Opinion
19-P-820
12-02-2020
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 199212 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 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (SORB or board) classification of him as a level three sex offender. His obligation to register as a sex offender is a consequence of his 2007 convictions on four indictments for indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B, based on multiple sexual touchings of two prepubescent girls over an approximately seventeen-month period between 2002 and 2004. After a two-day hearing at which Doe presented the expert testimony of Dr. Eric L. Brown, the hearing examiner classified Doe as a level three sex offender, documenting her reasoning in a forty-five page memorandum. A Superior Court judge affirmed the hearing examiner's decision, finding it to be "extremely thorough." On appeal, Doe argues that the hearing examiner (1) improperly considered a police report documenting allegations that he sexually assaulted a thirteen year old girl in 1998; (2) gave insufficient weight to the expert testimony he proffered; and (3) failed to make explicit findings why active public dissemination of his information serves a substantial public safety interest. We affirm.
SORB did not present expert testimony.
In making that determination, SORB is required to consider a nonexhaustive list of twelve statutory factors. See G. L. c. 6, § 178K (1) (a)-(1). SORB's guidelines govern the application of each statutory factor, setting out thirty-eight relevant aggravating and mitigating considerations. See 803 Code Mass. Regs. § 1.33 (2016).
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) (Doe No. 523391 ), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011 ). "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. Hearsay. To support her decision to give increased weight to regulatory factor two (repetitive and compulsive behavior), the hearing examiner relied on a police report which Doe maintains was unreliable hearsay. "In the context of a sex offender classification hearing, hearsay evidence may be admissible if it bears sufficient indicia of reliability." Doe No. 523391 , 95 Mass. App. Ct. at 89. "Common indicia of reliability include a detailed account, the consistency of the hearsay incident with other, known behavior, admissions by the offender, and independent corroboration" (citations omitted). Id. In reviewing a hearing examiner's conclusion that hearsay evidence is substantially reliable, we consider whether "it was reasonable for the examiner to admit and credit" the facts described in the statement. Doe No. 356011 , 88 Mass. App. Ct. at 77.
The police report documented that in 1998 a thirteen year old girl reported that Doe forcibly touched her breasts and unbuttoned her jeans, and she was subsequently treated at a hospital for vaginal bleeding. Doe was arrested and charged with assault with intent to rape, indecent assault and battery on a child, and rape of a child, but about three months later, the charges were dismissed without prejudice at the Commonwealth's request. In 2016, Doe admitted to a clinician at the Massachusetts Treatment Center that he had had "sex" with the thirteen year old girl and she had bled, but the charges were dismissed because she "never showed up to court." He claimed that she had asked him out, and when he asked for proof of her age, she had shown him a false identification card showing she was eighteen. The hearing examiner credited the police report as establishing that Doe "at minimum indecently assaulted" the thirteen year old girl.
The hearing examiner's decision to credit the police report was reasonable. The report bears sufficient indicia of reliability because it contains a detailed account by the victim, corroborated by statements of her mother describing her medical treatment, and particularly by Doe's own statements that he had "sex" with that victim and she bled afterwards. That the charges did not result in any criminal conviction does not render this hearsay evidence either inadmissible or unreliable. See Doe No. 523391 , 95 Mass. App. Ct. at 90.
Because the police report was reliable, it was within the hearing examiner's discretionary authority to consider it in the context of regulatory risk factor two (repetitive and compulsive behavior). In evaluating factor two, the hearing examiner properly applied "the most weight" because Doe "engage[d] in sexual misconduct after having been charged with or convicted of a sex offense." Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019), quoting 803 Code Mass. Regs. § 1.33(2) (2016). Specifically, after having been charged in 1998 with sex crimes against the thirteen year old girl, Doe subsequently sexually assaulted two other child victims between 2002 and 2004. Doe's claim in 2016 that he supposedly believed that the 1998 victim was eighteen did not require the hearing examiner to diminish the weight she gave to factor two.
