Opinion
20-P-380
01-21-2022
K.M. v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2011, the plaintiff was convicted of one count of open and gross lewdness, see G. L. c. 272, § 16. In 2013, the plaintiff was convicted of one count of open and gross lewdness, subsequent offense. See id.; G. L. c. 6, § 178C. As a result, in 2014 the Sex Offender Registry Board (board) classified him as a level two sex offender. The plaintiff was subsequently convicted of two counts of open and gross lewdness, subsequent offense, and of individual counts of annoying and accosting a person, see G. L. c. 272, § 53, and distribution of obscene materials, see G. L. c. 272, § 29. As a result, on April 9, 2018, the board notified the plaintiff of its intent to reclassify him as a level three sex offender.
The plaintiff requested a hearing to challenge the board's reclassification recommendation and, after a de novo reclassification hearing, the hearing examiner issued a written decision reclassifying the plaintiff as level three sex offender. The plaintiff sought judicial review of that decision, which was affirmed by a judge of the Superior Court. The plaintiff now appeals.
Background. The evidence before the hearing examiner revealed the following with respect to the defendant's history of sexual offenses: The plaintiff's first conviction of open and gross lewdness was a result of an incident on September 24, 2010, when a woman told police that she and her son were in their backyard when she heard a "hissing" sound coming from the adjoining yard. She looked up and saw the plaintiff clutching his erect penis and staring at her. At the time of this incident, the plaintiff was on probation for breaking and entering in the nighttime with intent to commit a felony, see G. L. c. 266, § 16, and possession of burglarious tools, see G. L. c. 266, § 49. The defendant pleaded guilty to one count of open and gross lewdness, and received a ninety-day sentence of incarceration to run concurrently with sentences on violations of the probation that he was then serving.
The plaintiff's first subsequent conviction of open and gross lewdness arose from an incident in 2012, in which the plaintiff, while driving a car, followed a college student around her campus. The plaintiff stopped the car in front of her and rolled down the window. The woman could see that the plaintiff had pulled his pants down and was masturbating. The defendant received a two-year committed sentence after pleading guilty to this charge, with eighteen months to serve and the balance suspended for six years.
After the board's final classification of the plaintiff as a level two sex offender, in March 2014, the plaintiff once again exposed himself to a female college student. As the woman walked on the track at her college, the plaintiff approached her and pulled down his pants, exposed his penis and "was playing with" it. The plaintiff struggled with police officers who confronted him, and they ultimately had to pepper spray him. After the plaintiff's arrest, the police found that he had brass knuckles in his pocket. In 2015 he pleaded guilty as a result of these events not only to a charge of open and gross lewdness, subsequent offense, but also to resisting arrest, see G. L. c. 268, § 32B, and carrying a dangerous weapon, see G. L. c. 269, § 10 (b ). He was sentenced to two years’ incarceration on the conviction of open and gross lewdness, two and one-half years’ incarceration on the resisting arrest conviction, and a five-year probation term on the carrying a dangerous weapon conviction. At the time of his latest offenses, he remained on probation on the carrying a dangerous weapon conviction.
As to his latest offenses, on March 8, 2017 a woman entered the elevator in her apartment building. The plaintiff was already in the elevator. After they each pushed a floor button and the doors closed, the woman observed the plaintiff openly masturbating. During the same week another woman in the same apartment building reported to police that she was in fear after receiving on her cell phone, from an unknown number, six photographs of a penis, thirty-six sexually explicit texts, and a video of a man's hand turning the doorknob to her own apartment, attempting to enter. The police recognized the tattoos on the penis and hand in the photographs as belonging to the plaintiff. The plaintiff's girlfriend corroborated this identification.
As a result of these events, as indicated at the outset, the defendant pleaded guilty not only once again to open and gross lewdness, subsequent offense, but also to distribution of obscene matter, and to annoying and accosting a person of the opposite sex in violation of G. L. c. 272, § 53. His probation on the 2014 carrying a dangerous weapon conviction was revoked, and he was ordered to serve the balance of his suspended sentence of two and one-half years, as well as receiving a two-year sentence on the open and gross lewdness subsequent offense conviction, a two and one-half year sentence on the distribution of obscene matter conviction, and a three-year probation term on the annoying and accosting a person conviction.
