Opinion
10-P-1173
11-16-2011
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 25123 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
John Doe, Sex Offender Registry Board No. 25123, appeals from a Superior Court judgment, entered on the pleadings, affirming the decision of the Sex Offender Registry Board (board or SORB) classifying him as a level three sex offender.
The index offense occurred in 1996, when Doe, thirty-six years old at the time, sexually assaulted his eleven year old step-niece. Doe put his tongue in the girl's mouth, touched her breasts over and under her shirt, digitally penetrated her vagina, and attempted to get her to touch his exposed penis. Doe was found guilty of rape, abuse of a child, and assault and battery of a child under the age of fourteen. For these convictions, Doe was sentenced to nine to eleven years in prison and ten years of supervised probation thereafter. While in prison, he engaged in, but did not complete, sex offender treatment, and had four disciplinary infractions. Prior to his release, the district attorney petitioned to have Doe committed as a sexually dangerous person (SDP). Doe's expert and the two independent examiners concluded that Doe was not sexually dangerous, the petition was dismissed, and he was released. Since his release, Doe's probation has been incident-free, and he continues with sex offender treatment.
Other sexual offenses considered by the hearing examiner included an incident in 1990, where he picked up a fifteen year old girl who was an acquaintance, bought her alcohol, and raped her in his car. He pleaded guilty to ancillary offenses of operating to endanger and delivering alcohol to a minor, but the rape of a child charge was nol prossed, apparently because the victim was unwilling to testify. He eventually served six months on these convictions because his probation was revoked. An additional incident occurred in 1993, when Doe entered a fifty-eight year old woman's home through a window, told her several times he was going to 'fuck her,' covered her mouth, and attempted to drag her into the bedroom. Doe was acquitted of the sexual offenses charged and found guilty of assault and battery. He was still on probation for this offense when he committed the index offense in 1996.
At the hearing, Doe introduced letters of support from relatives, a friend, and his treating therapist. He also introduced records from his prior SDP proceeding and one of the experts from that proceeding testified on his behalf. The expert testified that Doe had a low risk of reoffense. The board submitted its classification report with attachments (police reports, probation records, court records, and Department of Correction records) and did not call any witnesses.
Doe argues that the decision was not based on substantial evidence because the hearing examiner rejected his expert's uncontroverted opinion for improper and unsubstantiated reasons. The hearing examiner found the expert's opinion 'interesting,' but discounted it primarily because it was based on the expert's reliance on only one of the three sexual offenses the hearing examiner found were substantiated by credible evidence. In this context, the hearing examiner also found significant Doe's history of poor adjustment to community supervision and incarceration and his conviction of a nonsexual violent crime. Finally, she concluded that the expert's opinion concerned only his risk of reoffense, not his level of dangerousness.
Doe argues that his expert's opinion was not dependent on the number of victims and that the judge's rejection of his opinion on this basis was error. The expert's opinion appears to rely heavily on his assumption that Doe had committed only one sexual offense, a premise contrary to the hearing examiner's finding. For this reason alone, she could properly have discounted the opinion. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 764 (2006); Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011).
Doe also challenges the hearing examiner's reliance on Doe's poor adjustment to community supervision and incarceration as a basis to reject the expert's opinion. He argues, in essence that the judge failed to consider his more recent, successful, adjustment to the community, and that his receipt of four disciplinary infractions over the course of his several years of incarceration are not significant. However, the hearing examiner did note his recent compliance, but in light of his prior history, found his adjustment 'less than satisfactory.'
The regulations require consideration of 'recent' behavior while on probation. See 803 Code Mass. Regs. § 1.40(20) (2002). The hearing officer was relying on Doe's prior probation violations that occurred in 1993 and 1996, resulting in his incarceration for the index offense. However, at the time of the hearing, Doe had been incarcerated for the interval between his conviction for the 1996 offense until shortly before the SORB proceedings began. As a result, he had been released on supervised probation for only eleven months at the time of the hearing.
Doe also challenges the judge's reliance on the defendant's conviction of a violent, nonsexual, offense as a basis to reject the expert's opinion. The nonsexual conviction was for the 1993 assault and battery arising from the same incident relied upon by the hearing examiner as a sexual offense (the incident where he broke in, restrained the woman, and attempted to drag her to the bedroom). Relying on this same incident as both a nonsexual and a sexual offense was error. However, given the numerous other reasons for rejecting the expert's opinion, it was harmless.
Relatedly, Doe also argues that the 1993 incident should not be considered a sexual offense because he was only found guilty of assault and battery. He asserts that the hearing examiner's reliance on hearsay in the police reports concerning that incident was improper when the reliability of the statements was rebutted by the not-guilty verdict. Factor 9, set forth at 803 Code Mass. Regs. § 1.40(9) (2002), delineates the circumstances in which prior criminal history can be considered. Doe has not contended that the hearing examiner could not consider the 1990 incident, but he does argue that the hearing examiner should not have considered the 1993 conviction of assault and battery because Doe was acquitted of the offense of assault with intent to rape and burglary in conjunction with that incident. Pursuant to the regulation, however, an offense may be considered as a 'prior' offense when '(a) . . . a conviction or adjudication for any offense . . . results in the offender serving a period of confinement that exceeds 60 days.' Doe was eventually committed for twelve months in conjunction with this offense, and therefore the hearing examiner was justified in counting it as an offense under Factor 9.
The hearing examiner did not err in considering information from the police report to determine that the offense could be considered a sexual offense. Compare Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007) (narrative in police report is admissible depending on plausibility and consistency of story, degree of detail, motive of narrator, and presence or absence of corroboration). See Covell v. Department of Social Servs., 439 Mass. 766, 786 (2003) (testimony not sufficient to meet criminal standard for conviction does not mean it is unreliable for purposes of substantial evidence test).
Finally, Doe argues that the hearing examiner erroneously gave no consideration to his age (forty-nine) as affecting his risk of reoffense. His expert had testified that because the risk of reoffense begins to decrease at a more precipitous rate after age fifty, Doe's age becomes a moderating factor. The hearing officer briefly noted at one point the expert's opinion regarding the effect of Doe's age, but did not further discuss the factor. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 622-623 (2010) (where substantial evidence of effect of age is presented, it was arbitrary and capricious to refuse to consider it as a factor). Unlike Doe, Sex Offender Registry Bd. No. 151564, supra, however, it does not appear that the hearing officer refused to consider age as a factor nor did she make a determination that the factor was irrelevant. Moreover, in Doe, Sex Offender Registry Bd. No. 151564, the petitioner was sixty-one years old, and the studies submitted established that 'the risk of recidivism is significantly lower for offenders age sixty and over.' Id. at 622. Here, the petitioner was only forty-nine years old.
In sum, the hearing officer's classification decision was supported by substantial evidence.
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),