3. Expert testimony. Doe contends that the hearing examiner abused her discretion in applying minimal weight to Dr. Brown's testimony, and in failing to state objectively adequate reasons for declining to adopt his opinion that Doe posed no risk of reoffense or danger to the public. Although the hearing examiner was required to carefully consider expert testimony, Doe is not "entitled to a guarantee that SORB will reach the same conclusion as his expert." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019) (Doe No. 23656 ). A hearing examiner may reject uncontradicted expert testimony, provided [s]he articulates an "objectively adequate reason" for doing so. Id.
This is true "even where the board does not present any contrary expert testimony." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011).
After careful consideration, the hearing examiner gave Dr. Brown's testimony minimal weight because she found that "inconsistencies and oversights in [his] evaluation diminish[ed] his credibility." "It is the province of the board, not this court, to weigh the credibility of witnesses and to resolve any factual disputes." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800 ). The hearing examiner explicitly noted several contradictions in Dr. Brown's findings, and articulated various conclusions with which she disagreed. Specifically, the hearing examiner disagreed with Dr. Brown's conclusions (1) that the 1998 sexual assault on the thirteen year old girl was not sexual misconduct; (2) that because the victims involved in his 2007 convictions were the children of his cousin's wife, those "resemble[d] incest offenses" and so posed less of a risk of reoffense under factor seven; and (3) that because he was in the community without reoffending for four years during the pendency of the case leading to his 2007 convictions, his behavior was not impulsive or compulsive.
Those contradictions in Dr. Brown's findings included: (1) that Doe does not suffer from "a mental abnormality or personality disorder that makes him likely to reoffend" but "exhibits a combination of mental disorders that . . . contribute to his sex offenses"; (2) that Doe "accepted responsibility" for his offenses but also "disputes his convictions and makes some cogent arguments about his innocence"; and (3) that Doe does not demonstrate "sexual deviancy" despite phallometric assessment results indicating that he does.
See Doe, Sex Offender Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass. 666, 673 (2020) (hearing examiner must consider expert testimony regarding offense-free time prior to incarceration, but "[t]o the extent the hearing examiner does not credit the testimony . . . the hearing examiner may discount that testimony in rendering the classification decision").
The hearing examiner also differed from Dr. Brown in the amount of weight she allocated to various regulatory factors. A "hearing examiner has discretion to consider which regulatory factors are applicable and how much weight to give each factor based on evidence at [the] hearing." Doe No. 10800 , 459 Mass. at 633, citing Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006). Here, the hearing examiner's differing application of the factors was supported by the evidence based on Doe's (1) criminal history record and eighteen disciplinary reports incurred while incarcerated, (2) history of violating probation, and (3) lack of evidence that Doe would be residing with his family.
It was within the discretion of the hearing examiner to reject, as not supported by the evidence, Dr. Brown's opinion that Doe "does not represent any risk of re-offense or danger to the public" (emphasis added). Where the hearing examiner articulated objectively adequate reasons for applying minimal weight to Dr. Brown's opinions, and those reasons were supported by substantial evidence, we discern no abuse of discretion.
4. Internet publication. Doe argues that the hearing examiner erred in failing to make explicit findings explaining why public dissemination of Doe's information was in the interests of public safety. Doe's level three classification implicitly includes a finding, by clear and convincing evidence, that a public safety interest would be served by Internet publication of Doe's registry information. Doe's hearing was conducted, and the hearing examiner issued her decision, prior to the announcement in Doe No. 496501 , 482 Mass. at 655-658, that "prospectively" the board must make an explicit finding in this regard.
Based on the findings in the hearing examiner's decision, there is substantial evidence supporting her implicit conclusion that Internet publication is required. Specifically, the hearing examiner found reliable evidence that in 1998 Doe sexually assaulted the thirteen year old girl, was charged with sex offenses that were later dismissed, and subsequently indecently touched two prepubescent children over an extended period of time, for which he was incarcerated. In these circumstances, we conclude that the underlying facts of this matter dictate a finding that Internet publication would serve a public safety purpose by enabling members of the public, particularly children, to avoid encountering Doe. See Doe No. 23656 , 483 Mass. at 145-146. Therefore, we are satisfied that "the underlying facts of the case . . . so clearly dictate the appropriate classification level . . . that a remand for explicit findings is not necessary." Doe No. 496501 , 482 Mass. at 657 n.4.
Judgment affirmed.
By the Court (Massing, Singh & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 2, 2020.