Opinion
21-P-473
10-13-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 526110 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
John Doe No. 526110 (Doe) appeals from a judgment upholding a decision of the Sex Offender Registry Board (SORB) classifying him as a level three sex offender. SORB relied in part on factor 2, repetitive and compulsive behavior, because Doe had committed a sex offense after being criminally charged for an earlier sex offense. See 803 Code Mass. Regs. § 1.33(2) (a) (2016). Doe contends that he was improperly classified because a police report relied on by the SORB hearing examiner to establish the earlier sex offense contained unreliable hearsay. We affirm.
1. Hearsay.
In 2007 Doe was charged with assault with intent to rape and indecent assault and battery on a person fourteen years of age or over. The charges were ultimately dismissed. In 2017 Doe pleaded guilty to one count of indecent assault and battery on a person fourteen years of age or over. The hearing examiner applied factor 2 with full aggravating weight because Doe had sexually assaulted a woman in 2017 after having been charged with another sexual offense in 2007. See 803 Code Mass. Regs. § 1.33(2) (a) . Application of factor 2 would be error, however, if the hearing officer relied improperly on the 2007 police report to find the facts pertaining to the earlier sex offense.
In the absence of a plea or conviction, the hearing examiner was permitted to rely on the 2007 police report if the hearsay statements bore "sufficient indicia of reliability." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 89 (2019). "Such indicia include 'the general plausibility and consistency of the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like.'" Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 26-27 (2021), quoting Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass.App.Ct. 309, 313 (2007).
The statements contained in the 2007 police report were factually detailed and plausible. The 2007 victim reported that her former boyfriend, Doe, broke into her home in the early morning hours. When the police arrived, there were pry marks on the door. She was awoken when she sensed a hand over her mouth. She gave a detailed account of threats made by Doe, his demands for sex, and the indecent assault. At approximately 3:30 A.M. the landlady heard noises in the apartment and called the victim to see if she was all right. The victim also reported that Doe grabbed her around the neck. The police observed red marks on her neck. She told the police that Doe threatened her with a knife, but that she had ultimately persuaded him to put it down. She then stuffed the knife behind the couch. The police asked her to show them where the knife was located, and she led them to it.
Doe intercepted and diverted the call.
The 2007 victim's statements recounted in the police report were also internally consistent and were corroborated by physical evidence. The observation of the pry marks and the red marks on the neck were the result of firsthand observations by the officers. In addition, there was an independent witness, the landlady, who placed Doe at the scene and heard noises in the middle of the night sufficient to cause her to check on the well-being of her tenant, thus further corroborating the victim's account. The 2007 police report contained reliable hearsay.
2. Factor 2.
In all other respects, factor 2 was properly applied in this case. The hearing examiner applied factor 2 with full aggravating weight because Doe had assaulted a second victim in 2017, another former girlfriend, thus indicating that his behavior was both repetitive and compulsive. Although SORB has previously conceded error with respect to other aspects of factor 2, see Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass.App.Ct. 797, 800 (2022), here, we discern no error in the hearing officer's application of so much of factor 2 as permits a finding of repetitive and compulsive behavior because Doe reoffended after having been charged with a previous sexual offense. Contrast Id. at 799; Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass.App.Ct. 738, 742-743 (2019). We therefore agree with the judge that the board's decision to classify Doe as a level three sex offender was supported by clear and convincing evidence.
Doe's 2017 offenses also included an attack on a former girlfriend (2017 victim). After the 2017 victim obtained a restraining order against Doe based on allegations of physical and sexual abuse, he appeared at her apartment looking for her. As was the case in the 2007 assault, he choked the 2017 victim and assaulted her, made threats, and expressed jealousy over her relationship with another man. The hearing examiner credited these allegations, and further found that Doe had raped the victim in the 2017 assault, a finding that is not challenged on appeal.
Judgment affirmed.
The panelists are listed in order of seniority.