Opinion
18-P-1296
06-30-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 432172 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. He appeals, contending that (1) the SORB hearing examiner (examiner) failed to properly apply the regulatory factors, (2) the decision is not supported by substantial evidence, and (3) the evidence failed to establish that Internet dissemination is necessary. We affirm.
1. Governing offenses. In January 1990, Doe's then-girlfriend reported to police in New York that Doe raped her. Doe pleaded guilty in the Bronx County Supreme Court to first degree attempted rape, forcible compulsion. He was sentenced to three to six years in prison. Charges of third degree assault with intent to cause physical injury, criminal possession of a firearm, and resisting arrest were dismissed.
The examiner determined that Doe's New York conviction was a like offense to the Massachusetts crime of attempted rape. Doe does not challenge this on appeal.
In October 2006, a sixteen year old girl, a friend of Doe's daughter, reported to police in New York that Doe sexually assaulted her. The victim was treated at a hospital, and a sexual assault kit was done. Thereafter, in January 2007, the victim reported to the police that Doe, armed with a handgun, threatened to kill her if she did not change her story. Doe was charged with rape, tampering with a witness, and menacing with a gun. He pleaded guilty to second degree menacing, weapon; he was sentenced to one year in prison.
The examiner declined to consider an additional alleged sexual assault that occurred in 1997 in New York, as the examiner concluded that the police report regarding that assault was not specific, detailed, or corroborated.
2. Hearing examiner's decision. The examiner held a hearing pursuant to G. L. c. 6, § 178L, and applied the regulatory risk factors as promulgated in 803 Code Mass. Regs. § 1.33 (2016). He concluded that Doe must register as a level two sex offender.
a. High risk factors. The examiner found that factor 2, repetitive and compulsive behavior, one of the six high risk factors, applied to Doe. The examiner gave this factor full aggravating weight because Doe engaged in sexual misconduct after having been convicted of a sex offense, and the second victim was sixteen years old at the time of the offense.
b. Risk-elevating factors. The examiner next considered risk-elevating factors that demonstrated Doe's risk of reoffense and dangerousness. He gave factor 7, relationship between offender and victim, aggravating weight because both victims were extrafamilial. The examiner applied factor 9, alcohol and substance abuse, as Doe admitted that he had a history of drug addiction prior to 1990; however, the examiner tempered the aggravating weight due to Doe's self-reported twenty-six year period of abstinence. The examiner gave factor 19, level of physical contact, full aggravating weight. As to the 1990 offense, the examiner found that the police report was not specific regarding penetration, but that the term rape "indicates some type of penetration." As to the 2006 offense, the examiner credited the police report, which included a statement from the victim that Doe inserted his penis into her vagina. Accordingly, the examiner found that penile vaginal penetration occurred in at least one of the assaults. He also applied factor 22, number of victims, because Doe offended against two victims.
The examiner did not apply factor 8, weapons, violence, or infliction of bodily injury, because he concluded that he did not have enough details to apply it.
The examiner gave full aggravating weight to factor 10, contact with the criminal justice system. He cited Doe's lengthy criminal record, which dates back thirty-three years, beginning when Doe was seventeen years old. Among other things, Doe was charged with second degree burglary; he pleaded guilty to disorderly conduct. Thereafter, he pleaded guilty to third degree robbery and criminal possession of a firearm; that same year Doe pleaded guilty to another firearm offense. In 2006, Doe pleaded guilty to failure to register as a sex offender. The examiner used the same evidence to conclude that factor 11, violence unrelated to sexual assaults, also applied, but he tempered the aggravating weight that he assigned to factor 11, because although Doe was charged with robbery and firearm offenses, those crimes were remote in time.
c. Risk-mitigating factors. The examiner next considered risk-mitigating factors. He gave moderate mitigating weight to factor 29, offense-free time in the community. Although Doe was offense free since 2008, the examiner found that the risk for reoffense decreases for offenders living in the community for five to ten years, and Doe had not been in the community for the full ten years. Contrary to Doe's contention, the examiner gave factor 30, advanced age, full mitigating weight, as Doe was fifty years old at the time of the hearing. As to factors 33 and 34, the examiner gave mitigating weight to Doe's home situation and support systems, and to Doe's stability in the community. This was based on Doe's representation that he was engaged to be married, had a good job, and had a comfortable place to live. The examiner did not apply any weight to factor 32, sex offender treatment. In response to SORB's request for records, officials from New York indicated that the records could not be located. Doe was thus unable to provide documentation to support his contention that he participated in sex offender treatment from 1990 to 1994.