In addition to this history, the hearing examiner considered evidence that as a juvenile, the plaintiff had been charged with assault, carrying a dangerous weapon to school, assault and battery by means of a dangerous weapon, and larceny of a motor vehicle. As an adult he was also convicted and placed on probation for breaking and entering in the nighttime with intent to commit a felony, and possession of burglarious tools, the charges for which he was on probation when he was convicted the first time of open and gross lewdness. Subsequent to his initial conviction for open and gross lewdness in 2011, the plaintiff was also convicted of assault and battery by means of a dangerous weapon ( G. L. c. 265, § 15A ), and negligent operation of a motor vehicle ( G. L. c. 90, § 24 [2] [a ]). According to a police officer present at the scene, the plaintiff attempted to leave the scene where his motor vehicle had been pulled over for a marked lanes violation by accelerating and cutting the wheel directly toward a police officer, striking him. The police report indicated at the time of that incident the plaintiff did not have a valid driver's license. Finally, in 2013, he was convicted of carrying a loaded firearm.
The hearing examiner also had evidence that in 2012, the mother of the plaintiff's son obtained an abuse prevention order against him. According to her affidavit, the plaintiff broke the door to her house and threatened to assault her. Records show that the plaintiff while incarcerated began sex offender treatment at the Stony Brook Stabilization and Treatment Center but that he was "terminated from the group indefinitely due to his sharing information learned in the sessions and putting other inmates’ safety in jeopardy."
Discussion. 1. Standard of review. A reviewing court may set aside or modify the board's classification decision where it determines that the decision is in excess of the board's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence. See G. L. c. 30A, § 14 (7). In reviewing the board's decision, we "give due weight to the experience, technical competence, and specialized knowledge of the agency." Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7).
The plaintiff argues first that the hearing examiner failed to engage in a qualitative analysis whether his behavior was repetitive and compulsive. We see no error. As the examiner noted, the plaintiff was undeterred by his prior convictions and jail commitments, continuing to commit sexual offenses even while on probation for other offenses.
The plaintiff also argues that the hearing examiner improperly considered a Springfield police department report about other women reporting "a lone Hispanic male exposing himself and masturbating to female students over the last few days." But, as the examiner made clear explicitly in her decision, she mentioned those allegations only to note that she would not consider them in her analysis.
The plaintiff next argues that the hearing examiner erred in applying factor 10, "Contact with the Criminal Justice System," 803 Code Mass. Regs. § 1.33(10) (2016), due to her reliance on juvenile offenses that had no sexual component and led to no convictions. The hearing examiner, however, noted that all of these charges were nolle prossed or continued without a finding, and the plaintiff points to no authority that disallows the hearing examiner from considering these charges in assessing his contact with the criminal justice system. Given the repetitive nature of the plaintiff's conduct we also disagree with the plaintiff's contention that offenses as far back as 2010 are too remote in time to have probative value.
In applying factor 11, "Violence Unrelated to Sexual Assaults," 803 Code Mass. Regs. § 1.33(11) (2016), the hearing examiner relied on the incident with the automobile described above in which the police officer was struck with the car on his hip "pushing the police officer into the street." The plaintiff here asserts that the examiner's statement that "the potential harm to the officer was life threatening," demonstrates unfairness. We disagree.
Finally, the plaintiff argues that the hearing examiner erred in applying factor 24, "Less Than Satisfactory Participation in Sex Offender Treatment." 803 Code Mass. Regs. An "Incident Report Form" states that when a fellow participant in the treatment program was assaulted by other inmates, that participant told investigators he believed he was targeted because the plaintiff had shared details about the participant's sex crimes with the inmates who attacked him. The plaintiff was consequently terminated from the treatment program indefinitely due to his sharing information and putting other inmates’ safety in jeopardy. The plaintiff argues that the report was not the result of significant investigation, but even if that is true, the plaintiff did not satisfactorily complete sex offender treatment.
Lastly, the theme of the plaintiff's brief more broadly is that the hearing examiner was unfair, but we see no evidence of unfairness in the hearing examiner's decision. The plaintiff notes correctly that he has committed only noncontact sexual offenses and asserts that the examiner failed to give sufficient weight to the absence of contact offenses. Of course, where an individual has committed only noncontact sexual offenses and the offenses "do not put a victim in fear of bodily harm by reason of a contact sex offense," a sex offender may not be classified higher than a level one. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 660 (2019).
However, the plaintiff's most recent sex offenses, one taking place in the enclosed space of an elevator, another involving conduct that could reasonably be taken as a threat to enter the apartment of the victim, permit the plaintiff to be classified consistent with Doe No. 496501 , 482 Mass. at 660, at a higher level than level one. Given our standard of review and the deference owed the hearing examiner, we find that there was substantial evidence supporting the hearing examiner's decision, that the decision was not in excess of her statutory authority or jurisdiction, that it did not violate the constitution, and was not based on an error of law. The substantial evidence supporting the examiner's application of the different risk factors, as well as the plaintiff's history of violent nonsexual conduct, and the apparent escalation of the seriousness of his sexual offending, provide sufficient basis for this conclusion.
Judgment affirmed.