Opinion
No. 11–P–235.
2012-05-22
John DOE, Sex Offender Registry Board No. 29325, v. SEX OFFENDER REGISTRY BOARD.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (Doe) appeals from a judgment of the Superior Court affirming a final classification by the Sex Offender Registry Board (SORB) requiring him to register as a level two (moderate risk) sex offender. We affirm.
Background. In 1999, Doe entered guilty pleas to one count of indecent assault and battery on a child under the age of fourteen, in violation of G.L. c. 265, § 13B, and one count of indecent assault and battery on a person over the age of fourteen, in violation of G.L. c. 265, § 13H. The charges were based upon the plaintiff's sexual conduct towards a male acquaintance over the course of ten years, beginning in 1982 or 1983 when the victim was approximately eight years old and Doe was eleven years old.
In January, 2008, SORB notified Doe that it had preliminarily classified him as a level two sex offender. Doe requested an evidentiary hearing to challenge SORB's determination, and one was held in December, 2008. The hearing examiner upheld the level two classification. Doe appealed to the Superior Court pursuant to G.L. c. 30A, § 14, and G.L. c. 6, § 178M. In a thorough opinion, the judge denied Doe's motion for judgment on the pleadings and affirmed SORB's decision.
Discussion. In considering Doe's claim that SORB's decision was based upon insufficient evidence, we employ well-established standards of review. We “give 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. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787, 857 N.E.2d 492 (2006), quoting from G.L. c. 30A, § 14(7). We set aside a hearing examiner's decision only if it is unsupported by substantial evidence, arbitrary or capricious, or otherwise not in accordance with the law. G.L. c. 30A, § 14(7).
Here, the hearing examiner's decision is supported by substantial evidence and is not arbitrary, capricious, or contrary to law. It is evident that she performed a detailed analysis of the evidence and applied the relevant regulatory criteria to the facts at hand. She explained that certain facts normally would be seen as extremely aggravating: Doe had “engaged in multiple and escalating acts of high physical contact on numerous occasions over the course of several years” with a victim of “an extravulnerable age,” and, later, had sexually assaulted a female coworker. However, she also took into account Doe's young age at the time of his original offenses, his belief that he had been engaged in a consensual relationship, his minimal criminal history, his participation in sex offender treatment, and the successful completion of his term of probation. Finally, she pointed out that, in the future, if Doe can establish offense-free stability in the community, he might be a candidate for administrative review to determine whether his classification should be lowered. In short, the ultimate conclusion, that Doe currently presents a moderate risk of reoffense and a moderate degree of dangerousness, reflects a measured judgment, arrived at after careful consideration of both aggravating and mitigating factors.
Doe's additional arguments require little discussion. His constitutional arguments are without merit given that there was sufficient evidence for the hearing examiner to classify him as a level 2 sex offender. See also, the additional reasons stated in the appellee's brief at pages 22 to 25. His argument that SORB was required to present expert testimony to rebut his evidence is foreclosed by Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., supra at 785, 857 N.E.2d 492.
Judgment affirmed.