DOE 94637 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff (Doe) appeals from a Superior Court judgment upholding his classification as a level three sex offender. Doe raises three arguments on appeal: (1) that the hearing examiner abused his discretion by failing to give appropriate weight to Doe's sex offense-free time in the community; (2) that the examiner improperly ignored a 2015 diagnostic test, and instead considered a 2014 test that showed Doe with a higher risk of recidivism and dangerousness; and (3) that the evidence was insufficient to support his level three classification. We affirm.

Background. Doe was required to register as a sex offender after pleading guilty to one count of rape on May 12, 2008.² During the plea colloquy, Doe admitted that on several occasions he watched his neighbor (victim) changing her clothes from his bedroom window, including on the night before the rape.³ On January 13, 1995, sometime around 5:30 a.m., Doe secretly entered his neighbor's home while she was getting ready for work, and while her two children were asleep in their bedrooms.⁴ Doe confronted the victim in her bedroom, grabbed her, and placed a blindfold over her eyes. Doe forced her onto the bed and raped her twice. Before leaving Doe stated to the victim, “[Y]ou won't tell anybody now, will you [victim]?” and used her name.

Doe lived in the house directly behind the victim and was initially a suspect in the rape. He was interviewed by the police in 1995, but denied any involvement. Doe was not positively identified as the assailant for seven years.⁵ He was finally arrested for the rape on July 20, 2002.

Between the 1995 rape and Doe's eventual arrest in 2002, Doe was not convicted of any sex crimes and so far as appears in the record, he was not suspected of any additional sex crimes. However, Doe had an extensive history of violence and criminality during that time period. Doe had five restraining orders issued against him between 1995 and 1998, from three different women. He was convicted of violating those orders twice in 1998. Doe also was convicted of threatening to commit murder in 1998, and of assault and battery in 1996 and 1998, including one assault with a dangerous weapon (mop handle).

Doe was incarcerated for the rape in 2002, and he remained incarcerated until his release in 2016. Since his incarceration in 2002 Doe has made commendable progress. While incarcerated Doe completed a significant number of sex offender treatment programs and participated in Alcoholics Anonymous/Narcotics Anonymous as well. Program leaders stated that Doe was an active participant in group discussion, was receptive to feedback from others, and “appeared intrinsically motivated and has approached treatment in a thoughtful manner.” Doe has also demonstrated that he possesses a strong family support system. Doe has a daughter who was nine years old when he was incarcerated, and twenty-three at the time of his hearing. He also has a wife, from a marriage in 2001. Doe's wife and daughter both stated that he has their utmost support, and both have worked with his treatment provider to develop plans to avoid future sexual assaults.

In October 2015, while still incarcerated, Doe was given a preliminary level three classification. Doe challenged the Sex Offender Registry Board's (board) recommendation and a de novo hearing was conducted on April 5, 2016. Shortly thereafter the hearing examiner issued a decision finding clear and convincing evidence to support Doe's level three classification. The examiner found evidence to support eight risk-elevating factors and gave full or partial weight to three risk-mitigating factors. A Superior Court judge affirmed the board's decision. Doe appeals.

Discussion. On appeal Doe raises three arguments seeking to overturn his level three classification. This court will only disturb the examiner's decision if it is not supported by substantial evidence, is arbitrary and capricious, an abuse of discretion, or not in accordance with law. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). Doe has not met his burden to show that he is entitled to relief.

1. Offense-free time in the community. Doe first argues that it was arbitrary and capricious, and an abuse of discretion, for the hearing examiner not to give Doe credit for seven years of sex offense-free time between the 1995 rape and his eventual arrest in 2002. Doe argues that based on this evidence the examiner should have applied Factor 29 (offense-free time in the community), and that doing so would have lowered his classification level. This argument is without merit.

First, Factor 29 by its terms does not apply here. That factor states that an offender's risk of recidivism decreases the longer he is in the “community without committing any new sex offense or non-sexual violent offense[,]” and that most offenders see a risk decrease after being offense-free for five to ten years. 803 Code Mass. Regs. § 1.33(29)(a) (2016). It further states that “the offense-free time begins on the date of an offender's most recent release from custody for a sex offense or non-sexual violent offense.” 803 Code Mass. Regs. § 1.33(29)(a). Doe was released from prison for his rape conviction in 2016. Accordingly, under the plain language of the regulation he would not receive credit for sex offense-free time from 1995 to 2002, as that period precedes his “most recent release.” Moreover, even if we indulged in the assumption that Doe could receive credit for “time in the community” starting after he committed the rape in 1995, Doe's record of violent offenses between 1995 and 2002 (for some of which he was incarcerated) still would preclude application of Factor 29. There was no abuse of discretion. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006).⁶

2. The STABLE-2007 risk assessment. Doe next contends that the examiner's decision was arbitrary and capricious because it failed to account for his “current actuarial risk assessment.” Doe argues that the examiner relied on a STABLE-2007 ⁷ risk assessment score from 2014, but ignored a 2015 STABLE-2007 score that showed a significant reduction in several risk areas.

