Opinion
No. 12–P–263.
2013-04-29
John DOE, Sex Offender Registry Board No. 261943. v. SEX OFFENDER REGISTRY BOARD.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a Superior Court judgment affirming the Sex Offender Registry Board's (Board) classification of John Doe as a level three sex offender. Doe argues that the Board's hearing examiner violated his due process rights to a free, impartial, and independent de novo hearing by failing to consider video tapes of the sexual abuse intervention network (SAIN) interviews of the victims. We affirm.
Background. In 2008, Doe pleaded guilty to two counts of indecent assault and battery on a child under fourteen years and two counts of reckless endangerment of a child. In January, 2010, the Board notified Doe of his obligation to register as a level three sex offender. A hearing was held before a hearing examiner on July 7, 2010. At the hearing, Doe presented, among other things, a digital video disc (DVD) of the SAIN interviews of the victims (SAIN DVD). The DVD was admitted in evidence. Police reports recounting the SAIN interviews also were admitted in evidence. Regarding the police reports, Doe's counsel stated, “Largely they're recitations of the SANE [ sic ] interview.” Although Doe's testimony centered on his denial of the offenses, Doe acknowledged that he may have inappropriately touched the female victim more than once. In his closing, Doe's counsel argued, in detail, that the SAIN DVD established that the victims were unreliable. After considering the evidence, the hearing examiner issued a detailed decision in which he considered at least fourteen factors, pursuant to 803 Mass.Code Regs. § 1.40 (2004), relevant to Doe's classification as a level three sex offender. The hearing examiner considered the repetitive and compulsive nature of Doe's behavior, as well as the fact that the victims were the three year old male and six year old female children of his cousin. The hearing examiner noted that Doe has a lengthy criminal history, has incurred six disciplinary reports while incarcerated for his offenses, and has substance abuse problems. The hearing examiner also considered that Doe denies his guilt and, therefore, has not taken responsibility for his offenses. Discussion. On appeal, Doe argues that the hearing examiner failed to consider the SAIN DVD in making his determination. Specifically, Doe points out that the hearing examiner failed to reference the SAIN DVD and directs his argument to the hearing examiner's following statements as evidence that it was not considered in evidence: “I am bound by the record of conviction in this case and the fact that [Doe] pled guilty to indecently assaulting both children. It is beyond my discretion to reassess the evidence and set aside his plea of guilt; [Doe's] remedy rests elsewhere.”
We do not construe these statements by the hearing examiner to mean that the SAIN DVD was not considered in evidence. Doe takes the hearing examiner's statements out of context. The statements came at the end of the hearing examiner's “summary from the relevant Yarmouth Massachusetts Police Department/SAIN documents.” At the end of the summary, the hearing examiner states that Doe told police that “he did nothing wrong.” The statements at issue immediately follow. It is apparent therefore that the statements relate to Doe's assertions of innocence, not the SAIN DVD. As to the hearing examiner's failure to reference the SAIN DVD in his decision, we do not equate it with an abuse of discretion. See Catlin v. Board of Registration of Architects, 414 Mass. 1, 6 (1992) (“the choice by the board or, indeed, by a court not to refer in a decision to a particular piece of evidence does not imply the failure to consider that evidence when ruling on the issue”).
The substance of Doe's argument is that the hearing examiner failed to adequately consider the reliability of the victims' statements. However, the police reports considered by the hearing examiner largely mirror the SAIN interviews recorded on the DVD. In addition, during the hearing Doe's counsel argued at length that the victims were not credible. The hearing examiner clearly considered this issue and determined that Doe's assertion that the victims were not credible was outweighed by evidence to the contrary. See Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 391 (1999) (“the substantial evidence test accords an appropriate degree of judicial deference to administrative decisions, ensuring that an agency's judgment on questions of fact will enjoy the benefit of the doubt in close cases, but requiring reversal by a reviewing court if the cumulative weight of the evidence tends substantially toward opposite inferences”); Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 610, 618 (2012).
After careful review of the evidence before the hearing examiner and his analysis of the relevant factors, we conclude that the hearing examiner's decision was supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67, 79 (2012).
Judgment affirmed.