Opinion
2021-P-767
12-21-2022
John DOE, Sex Offender Registry Board No. 465773 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner, John Doe, appeals from a Superior Court judgment affirming his reclassification as a level three sex offender. On appeal, Doe argues that the Sex Offender Registry Board's (SORB) hearing examiner abused his discretion by denying Doe's motion for expert funds, and also that the hearing examiner's classification decision is unsupported by substantial evidence and lacks essential findings. We affirm.
Background. We summarize the facts as found in the hearing examiner's decision, saving some details for later discussion.
In October of 2013, Doe approached a woman and asked her for money. When the woman went to give Doe a dollar, Doe made sexualized comments and grabbed the woman's buttocks. Doe was charged with, and pleaded guilty to, indecent assault and battery on a person over fourteen, and received a two-year jail term. Doe was thereafter classified as a level two sex offender.
In July 2017, Doe approached a woman in a store, wrapped his arms around her from behind, bit her earlobe, and thrust his erect penis against her buttocks. Doe pleaded guilty to, among other things, indecent assault and battery on a person over fourteen.
After this offense, SORB sought to reclassify Doe as a level three sex offender. Prior to his hearing, Doe moved for a continuance and expert funds, citing his need to collect medical records and to seek an expert opinion regarding his age, mental illness, and substance abuse. The hearing examiner denied Doe's motion.
At his June 2019 hearing, Doe renewed his motion for expert funds, and asked that the administrative record be kept open to allow him to submit medical records pertaining to an old head injury, his mental illnesses, and his substance abuse issues. The hearing examiner took the motion under advisement, and Doe submitted medical records on July 1, 2019.
The hearing examiner issued a written decision on September 9, 2019. The hearing examiner first denied Doe's renewed request for expert funds because Doe had not shown how his mental illness related to his risk of reoffense or dangerousness. The hearing examiner then determined that Doe met the criteria for a level three sex offender. The hearing examiner relied upon Doe's repetitive and compulsive sexual offenses against strangers, Doe's lengthy and violent criminal past, Doe's history of violence toward women, and his substance abuse. Specifically, the hearing examiner detailed Doe's "decades" of criminal behavior dating back to 1992, including convictions for resisting arrest, assault and battery on a police officer, and several counts of assault and battery with a dangerous weapon. The hearing examiner also gave risk-elevating weight to Doe's history of violence towards women, where Doe has been the subject of five abuse prevention orders involving four different women. A Superior Court judge affirmed Doe's level three classification, and this appeal followed.
Discussion. 1. Motion for expert funds. Doe argues that the hearing examiner erred in denying his motion for expert funds because the records that Doe submitted established the required nexus between his mental illness and his risk of reoffense, thereby validating his need for an expert. "[I]n moving for expert witness funds, the burden [is] on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert." Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). See also 803 Code Mass. Regs. § 1.16(4)(a)(1) (2016) (motion must "explain how [a] condition is connected to [an offender's] ... risk of reoffense or level of dangerousness"). We review the denial of a motion for funds for an abuse of discretion. See Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 307, 310 (2020).
Doe also sought expert funds to evaluate the impact of his substance use and age on his level of risk and dangerousness. An examiner "has discretion to deny expert funds" where "indigent sex offenders [are seeking to] offer expert opinion on factors that the board's regulations already require the hearing examiner to consider." Doe, Sex Offender Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass. 666, 670 (2020). Here, Doe's age and substance use were issues addressed in SORB's regulatory factors. See 803 Code Mass. Regs. §§ 1.33 (9), (30).
Doe's motion and supporting documents did not connect his mental illnesses -- or any treatment of those mental illnesses -- to his risk of reoffense or dangerousness. Instead, Doe claimed only that he had "been treated for many years for ... mental illness," without explaining what Doe was treated for, or the nature of his treatment or its impacts. Although Doe later submitted medical records, those records still failed to connect Doe's mental illnesses to his risk of reoffense or level of danger, where they did not show if or how Doe benefited from treatment. Put differently, Doe's materials did not suggest what role his mental illness has played in his past actions, or how or why his mental illness might not play such a role in the future. See Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 610, 616-617 (2012). Accordingly, the hearing examiner did not abuse his discretion in denying Doe's motion. See Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 28-30 (2021).
Doe claims that an article by Hanson & Bussière, entitled Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. of Consulting and Clinical Psychol. 348 (1998), supplies the requisite nexus. We disagree. The article does not compensate for the fact that Doe marshaled no evidence that he benefited from any mental illness treatments he may have received.
Doe suggests that the required nexus could have been supplied if the hearing examiner had kept the record open longer. This argument is without merit where Doe submitted medical records on July 1, 2019, and the hearing examiner did not issue his decision until September 19, 2019, such that Doe had over two months to submit additional records.
