DOE 420408 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, John Doe, appeals from a judgment entered in the Superior Court following the denial of Doe's motion for judgment on the pleadings, in which he challenged the Sex Offender Registry Board (SORB)'s final classification of him as a level two sex offender. Doe pleaded guilty to two counts of indecent assault and battery on a child under the age of fourteen in violation of G. L. c. 265, § 13B, and three counts of indecent assault and battery on a person over the age of fourteen in violation of G. L. c. 265, § 13H. SORB initially recommended that Doe be classified as a level three sex offender. Following a de novo hearing, the hearing examiner ultimately classified Doe a level two sex offender, posing a moderate risk of reoffense and degree of dangerousness.

The hearing examiner found that Doe had sexually assaulted his stepdaughter for several years while he lived with the child and her mother. The abuse began when the child was ten or eleven years old and continued until she was fourteen to fifteen years old. The hearing examiner found that Doe's conduct was repetitive and compulsive (factor 2, 803 Code Mass. Regs. § 1.33[2] [2016]) because he had assaulted the child weekly for several years. The hearing examiner also found that Doe was an adult offender with a child victim (factor 3, 803 Code Mass. Regs. § 1.33[3] [2016]) who was ten to eleven years old when the abuse began.

The hearing examiner found several mitigating factors. Doe had participated in, though had not completed, sex offender treatment and had accepted responsibility for his offending. Doe's age, fifty-four, was given some mitigating weight. The hearing examiner further credited that Doe had remarried and had the support of a female cousin, suggesting some family support in his life, and that Doe reported working as a truck driver for thirty years, suggesting some stability in the community.

The hearing examiner also considered the testimony of Doe's expert witness, Dr. Bard, who concluded that Doe posed a low risk of reoffense. Bard recommended classifying Doe as a low level offender because he had committed an incest offense, had remarried and was not fixated on prepubescent children, was HIV positive, had no criminal history, had participated in some sex offender treatment, was employed with a stable lifestyle, and was fifty-four years old. While agreeing with some of Bard's rationale, the hearing examiner disagreed with Bard's conclusion regarding Doe's risk level.

When reviewing the hearing examiner's decision, the Superior Court judge expressed doubt as to the hearing examiner's finding that Doe was at moderate risk of reoffense. Nonetheless, the judge found the hearing examiner's conclusion to be supported by substantial evidence.

Doe argues first that the Superior Court judge's decision must be vacated because the judge used the incorrect standard of review in affirming the hearing examiner's classification. We need not consider this argument, as “[w]e 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).

The proper standard of review is whether substantial evidence existed to support the hearing examiner's decision that it had been shown by clear and convincing evidence that Doe presents a moderate risk of reoffense and a moderate degree of dangerousness. Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 146 (2019) (“Because we determine that there was substantial evidence to support each element by clear and convincing evidence, we conclude that there was no error in the hearing examiner's classification of Doe as a level two sex offender”). “We 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). In our review, we give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G. L. c. 30A, § 14 (7). “Credibility determinations and factual disputes are the province of the board or hearing examiner that heard the evidence.” Doe No. 23656, supra at 138.

Based on the evidence in the record and the hearing examiner's reasoning, we conclude that the hearing examiner properly applied the clear and convincing evidence standard and that substantial evidence supports the hearing examiner's conclusion.

To begin with, the hearing examiner explicitly found two high risk factors “[b]y clear and convincing evidence presented at the hearing” and in the administrative record: Doe's offending was repetitive and compulsive, and he had sexually abused a child. These factors were supported by the record evidence. Doe admitted to touching his stepdaughter when she was as young as ten or eleven years old. Doe's abuse escalated when she was around fourteen or fifteen. The hearing examiner further noted that Doe was only recently convicted of these offenses in June of 2013; he had lived without reoffending in the community for two years before his classification hearing. This evidence was such that a reasonable mind might accept as adequate to support the conclusion by clear and convincing evidence that Doe presented a moderate risk of reoffense and degree of dangerousness, even considering mitigating factors in Doe's case. See G. L. c. 30A, § 1 (6).

Doe also contends that the hearing examiner's decision was arbitrary and capricious and an abuse of discretion because the hearing examiner erred in his application of SORB's regulatory factors and did not adequately explain his decision to classify Doe as a level two offender in light of mitigating factors. The hearing examiner fully considered the mitigating factors, as well as the aggravating considerations mandated by the applicable regulations. We see no error in the hearing examiner's application or analysis of these factors.

