Apr. 16, 2021) (Wilkins, J.). However, the last two sentences, which permit an examiner to apply factor 2 to offenders -- like Doe -- who are discovered, confronted, charged, or convicted between episodes of sexual misconduct, remain valid. Here, after the 2008 sexual misconduct, Doe was confronted by police, arrested, prosecuted, adjudicated delinquent, and placed on probation. He then engaged in additional criminal sexual misconduct in 2015. On these facts, we discern no error in the examiner considering and applying "the most weight" to factor 2 in her classification decision.
SORB has not appealed that decision, and concedes that it is bound by it.
In his brief, Doe sought remand "for the proper application of what remains of [f]actor 2" after the declaratory judgment. During oral argument, however, he acknowledged that the last sentence of factor 2 still applies to SORB classification decisions.
Doe's contention that factor 2 could be applied erroneously based on the separate sexual assaults of victims two and three relies on a misreading of the examiner's findings. The examiner was clear that she relied on Doe's commission of new sex offenses in 2015 after having been caught and punished for his 2008 sexual misconduct as a basis for finding there was repetitive and compulsive behavior.
We are likewise unpersuaded by Doe's assertion that the failure to consider that seven years passed between the first and subsequent episodes of sexual misconduct undermines the examiner's determination that Doe's behavior was "compulsive." While "compulsive behavior is not defined in the statute," we previously have "read the regulation as consistent with the statutory requirement of compulsiveness." Doe, Sex Offender Registry Bd. No. 356315 v. Sex Offender Registry Bd., 99 Mass.App.Ct. 292, 297 (2021). The persistence of the compulsion or impulse to offend may be found where "an offender has already been confronted [through detection and conviction] with the wrongfulness of a prior act and nevertheless reoffends." Id. at 297 n.3. Doe cited no legal precedent or scientific evidence before the examiner or the Superior Court judge to support the proposition that the passage of time between one episode of sexual misconduct for which the offender is punished and later sexual misconduct minimizes the risk of reoffense, and he has not done so on appeal. Compare Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass.App.Ct. 738, 743 n.8 (2019) (quoting testimony of Dr. R. Karl Hanson that, while multiple episodes of sexual misconduct alone do not have predictive value, "[i]f a person offends, gets caught and then goes on to reoffend again, that's trouble"). We are satisfied that the examiner properly applied factor 2.
Finally, Doe's assertion that application of factor 2 violated due process under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights is unsupported by reasoned appellate argument and thus we do not consider it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
Doe likewise fails adequately to support his claim that he is entitled to a remand for application of factor 2 as a "new rule. "
3. Substantial evidence.
To the extent Doe asserts that the examiner's decision was unsupported by substantial evidence, he does so on the assumption that the examiner improperly considered factor 2. Given our conclusion that factor 2 was applied properly here, and the absence of any argument that the level three classification decision otherwise was based on something less than "substantial evidence," we discern no grounds on which to set the decision aside.
Judgment affirmed.
The panelists are listed in order of seniority.