DOE 24502 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Jeff Doe,² appeals from a Superior Court judgment affirming, on judicial review under G. L. c. 6, § 178M, and G. L. c. 30A, § 14, the final decision of the Sex Offender Registry Board (board) classifying Doe as a level three sex offender. Doe argues that the board's hearing examiner erred or abused her discretion (1) in failing to give appropriate mitigating weight to multiple regulatory factors; (2) in improperly requesting additional evidence after the board hearing; and (3) in classifying Doe as a level three sex offender without explaining how the board had carried its burden of proof by clear and convincing evidence. We affirm.

Background. Prior to the index offense, Doe had an extensive criminal history that included numerous probation violations and nonsexual violent offenses. The index offense occurred in 1986 when, while on probation, Doe dragged a stranger female victim by the hair and at knifepoint and forced her to perform oral sex on him in a public place. He then vaginally raped her and continued beating her after the sexual assault. Doe was incarcerated for this offense until 2006, when he was released after a hearing in which he was determined not to be a sexually dangerous person.

Within two years, Doe was convicted and incarcerated for aggravated assault and battery, assault and battery by means of a dangerous weapon, and armed robbery. While incarcerated for those crimes, he incurred disciplinary reports for assaultive behavior, possession of a weapon, and introducing or transferring toxicants and alcohol. Doe was released from this most recent incarceration in 2011. He refused to participate in sex offender treatment during both of these incarcerations.

At the time of the classification hearing in 2017,³ Doe was fifty-three years old and had been in the community offense-free for six years. The examiner considered these factors in mitigation, but gave them only “moderate” weight because she found that Doe had committed an assault in 2017. She similarly considered in mitigation the support Doe had from his wife and family members, but gave the factor only “moderate” weight, because none of their letters in support of Doe indicated their awareness of his criminal history, and because even after being married, Doe had violated probation and committed an assault.

Considering the nature of Doe's violent sex offense against a stranger victim in a public place, coupled with his other violent behavior both in prison and in the community, along with other risk aggravating factors that outweighed the mitigating factors, the examiner found “by the clear and convincing standard that [Doe] presents a high risk to reoffend and a high degree of dangerousness.” She also found that “[Doe's] risk and danger posed to the public is such that a substantial public safety interest is served by active dissemination of sex offender registry information.”

Discussion. A level three classification must be based on clear and convincing evidence that Doe's “[1] risk of reoffense is high and [2] the degree of dangerousness posed to the public is such that [3] a substantial public safety interest is served by active dissemination (community notification) of sex offender registry information.” 803 Code Mass. Regs. § 1.03 (2016). See 803 Code Mass. Regs. § 1.20(2) (2016) (hearing examiner shall determine [1] offender's risk of reoffense, [2] offender's degree of dangerousness, and [3] degree to which public access to offender's personal and sex offender information is in interest of public safety). See also Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019). Our review is limited, and “[w]e reverse or modify the board's decision only if we determine that the decision is unsupported by substantial evidence or is arbitrary or 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).

1. Mitigating factors. First, Doe argues that the examiner abused her discretion in failing to give full mitigating weight to three regulatory factors: factor 29 (offense-free time in the community), factor 30 (advanced age), and factor 33 (home situation and support systems). See 803 Code Mass. Regs. § 1.33(29), (30), (33) (2016). “A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109-110 (2014). “Accordingly, our review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the agency], but only whether a contrary conclusion is not merely a possible but a necessary inference” (quotations omitted). Id. at 110.

Regarding factor 29, the examiner was justified in giving it moderate weight, because “[t]he risk of reoffense decreases for most offenders after living in the community offense-free for five to ten years ․ [and] lowers substantially after ten years.” 803 Code Mass. Regs. § 1.33(29) (2016). Doe contends that full weight must be applied because the index offense occurred thirty-two years ago. However, “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” (emphasis added). Id. Thus, it was not an abuse of discretion to calculate Doe's offense-free time beginning from his 2011 release for nonsexual violent offenses, which gave Doe less than the ten years required to “substantially” lower his risk of reoffense. See id.

The examiner's consideration of factor 30 was also reasonable. Although Doe was fifty-three years old at the time of the hearing, we see no error in the examiner's decision to give factor 30 only moderate weight because she found that “[Doe had] continued in general criminality by committing an assault in 2017.” See 803 Code Mass. Regs. § 1.33(30) (2016) (“Factor 30 should be given less weight when an offender continues to demonstrate an active sex drive or general criminality” [emphasis added] ).

