DOE 6159 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Plaintiff Doe appeals from a Superior Court judgment affirming a Sex Offender Registry Board (board) decision to classify him as a level two sex offender. He argues that the hearing examiner erred in rejecting the opinion of his expert that Doe presented a “low risk” of reoffending, and that given his poor health and physical disabilities, Internet publication of his registration information serves no useful public purpose. We affirm.

Background. We summarize the facts found by the hearing examiner, supplemented where necessary with undisputed facts from the record. On October 6, 1997, Doe pleaded guilty to one count of indecent assault and battery upon a child under the age of fourteen, G. L. c. 265, § 13 B, and one count of open and gross lewdness, G. L. c. 272, § 16. The offenses occurred in 1992, when Doe, who was thirty-two years old, was baby-sitting the children of a family friend. Doe and the children would play a game of “Truth or Dare,” and on one occasion, Doe, who suffers from spina bifida and bladder incontinence, showed the children his catheter. On another occasion, Doe modeled a pair of underwear for one of the children, an eleven year old girl. He masturbated and ejaculated in the girl's presence, kissed her on the lips, and attempted to put his tongue in her mouth. On a third occasion, Doe rubbed the girl's buttocks and placed her hand on his penis.

Although Doe has not been accused of committing additional sexual offenses, he has a lengthy criminal history. He self-reported that as a child he set his house on fire in an attempt to kill his father. He was convicted of manslaughter in 1979 after he broke into a home in Billerica and stabbed an elderly woman to death. Doe escaped from prison but was apprehended shortly after doing so. In July 2004, Doe stabbed the owner of a sandwich shop and was convicted of assault and battery by means of a dangerous weapon, armed assault with intent to rob, and armed assault with intent to kill. Doe was confined to a wheelchair during this incident. He also received numerous disciplinary reports while he was incarcerated for various incidents including violating department rules, disobeying orders, lying to staff, attempting to commit indecent exposure, making threats to other inmates and staff, and throwing objects at others.

As noted supra, Doe suffers from spina bifida. He also suffers from numerous physical disabilities as a result of a car accident in 1988. His physical condition has deteriorated over time, and when he appeared before the board in July 2016, at the age of fifty-six, he was confined to a wheel chair.

On October 26, 2015, the board notified Doe that he was required to register as a level three sex offender. Doe challenged the classification level and requested an administrative review. A de novo evidentiary hearing was held on July 12, 2016. The hearing examiner found a number of risk-elevating factors under 803 Code Mass. Regs. § 1.33 (2013) to be applicable, including factor 2, repetitive and compulsive behavior; factor 3, adult offender with child victim; factor 7, extra-familial relationship between offender and victim; factor 10, contact with the criminal justice system; factor 11, violence unrelated to sexual assaults; factor 12, behavior while incarcerated; factor 13, noncompliance with community supervision; and factor 16, pubic place of index offense. The hearing examiner also considered the following mitigating factors: factor 30, advanced age; factor 31, physical condition; factor 33, home situation and support system; factor 43, materials submitted by Doe regarding stability in the community; factor 35, psychological or psychiatric profile; and factor 37, other useful information, i.e., an article submitted by Doe regarding recidivism by sexual offenders. Ultimately, the hearing examiner found that Doe continues to present a moderate risk to reoffend, and a moderate degree of dangerousness. He further concluded that the applicable risk elevating factors “warrant[ ] dissemination of his personal information.”

In reaching his conclusion, the hearing examiner rejected as not credible the testimony of Doe's expert, Dr. Joseph Plaud, a clinical forensic psychologist. Dr. Plaud interviewed Doe and administered two actuarial assessments, the Static-99R and the Sexual Violence Risk-20. He opined that, based on the results of these two actuarial tools, Doe presented a “very low[,] level one type risk” of sexual recidivism. Dr. Plaud considered Doe's age, the nature of the offense, which he described as “a one-time, one-day offense,” the nonsexual nature of Doe's other crimes, the absence of any diagnosed paraphilia, and Doe's physical limitations to be significant.