As an initial matter, the hearing examiner found and weighed the appropriate mitigating factors in Doe's case and balanced those factors in his ultimate conclusion. The hearing examiner gave mitigating weight to Doe's age at fifty-four but correctly noted that, under the applicable regulations, SORB does not consider advanced age to have a full mitigating effect on an offender's risk of reoffense until he reaches age sixty if the offender had a child victim. 803 Code Mass. Regs. § 1.33(30) (2016). Doe also received due mitigating consideration based on his familial support from his new wife of only two years and a female cousin who wrote a letter describing her positive relationship with Doe.² The hearing examiner noted that Doe had self-reported stable employment, but that there was no corroborating evidence of such employment. Finally, the hearing examiner gave mitigating weight to Doe's successful but incomplete participation in sex-offender treatment. The hearing examiner explained the factual basis for each factor and its weight in his analysis. In the context of the strong evidence supporting the two high-risk factors present in this case, the hearing examiner's analysis was neither arbitrary nor capricious.

Doe's argument that the hearing examiner abused his discretion in finding that Doe posed a moderate risk of reoffense and degree of dangerousness in light of the record evidence is equally unavailing. While Doe argues that the hearing examiner gave insufficient weight to several mitigating factors, ultimately it is “the hearing examiner [who] has discretion to determine how much weight to ascribe to each factor under consideration[,]” not this court. Doe No. 23656, 483 Mass. at 138-139. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011). We see no abuse of that discretion here.³ The hearing examiner weighed the mitigating factors in his decision but ultimately found that the evidence of Doe's prolonged, regularly occurring, escalating sexual abuse of a child, for which Doe was only recently convicted, clearly and convincingly proved that Doe posed a moderate risk of reoffense and danger.

Doe argues that the hearing examiner completely disregarded Bard's expert testimony without justification and, as a result, classified Doe as a level two offender when he posed a low risk of reoffense. We disagree.

Contrary to Doe's suggestion, the hearing examiner did not disregard but rather considered and declined to adopt the expert's conclusions regarding Doe's risk of reoffense. An agency may reject portions of an expert's testimony and need not “wholly adopt” the expert's conclusions, as long as it explains its objectively adequate reasons for doing so on the record. Doe No. 23656, 483 Mass. at 136-137.

The hearing examiner explained that, while he agreed with “some of the rationale” for Bard's testimony and found “some validity to the positive aspects of this case[,]” he found that Doe's prolonged period of offending weighed more heavily than Bard's opinion would suggest. For example, the hearing examiner found that Doe's offending was repetitive and compulsive, yet Bard testified that he did not find this factor in his own risk analysis because Doe had not been sanctioned during the time he abused his stepdaughter. Finally, Bard had suggested a low-level classification primarily due to Doe's age which, at only fifty-four, would still not justify full mitigating weight under SORB's regulations.⁴ We see no error in the hearing examiner's decision to consider Bard's testimony but depart from his ultimate conclusion.

Finally, Doe notes that the hearing examiner made no explicit and independent determination by clear and convincing evidence that Internet dissemination of Doe's registry information served a public safety interest. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 653-655 (2019). In light of the Supreme Judicial Court's recent decision in Doe No. 496501, we think the prudent course is to remand the case so that the hearing examiner can make that determination in the first instance. We exercise our discretion to do so. See id. at 657. The judgment is therefore vacated, and a new judgment shall enter remanding the case to the hearing examiner for further findings in accordance with this memorandum and order.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   SORB affords greater weight to an offender's support system when there is evidence of a network of people who are aware of the offenses and provide the offender guidance and supervision. 803 Code Mass. Regs. § 1.33(33) (2016). Doe had only been recently married at the time of the hearing, and Doe's cousin's letter did not express her acceptance of Doe's sex offense history or her intention to provide guidance and supervision in support of his rehabilitation.

3.   Doe additionally lists several aggravating factors absent from his case as evidence that he should have been found to pose a low risk of reoffense. The absence of certain high risk and risk elevating factors, however, does not compel a finding of a lower risk of reoffense or degree of dangerousness. See 803 Code Mass. Regs. § 1.33; Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass 779, 788 (2006) (“The inapplicable factors do not count against an offender's risk level as they are not considered or weighed in the classification process”). That Doe represents that he has been offense-free since 2003, when, in fact, he lived in Trinidad from 2004 to 2012 while a warrant was out for his arrest in this case, also does not suggest that Doe should have been found a low risk offender. A review of the docket in Doe's case reveals that a criminal complaint issued in September of 2004 but he failed to appear at arraignment. A warrant was issued for his arrest in November of 2004, by which time Doe had already moved to Trinidad, where he remained until 2012. He was arrested in Florida and was not arraigned until February of 2013. His time in Trinidad was before his convictions and the hearing examiner need not have credited Doe's testimony that he was offense-free during that period.

4.   The hearing examiner made no specific findings about the tests that Bard relied upon in his risk assessment. However, we note that the MATS-1 assessment that Bard used relied extensively on self-reporting from Doe.