Third, it was within the examiner's discretion to give moderate weight to factor 33, because none of Doe's support letters indicated an awareness of his sex offense history. See 803 Code Mass. Regs. § 1.33(33)(a) (2016) (“The [b]oard shall give greater mitigating consideration to evidence of a support network that is aware of the offender's sex offense history”). Doe argues that there was no evidence that the authors of the support letters were unaware of his sex offense, and that this circumstance, when combined with the fact that his sex offense information was already published online where they could have accessed it, should have caused the examiner to conclude that his support network was aware of the offense. We are not persuaded.

It is reasonable for the board to put the burden on the offender to produce evidence that his support network is aware of his sex offense history. See Kasper v. Registrar of Motor Vehicles, 82 Mass. App. Ct. 901, 903 (2012) (“the burden is properly borne by the party who has freer access to the evidence” [quotation omitted] ). Absent such evidence, conflicting inferences could be drawn on the issue, particularly because the letters of support were addressed not to the board but “to whom it may concern.” “A court may not displace an administrative board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo” (citation omitted). Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414, 420 (1982), quoting Labor Relations Comm'n v. University Hosp., Inc., 359 Mass. 516, 521 (1971).

2. Examiner's request for additional evidence. Doe next argues that the examiner erred by requesting additional evidence four months after the hearing. While recognizing that the regulations grant the examiner the power “to request that parties produce additional evidence,” Doe contends they do not permit the examiner to request such evidence after the evidentiary phase of the hearing has closed. 803 Code Mass. Regs. § 1.19(2)(b) (2016). Again, we are not persuaded.

The regulation does not state that the examiner cannot request additional evidence from the parties after the hearing. Thus, she did not abuse her discretion in interpreting the board's own regulations to permit the request. See 803 Code Mass. Regs. § 1.19(2)(b) (2016). “[I]t is in everyone's best interests -- including the best interests of sex offenders themselves -- that the board work from accurate, up to date, and thorough information” (quotation omitted). Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774 (2008).

3. Insufficient evidence by clear and convincing standard. Doe's final argument is that the examiner's decision was not supported by substantial evidence. Specifically, Doe contends that the examiner failed to properly apply the clear and convincing evidence standard and make explicit determinations regarding Doe's current risk to reoffend and his degree of dangerousness. The crux of his claim is that the examiner overemphasized his index offense, which occurred more than thirty years ago.

While many factors under 803 Code Mass. Regs. § 1.33 (2016) involve current conditions, there are also high-risk and risk-elevating factors that require the examiner to consider various characteristics of the offender's past sex offenses. Those risk-elevating factors include factors 7 (relationship between offender and victim), 8 (weapon, violence or infliction of bodily injury), 16 (public place), and 19 (level of physical contact), all of which the examiner here gave full aggravating weight. “Pragmatically, because past is prologue, a hearing examiner would make [the degree of dangerousness] determination based on the sexual crime or crimes that the offender committed in the past.” Doe, Sex Offender Registry Bd. No. 496501, 482 Mass. at 651. Moreover, the examiner also gave weight to multiple risk-elevating factors involving current or more recent conditions.⁴

We see no error in the examiner's application of the regulations and conclude that there was substantial evidence to support her explicit determination that “by the clear and convincing standard ․ [Doe] presents a high risk to reoffend and a high degree of dangerousness.”⁵ Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 144 (2019) (“The hearing examiner's analysis of each factor was meticulous, and indicates the presence of sufficient factors to merit [the examiner's] determination”).

Conclusion. As Doe failed to identify any error or abuse of discretion in the board's decision, we must uphold it.

Judgment affirmed.

FOOTNOTES

2.   A pseudonym.

3.   A previous classification hearing was held in 2011, after which Doe was classified as a level three sex offender. While his action seeking judicial review of that decision was pending in Superior Court, the Supreme Judicial Court ruled that the board was required to apply the clear and convincing evidence standard in making final classification determinations. Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 309-311 (2015). The Superior Court therefore remanded this case to the board for a new de novo hearing pursuant to Doe No. 380316, resulting in the decision Doe now challenges.

4.   These included factors 9 (alcohol and substance abuse), 10 (contact with criminal justice system), 11 (violence unrelated to sexual assaults), 12 (behavior while incarcerated), 13 (noncompliance with community supervision), and 24 (less than satisfactory participation in sex offender treatment).

5.   Although the examiner did not make an explicit determination based on clear and convincing evidence regarding Internet dissemination, Doe makes no argument that a remand is needed on this specific determination.