Doe is correct that his 2015 STABLE-2007 risk score improved over his 2014 score, but otherwise this argument carries little weight. Before the hearing examiner, Doe barely mentioned the 2015 score, alluding to it in a single ambiguous sentence of oral argument. He did not mention the point at all on appeal to the Superior Court. The argument was accordingly waived. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320 (2015). And passing the waiver point, we note that the examiner's decision does not actually discuss either the 2014 score or the 2015 score. Both documents were available to the examiner in the record. We will not conclude that the hearing examiner's decision was arbitrary or capricious merely because he did not expressly address a document in the record, where the petitioner himself did not explain the document's purported significance. See Attorney Gen. v. Commissioner of Ins., 450 Mass. 311, 322 (2008) (examiner's decision “not to refer ․ to a particular piece of evidence does not imply the failure to consider that evidence”).

3. Level three classification. Finally, Doe challenges the evidentiary basis for his level three classification. The level three classification must be based in the first instance upon clear and convincing evidence that (1) Doe has a high risk of reoffending, and that (2) Doe has a high level of dangerousness. See Doe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 386 (2013); G. L. c. 6, § 178K (2) (c). On review we examine the record for substantial evidence to support the examiner's decision -- in other words, evidence that “a reasonable mind might accept as adequate to support” the examiner's conclusion. Doe No. 10800, 459 Mass. at 632. Our review is deferential -- it “does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, ․ but only whether a contrary conclusion is not merely a possible but a necessary inference” (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015).

Doe's arguments primarily take aim at the weight the examiner afforded to the evidence. He does not argue that any of the factual findings were clearly erroneous, but rather that the evidence did not establish to a “high degree of probability” that Doe presented a high risk to reoffend and high degree of dangerousness. The thrust of Doe's argument is that the classification decision was based entirely on a twenty year old conviction that he committed when he was twenty-five, and that this evidence was offset by contemporary mitigating evidence. We are not persuaded.

The facts of the rape alone were severe, and supported the application of three aggravating factors. Doe stalked his neighbor, a woman he had not met, for weeks before the rape and admitted that such behavior made him sexually aroused.⁸ Doe entered the victim's home in the early morning while her children were asleep and she was vulnerable. Doe blindfolded the victim, took complete physical control over her, and then raped her twice. It is hard to imagine a more traumatic sexual offense.

Beyond the facts of the rape, there is additional evidence of dangerousness and recidivism in Doe's case. In the years following the crime Doe continued on a course of violence toward women, while he evaded arrest for the rape. Doe incurred multiple restraining orders, convictions, and incarcerations during that time. We do not agree with Doe's contention that his additional record of repeated violence toward women should not be considered as an aggravating factor here. See 803 Code Mass. Regs. § 1.33(15)(a) (2016) (“Factor 15 is applied when an offender has a pervasive pattern of conflicts with women, ․ or has multiple ․ harassment prevention orders taken out by different women at different times”).

To offset this history, Doe relies heavily on mitigating factors, also recognized by the hearing examiner, which include Doe's commendable record in prison, his record in sex offender treatment, his family and community support, and his age (forty-seven).⁹ We do not mean to minimize these mitigating facts, as they are significant. Nevertheless, Doe had not been released from incarceration for the rape at the time of the hearing. Accordingly, he had yet to demonstrate that he could continue on the same path while free in the community.¹⁰ Because Doe has not shown that the examiner abused his discretion or made any erroneous findings, and because there was substantial evidence to support the application of each factor, we are not persuaded that the decision should be disturbed based upon the record presented.¹¹

Judgment affirmed.

FOOTNOTES

2.   Doe was originally convicted of rape in 2004 after a jury trial. That verdict was set aside by the Supreme Judicial Court in 2007 and remanded for a new trial.

3.   Doe also admitted during treatment sessions that he became aroused while watching the victim on the night before the attack, and that this motivated the rape.

4.   The victim's children were age two and four at the time. The victim stated to the police, and testified at trial, that she did not scream or resist Doe for fear that he might hurt the children. No one else was present in the home at the time.

5.   In 2001 Doe was arrested on unrelated charges, and police were able to retrieve a DNA sample from items he used during an interview. The DNA was later matched to a vaginal swab collected after the 1995 rape.

6.   Doe argues that to the extent Factor 29 considers nonviolent sex offenses, it is not consistent with the relevant research. This is in essence a challenge to the regulation itself. Doe did not make such an argument to the hearing examiner or the Superior Court, and it cannot be raised here for the first time. See Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 499-500 (2015).

7.   The STABLE-2007 is a diagnostic tool that is used to predict an offender's risk of sexual reoffense.

8.   There was also evidence that suggested Doe had broken into her home in the weeks prior to the rape and stolen some of her jewelry.

9.   Title 803 Code Mass. Regs. § 1.33(30)(a) (2016) provides that the “risk of reoffense gradually declines when an offender is in his forties,” and that the “[b]oard considers advanced age to have a significant mitigating effect when the offender is 50 years of age or older” for those with adult victims.

10.   To the extent that Doe argues the evidence did not demonstrate that he poses a current risk to reoffend, and risk of dangerousness, we note that the examiner did not rely only on evidence from the 1995 rape, but also considered evidence from the time after the rape until his arrest. That period is the only other time between the rape and the examiner's decision when Doe was free in the community. The examiner also gave significant weight to Doe's more recent efforts at rehabilitation. Accordingly, the decision appropriately considered Doe's current risk. See Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App Ct. 383, 387 (2009).

11.   Any arguments by Doe that we have not discussed “have not been overlooked. We finding nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).