It is the responsibility of the offender to provide documentation from a treatment provider to verify participation and completion of the treatment. 803 Code Mass. Regs. § 1.33(32) (2016). However, Doe's letters to New York authorities state that the institution where he attended sex offender treatment no longer exists. We do not decide whether Doe satisfied his obligation to produce the records under these circumstances, because our decision is not impacted by the examiner's decision not to consider factor 32. The evidence provided by Doe of treatment was sparse even in his own statements, and in our view this does not impact either the examiner's decision or our review.
d. Additional factors. Doe submitted two articles to the examiner regarding sex offender registration and the negative consequences to the offender, along with a letter from Doe about violence he suffered as a result of his sex offender status. The examiner considered these submission pursuant to factor 37, but gave them little consideration as he determined that they did not assist him in his obligation to assess whether Doe poses a risk to reoffend and is currently dangerous. The examiner ultimately concluded that the high risk and risk-elevating factors outweighed the risk-mitigating factors and finally classified Doe as level two.
3. Discussion. a. The examiner's report. An agency decision should be set aside only if a court determines that the decision is "unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law" (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88 (2019) (Doe No. 523391 ). Our review of the Superior Court judge's decision is de novo, but our review of the underlying agency decision is more limited. See id. at 88-89. We "give due weight to the experience, technical competence, and specialized knowledge of the agency" (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ). The classification decision must be supported by clear and convincing evidence; however, "subsidiary facts need be proved only by a preponderance of the evidence." Doe No. 523391 , supra at 86. The underlying evidence must bear "sufficient indicia of reliability" such that "it was reasonable for the examiner to admit and credit the facts described in the [challenged] evidence" (quotation omitted and citation). Id. at 89.
The crux of Doe's contention is that the examiner erred in finding that he raped both victims, which in turn was relevant to how the examiner applied some of the factors discussed above. As to the first conviction, the examiner restated the facts as set forth in the police report regarding the assault on the victim, Doe's then-girlfriend. Notwithstanding the recitation, the examiner found that Doe was convicted of first degree attempted rape, forcible compulsion. As to the second conviction, the examiner credited the police report, which included the victim's statement that Doe raped her. Doe claims it was error to rely on the police report because he was not charged with a sex offense and because the bare allegation set forth in the report was uncorroborated.
Although the examiner indicated that Doe's first governing offense included "some penetration," the examiner did not rely on this assault. Rather, the examiner noted that penetration occurred in at least one of the assaults, which is consistent with his analysis of the facts surrounding the second governing offense.
We are unpersuaded. An 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) (Doe No. 356011 ). An 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.
Here, the examiner reasonably credited the victim's statements to the police wherein she described the attack, including the fact that Doe inserted his penis into her vagina. This report is corroborated by the victim's subsequent treatment at a hospital, including a rape kit examination. The credibility of the allegations was bolstered by Doe's subsequent threat to the victim, including using a handgun to get her to change her story. Indeed, it is that very act to which Doe pleaded guilty. See Doe No. 523391 , 95 Mass. App. Ct. at 89 ("Common indicia of reliability include a detailed account; the consistency of the hearsay with other, known behavior; . . . and independent corroboration" [citations omitted]). The examiner's reliance on this evidence was proper. See, e.g., id. at 89-91 (examiner considered reliable and corroborated reports of sexual assault despite fact that charges were nol prossed). Moreover, "[a] hearing examiner . . . is not, in our view, limited to the terms of the plea agreement, which can be and generally is based on factors other than the facts of the case." Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 313 (2007). On this record, substantial evidence supports the examiner's decision that Doe poses a moderate risk for sexual reoffense and a moderate degree of dangerousness.
Nor do we discern error in the examiner's application of any other factors that Doe challenges.
b. Internet dissemination. The examiner did not expressly address whether public safety is served by Internet publication of Doe's sex offender registration information. In the absence of such findings, remand may not be required if "the underlying facts of the case may so clearly dictate the appropriate classification level." Doe No. 496501 , 482 Mass. at 657 n.4. Here, Doe's extensive criminal record is indicative of lawlessness and antisocial behavior. See 803 Code Mass. Regs. § 1.33(10)(a) (2016). In addition to the governing contact sex offenses against two separate victims, Doe has been charged with and convicted of, among other things, firearm related offenses and a robbery. He has also pleaded guilty to failure to register. Dissemination of Doe's sex offender registration information would allow the public to take precautions to avoid encountering Doe in situations where members of the public are vulnerable. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 145-146 (2019). A remand is not warranted on this record.
Judgment affirmed.
By the Court (Sullivan, Blake & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 30, 2020.