Doe then sought judicial review of the board's decision in the Superior Court, and filed a motion for judgment on the pleadings. The board cross-moved for judgment on the pleadings. The judge affirmed the board's decision, denied Doe's motion, and granted the board's motion.

Discussion. 1. Standard of review. “We review a judge's consideration of an agency decision de novo.” Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019). Our review of the board's decision is limited, and we will not disturb the board's classification unless “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). In reviewing the board's decision, “we give due weight to [its] experience, technical competence, and specialized knowledge.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019) (Doe No. 496501), quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex offender Registry Bd., 466 Mass. 594, 602 (2013).

Doe's primary argument is that, in light of Dr. Plaud's testimony, the decision to classify him as a level two offender is not supported by clear and convincing evidence. Doe also contends that the hearing examiner did not adequately explain his reasons for not accepting Dr. Plaud's opinion.

“Credibility determinations and factual disputes are the province of the board or hearing examiner that heard the evidence.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 138 (2019) (Doe No. 23656). Contrary to Doe's assertion, the hearing examiner carefully considered Dr. Plaud's opinion and rejected it on at least two grounds. First, Dr. Plaud's information regarding Doe's sex offenses was incorrect. As the hearing examiner noted, Dr. Plaud erroneously believed that Doe had sexually offended on one occasion when, in fact, the victim reported that Doe had committed more than one sexual offense. See id. (hearing examiner was entitled to consider evidence that seemed to call into doubt expert's credibility and thoroughness of his evaluation). Second, the hearing examiner was required to consider the applicable statutory and regulatory factors whereas Dr. Plaud had no such obligation and did not do so. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 777 (2006) (“Although there may be other possible methodologies used to determine the risk of reoffense ․, the Legislature mandated the board to designate and implement a specific, detailed methodology to be used in deciding offender classifications”). Here, the final classification conformed to the regulations and guidelines properly promulgated by the board. See Doe No. 23656, supra at 137-138 (“Doe is not entitled to a guarantee that [the board] will reach the same conclusion as his expert; he is entitled only to careful consideration of his expert's testimony”). Accordingly, we conclude that the classification was supported by clear and convincing evidence, and that the decision to disregard Dr. Plaud's risk assessment was based on proper considerations.

3. Internet publication. Doe argues that his sex offender registration information should not be included in the board's Internet database because the hearing examiner failed to make a specific finding that he posed a danger to the public. He further argues that Internet publication of his information is not warranted in light of his current health conditions and physical limitations, including the fact that he is confined to a wheelchair.²

The board's decision was issued prior to the Supreme Judicial Court's decision in Doe No. 496501. In that case, the Supreme Judicial Court held, in relevant part, that a hearing examiner must explicitly determine by clear and convincing evidence that a public safety interest is served by Internet publication of the sex offender's registration. 482 Mass. at 656. However, the court has since noted that where “ ‘the underlying facts of the case ․ so clearly dictate the appropriate classification level,’ [the court] [does] not exercise [its] discretion to remand ․ on this element.” Doe No. 23656, 483 Mass. at 145, quoting Doe No. 496501, supra at 657 n.4. Here, as in that case, although the hearing examiner did not make separate and explicit findings that the public availability of Doe's personal information would serve the public interest, we conclude that the facts of the case so clearly support the classification level that we do not exercise our discretion to remand for further findings. The hearing examiner found that Doe committed multiple separate sexual offenses against a prepubescent girl, who was not a member of his family. In addition, there was abundant evidence of Doe's numerous nonsexual crimes. Moreover, Doe's physical disabilities did not deter him from engaging in criminal activity. In one instance, Doe committed a serious violent offense (a stabbing) when he was confined to a wheel chair. Accordingly, publication of Doe's personal information would serve the interest of public safety.

Judgment affirmed.

FOOTNOTES

2.   Doe also argues that he was prejudiced by the board's failure to classify him prior to July 13, 2013, the date on which Internet dissemination was first required for level two offenders. In the absence of any claim of bad faith on the part of the board, this claim is unavailing.