Opinion
No. 11–P–645.
2013-04-17
John DOE, Sex Offender Registry Board No. 14182 v. SEX OFFENDER REGISTRY BOARD.
By the Court (CYPHER, GREEN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following notification by the Sex Offender Registry Board (SORB) in May, 2009, that the petitioner had a duty to register as a level three offender, he requested an administrative review. After a hearing on July 16, 2009, the hearing examiner issued a decision classifying him as a level three offender. The petitioner filed a complaint for judicial review in the Superior Court. After a hearing, a judgment entered on October 20, 2010, denying his motion for judgment on the pleadings. This appeal followed.
Background. The petitioner was adjudicated delinquent of rape and abuse of a five year old girl in 1983 when he was fifteen. In 2006, the petitioner was charged with indecent assault and battery on two girls, both seven years old. In 2007, then thirty-eight years old, the petitioner was convicted of indecent assault and battery on a six year old girl in 2006. At the same time the petitioner was acquitted of the charges against the two seven year old girls. The petitioner was incarcerated, then transferred to the Massachusetts Treatment Center. On appeal from the Superior Court decision, the petitioner argues that there was not substantial evidence supporting his level three classification and asserts that the judge improperly relied on Covell v. Department of Social Servs., 439 Mass. 766 (2003), to find that he engaged in repetitive and compulsive sexual misconduct.
Discussion. Our review proceeds under the principles stated in Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632–633 (2011).
The judge reviewed the hearing examiner's detailed assessment of the evidence applicable to the statutory factors for determining a sex offender's level of risk for reoffense and degree of dangerousness posed to the public.
The judge summarized her review of the factors:
.General Laws, c. 6, § 178K, directs the SORB to consider a number of enumerated factors relevant to a determination of the risk of reoffense. The board has promulgated regulations at 803 Code Mass. Regs. § 1.40 (2002), establishing guidelines for the factors that are applied in the discretion of a hearing examiner. Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 804–805 (2006).
“These include, but are not limited to, the offender's age at first sex offense, the repetitive and compulsive nature of the sexual misconduct, the fact the plaintiff was an adult offender with a child victim, the extra-familial relationship between the plaintiff and his victims, and the lack of offense-free time the plaintiff has had in the community. Additional factors considered in the hearing examiner's determination are the plaintiff's criminal history and anti-social behavior, the fact the offenses were against extra-vulnerable victims, and a victim impact statement made by one victim's parents. Against this evidence, the hearing examiner juxtaposed the plaintiff's current participation in sex offender treatment, the support and testimony from his parents, sister, daughter, and family friend, and his positive adjustment to incarceration. Using these aggravating and mitigating factors, the hearing examiner found that the plaintiff manifests a high risk of re-offense and dangerousness and classified him as a Level 3 sex offender.”
The petitioner asserts that he should have been classified at a lower level because there were many mitigating or risk-reducing factors that undermined the substantial evidence required for level three classification. With two exceptions which we discuss below, the petitioner does not challenge any of the factors cited by the judge in her decision.
The petitioner cites fourteen factors which he asserts are risk-reducing, requiring the hearing examiner to classify him at a lower level. In reviewing these factors in the light of the hearing examiner's findings, we conclude, for the detailed reasons given in the board's brief at pages 16–20, that these factors are not applicable in this case, or that there is either no evidence, or insufficient evidence to consider them. Consequently, there is insufficient evidence to weigh against the hearing examiner's findings on the three high risk factors combined with the seven risk-elevating factors she cited.
As we noted above, the petitioner challenged findings on the two factors which we discuss as follows.
Factor 2— Repetitive and Compulsive Behavior. The hearing examiner found:
“[The petitioner] was sanctioned by the Juvenile Court in 1983 and had the opportunity, before he sexually assaulted three more young girls in 2006, to reflect on the wrongfulness of his conduct and the harm done to his victim, and nevertheless failed to take steps to avoid or prevent a recurrence. The [petitioner's] sexual misconduct is repetitive and compulsive. This has been deemed by the [L]egislature as a ‘high risk’ factor.”
The evidence supporting this finding begins with the petitioner's first sex offense. While he was sanctioned by a judge for that offense, he committed other acts of sexual misconduct after a period of time when he had the opportunity to reflect on the wrongfulness of that conduct. These acts demonstrate separate incidents of misconduct which is repetitive and compulsive. Compare Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 763 n. 10 (2006).
Factor 12— Current Home Situation. The hearing examiner found:
“Offenders who are currently living in positive and supportive environment lessens the likelihood of reoffense by reducing the stressors in his [life] and surrounding himself with family, friends and acquaintances. The [petitioner's] parents, sister, daughter, and a family friend testified at the hearing that they are prepared to give him support upon his release.”
Although the hearing examiner found that the petitioner's family and a friend were prepared to provide support upon his release, she only could conclude that the question of the petitioner's postrelease stability was a matter of conjecture. Next, the petitioner argues that his acquittals erroneously were used against him, and that it was error to use the police reports or rely on the trial testimony of the two girls. There is no merit in this argument. The motion judge ruled that there was “sufficient proof for the hearing examiner to conclude that, although the [petitioner] was found not guilty, sexual misconduct had still occurred regarding his 2006 indictments,” and an erroneous classification did not result. The police reports and records bear the requisite indicia of reliability to be admissible in an administrative hearing. Compare Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass.App.Ct. 309, 312–313 (2007). While the trial evidence may have been insufficient under the standard of beyond a reasonable doubt, that does not preclude the availability of that evidence for use under the substantial evidence test. Cf. Covell v. Department of Social Servs., 439 Mass. at 786.
Finally, there is no merit in the petitioner's assertion that the hearing examiner failed to give close attention to all the evidence. We may presume, in the absence of contrary evidence, that the hearing examiner and the board reviewed all the evidence in the record. They were only required to record the findings necessary to decide the issues and provide the courts with a basis for judicial review. See Catlin v. Board of Registration of Architects, 414 Mass. 1, 6 (1992). Conclusion. We affirm the judge's denial of the petitioner's motion for judgment on the pleadings, and affirm the SORB's classification decision.
Judgment affirmed.
The hearing examiner's findings on fourteen factors in this case are presented in the board's brief at pages 8–11.