Opinion
14-P-88
08-25-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 327216 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The petitioner, John Doe, appeals from a Superior Court judgment affirming a decision of the Sex Offender Registry Board (board) requiring him to register as a level two sex offender. Doe argues that his prior New Hampshire conviction of indecent exposure is not sufficiently similar to the Massachusetts crime of open and gross lewdness to constitute a "like offense." He also contends that the board violated art. 30 of the Massachusetts Declaration of Rights when it deemed the offense a second and subsequent conviction because, during the criminal prosecution of the index offense, a judge had allowed the prosecutor's motion to remove the second and subsequent offense portion of the complaint. In Doe's view, that action was binding on the board. We affirm, essentially for the reasons well explained in the judge's thoughtful memorandum of decision.
Doe pleaded nolo contendere in New Hampshire in 1990 of the misdemeanor offense of indecent exposure and lewdness, in violation of N.H. Rev. Stat. Ann. § 645:1 (1971). The charge arose from an incident where women workers at a laundromat saw him standing naked and masturbating in front of an unshaded window in his mobile home across the street. In 2011, Doe was found guilty in the Cambridge Division of the District Court Department of one count of open and gross lewdness and one count of breaking and entering, after he entered an adult female neighbor's apartment and exposed his buttocks to her. He initially had been charged with a violation of open and gross lewdness as a second and subsequent offense on the basis of the New Hampshire conviction. The Commonwealth, however, deciding that the New Hampshire conviction was not a "like violation," chose not to proceed with the second and subsequent offense portion of the complaint; the judge struck that charge from the docket.
As in effect at the time of the offense.
In addition to these incidents, which together constituted the index offense, Doe committed several other similar offenses: a 1987 charge of open and gross lewdness for exposing himself at a shopping plaza; a 1989 guilty plea to one count of indecent exposure in violation of G. L. c. 272, § 53; and a 2001 charge of open and gross lewdness for "flashing" a woman sitting in a parked car. The 1987 and 2001 charges for open and gross lewdness were continued without findings.
In November, 2011, Doe was notified that the board initially had classified him as a level two sex offender. He made a timely request for an administrative hearing to challenge the board's recommendation. After an evidentiary hearing on April 17, 2012, the hearing examiner made a final determination, requiring Doe to register as a level two offender. Doe then filed a complaint in the Superior Court for judicial review of the board's final determination; the judge upheld the board's decision. Doe timely appealed and now makes essentially the same arguments he did below.
Discussion. "'Like violation." Doe argues first that his New Hampshire conviction of indecent exposure and lewdness was not of a "like violation" to a Massachusetts offense that would require him to register with the board. "A 'like violation' is a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010). Comparing the definition of the New Hampshire offense with the Massachusetts offense, "the essence of the two crimes [must be] the same." Ibid.
A person convicted of a second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior under G. L. c. 272, § 16, a sex offense, must register with the board. G. L. c. 6, § 178C.
In the State of New Hampshire, a person is guilty of the misdemeanor offense of indecent exposure and lewdness if he or she "fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm." N.H. Rev. Stat. Ann. § 645:1 (1971). In Massachusetts, the crime of open and gross lewdness and lascivious behavior (G. L. c. 272, § 16) "requires proof of five elements to support a conviction, i.e., that the defendant (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so 'as to produce alarm or shock'; (5) thereby actually shocking or alarming one or more persons." Commonwealth v. Swan, 73 Mass. App. Ct. 258, 260-261 (2008), quoting from Commonwealth v. Kessler, 442 Mass. 770, 773 & n.4 (2004).
Here, the essence of the two crimes is the same because both the New Hampshire and the Massachusetts statutes prohibit the intentional exhibition of a person's private parts to cause shock or alarm. See Doe, Sex Offender Registry Bd. No. 151564, supra; Commonwealth v. Becker, 71 Mass. App. Ct. 81, 87 (2008). Any differences in the statutes are "inconsequential because both statutory formulations 'prohibit essentially the same conduct.'" Commonwealth v. Bell, 83 Mass. App. Ct. 82, 87 (2013), quoting from Doe, Sex Offender Registry Bd. No. 151564, supra at 617.
The fact that the Massachusetts crime requires proof of the victim's reaction does not undermine its similarity to the New Hampshire offense for purposes of G. L. c. 6, § 178C. "The elements of the offense in another jurisdiction need not be precisely the same as the elements of a Massachusetts sex offense in order for it to constitute a 'like violation.'. . . [T]he Legislature chose the word 'like' rather than the word 'identical' to describe the required relationship between an offense from another jurisdiction and a Massachusetts sex offense." Doe, Sex Offender Registry Bd. No. 151564, supra at 615-616. Because the offenses here are sufficiently similar, we are satisfied that Doe's indecent exposure conviction in New Hampshire is a "like violation" of the Massachusetts offense of open and gross lewdness and lascivious behavior.
Doe agrees that his rule of lenity argument was not raised below. It is therefore waived.
Board's authority. Doe also argues that the board's decision that Doe's Massachusetts conviction was a second and subsequent conviction violated art. 30 of the Massachusetts Declaration of Rights because the District Court judge earlier had removed the second and subsequent allegation from the complaint on the index offense.
Article 30 "enumerates the constitutional principles of separation of powers among the three branches of government." Commonwealth v. Borders, 73 Mass. App. Ct. 911, 912 (2009).
First, as the hearing officer noted, neither the statute nor the board's regulations require that, in order to require Doe to register, he must be convicted of a second and subsequent offense. Whether the Commonwealth chose to prosecute Doe as a first time offender, prompting the judge to strike the second and subsequent portion of the offense from the docket, is therefore immaterial. The prosecutor's executive powers afford a wide discretion in deciding whether and how to prosecute a particular defendant. The board, in contrast, is duty-bound, by statute and its own regulations, to make a separate determination of whether a person is required to register with the board based on a second and subsequent conviction. See Commonwealth v. Borders, 73 Mass. App. Ct. 911, 912-913 (2009). See also G. L. c. 6, § 178C; 803 Code Mass. Regs. § 1.03 (2004).
In addition, contrary to Doe's argument, the Massachusetts conviction did not address whether the New Hampshire conviction was a "like violation"; instead, it established simply that Doe was convicted of breaking and entering and open and gross lewdness. In light of that fact, the board's determination that the Massachusetts conviction and the New Hampshire conviction were like violations in no way interfered with the judgment of the District Court.
Judgment affirmed.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 25, 2015.