2. Hearing examiner's classification. Doe also claims several errors in the hearing examiner's analysis of the factors leading to his level three classification. Our review of the hearing examiner's decision is limited, and we will not disturb Doe's classification unless "we determine that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800 ). "[W]e give due weight to [the hearing examiner's] experience, technical competence, and specialized knowledge" (citations and quotations omitted). Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501 ).
a. Regulatory factors. Doe first argues that the hearing examiner should have applied factor 35, which provides that SORB "shall consider evaluative reports, empirically-based risk assessment instruments, or testimony from a licensed mental health professional that discuss psychological and psychiatric issues, including major mental illness, as they relate to the offender's risk of reoffense" (emphasis added). 803 Code Mass. Regs. § 1.33(35) (2016). As explained supra, although Doe's medical records contain some evidence that he has experienced mental illness, Doe failed to connect that information to his risk of reoffense, as the factor requires. The hearing examiner therefore did not abuse his discretion. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014) (hearing examiner afforded discretion to determine application and weight of statutory and regulatory factors).
Doe also argues that the hearing examiner should not have applied risk-elevating factors 10 or 11, which relate to an offender's contact with the criminal justice system and history of violence unrelated to sexual assaults. See 803 Code Mass. Regs. §§ 1.33(10)-(11). In applying these factors, the hearing examiner focused on Doe's "decades" of criminal history dating back to 1992. Doe argues not that applying factors 10 and 11 was unwarranted considering this history, but instead that the empirical evidence generally does not support that these factors correlate to recidivism. However, the regulation requires that SORB "shall use" these factors in making classifications and Doe does not challenge the validity of the regulation. See 803 Code Mass. Regs. § 1.33. Given Doe's repeated contacts with the criminal justice system over nearly thirty years, which include numerous convictions for violent offenses such as assault and battery with a dangerous weapon, the record more than sufficiently supports the hearing examiner's application of these factors.
Next, Doe argues that the hearing examiner gave outsized weight to risk-elevating factor 15, which considers an offender's hostility towards women. See 803 Code Mass. Regs. § 1.33(15). The hearing examiner applied this factor because Doe had five restraining orders taken out against him by four different women between 2003 and 2017. Doe claims, however, that minimal weight should have been given to this factor because only one of the five orders was active. We disagree. The application of factor 15 is not dependent on active restraining orders but is instead "applied when an offender ... has multiple abuse prevention orders or harassment prevention orders taken out by different women at different times." See 803 Code Mass. Regs. § 1.33(15). Doe's restraining order history meets the regulatory factor and is indeed concerning, and the hearing examiner was well within his discretion to apply this factor.
3. High risk, degree of dangerousness, and Internet publication findings. Doe also argues that the classification decision must be vacated because the record does not support findings that he presently presents a high risk of reoffense, a high degree of dangerousness, or that public safety requires public access to Doe's registry information. See Doe No. 496501 , 482 Mass. at 650. In giving "due weight" to SORB's "experience, technical competence, and specialized knowledge" (citation and quotation omitted), id. at 649, we are satisfied that the hearing examiner's findings with respect to risk of reoffense and degree of dangerousness are well supported. As noted, substantial record evidence supports that Doe committed at least two sex offenses against stranger victims, in public places, with the second sex offense coming after being convicted for the first. Doe has violated community supervision on three separate occasions, and has long struggled with substance abuse issues. And, as discussed above, Doe has a lengthy and violent criminal history, which includes a concerning history of violence towards women. We therefore cannot say that the hearing examiner's determinations were "unsupported by substantial evidence[,] ... arbitrary or capricious, an abuse of discretion, or not in accordance with law." See Doe No. 10800 , 459 Mass. at 633.
Despite this evidence, Doe argues that the hearing examiner failed to consider the type and severity of the crime that Doe would commit if he were to reoffend, and did not make explicit findings regarding how Internet dissemination of Doe's registry information would serve the public. However, the hearing examiner made an explicit finding that Doe currently poses a high degree of dangerousness, and in so doing considered the type of offense he would likely commit if he were to reoffend by detailing Doe's prior sexual offenses, both of which included sexually assaulting stranger victims in public places. See Doe No. 496501 , 482 Mass. at 651 (examiners "consider [the] type of sexual crime the offender would likely commit if he or she were to reoffend.... based on the sexual ... crimes that the offender committed in the past").
The hearing examiner accordingly concluded that "active dissemination and Internet publication of [Doe's] sex offender registry information" was warranted. There was no error in the hearing examiner's conclusion.
Doe also argues that the hearing examiner erred in considering an allegation that Doe committed a third instance of sexual assault, in 2015. Doe's very brief argument appears to take issue with the reliability of the hearsay evidence contained within a police report, because the allegations did not result in a conviction. Doe's cursory assertion of error does not rise to the level of acceptable appellate argument. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 86 (1995). Regardless, a "lack of criminal conviction does not render information contained within a police report inadmissible in an administrative proceeding." Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 90 (2019).
Judgment affirmed.