DOE 524250 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal by the plaintiff (Doe) from a judgment of the Superior Court affirming the final decision of the Sex Offender Registry Board (board) classifying the plaintiff as a level two (moderate risk) sex offender. We affirm.

Background. We summarize the facts as set forth in the hearing examiner's decision, “supplemented by undisputed facts from the record.” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).

a. Governing sex offense. In 2016, Doe was convicted of one count of indecent assault and battery on a child under fourteen pursuant to G. L. c. 265, § 13B, committed over the course of eight months between January and August of 2003. At the time of the offense, Doe was forty years old and the victim was twelve.

In 2013, when the victim was twenty-two years old, she reported to the State police that Doe had sexually assaulted her repeatedly over many months in 2003. The victim told police that when her parents were having marital problems, Doe started to pay attention to her. She provided the police with copies of e-mails from 2003 between her and Doe, some of which were sexual in nature. State Police Sergeant Danial Wildgrube described Doe's tone in the e-mails as “somewhat controlling and manipulative.”

Although there was no actual penetration, the victim described one encounter where she laid on top of Doe as they were both fully clothed. Doe rubbed his body and genitals against the victim's body, and she could feel Doe's erect penis. Doe “would hold [the victim's] waist and move [her] hips and body against his while he thrusted.” Doe sometimes laid on top of the victim and rubbed his body against her body. The victim said that they were always fully clothed during the assaults and that she could feel Doe's penis against her vagina. The victim testified at trial that Doe sexually assaulted her in this way every day they were together over a period of eight months, beginning around January 2003. On one occasion, Doe showed the victim his penis, and, on another occasion, Doe kissed the victim on the lips and thrust his tongue into her mouth.

Doe stopped assaulting the victim in August 2003, after the victim's father discovered the e-mails and confronted him. In 2003, the victim was interviewed by the police and maintained the she and Doe had hugged and kissed, but had not had sexual intercourse. She reported the sexual assaults in 2013 because she feared Doe might be a threat to others. The hearing examiner noted the victim's 2003 denials of sexual assault, but found that irrelevant in light of Doe's conviction by a jury of indecent assault and battery on a child under the age of fourteen.

b. Other criminal history. Aside from the governing sex offense conviction, Doe has been convicted of two other criminal offenses.² He was convicted of criminal restraint in 2006 after he allowed a sixteen year old female to reside with him, despite knowing that she had run away from the custody of the Massachusetts Department of Children and Families.

In 2011, in Maine, Doe was convicted of a “domestic violence assault” on his teenage girlfriend. Doe became angry and pushed her onto a table and held her down with his forearm. He also grabbed her by the arm while she was carrying their child. Police observed a small scrape on her neck, which she indicated was the result of his physical attack. Doe stopped assaulting her when she called 911. The hearing examiner gave Doe's criminal history minimal risk elevating weight.

c. Statutory factors. The hearing examiner heavily weighed risk elevating factor 3 (adult offender with a child victim) and factor 7 (extrafamilial relationship between the offender and the victim) in his classification decision. He applied minimal weight to factor 10 (contact with criminal justice system) and factor 11 (violence unrelated to sexual assaults). He applied risk mitigating factor 33, indicating that Doe had a stable home situation and support system, gave minimal weight to factor 34 (materials submitted by the sex offender regarding stability in the community), and minimal weight to factor 30 (advanced age). The hearing examiner also considered factor 38 (victim impact statement).

In consideration of the risk elevating and mitigating factors under the clear and convincing evidence standard,³ the hearing examiner determined that Doe's risk to reoffend is moderate and that the degree of dangerousness posed to the public is such that a public safety interest is served by Internet dissemination and public access to his sex offender registry information.

Discussion. 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 No. 10800, 459 Mass. at 633, citing G. L. c. 30A, § 14 (7) (e), (g). “The appellant bears the burden of showing that one of these conditions has been met.” Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), citing Coe v. Sex Offender Registry Bd., 442 Mass. 250, 258 (2004). Credibility determinations and factual findings are the province of the hearing examiner. See Doe No. 10800, supra at 633, citing Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006) (“hearing examiner has discretion to consider which regulatory factors are applicable and how much weight to give each factor based on evidence at hearing”). Importantly, the hearing examiner has discretion to determine how much weight to ascribe to each factor. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109–110 (2014).

a. Substantial evidence and application of statutory factors. Doe claims that the examiner erred in several ways that cumulatively resulted in an arbitrary and capricious decision not supported by substantial evidence. Specifically, Doe argues that the hearing examiner's classification is not supported by substantial evidence because Doe's “criminal history is without additional sexual convictions” (factor 29), the circumstances of the offense weigh against registration because “the offense is an incest[-]like offense, ․ [as] there was a long-term relationship between [Doe] and the victim” (factor 7), Doe is on probation (factor 28), he “has substantial support in the community and good prospects for employment” (factor 33), and he is of advanced age (factor 30).

“Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6). In reviewing the agency's decision, the court “shall 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) (g). The decision may only be set aside if the court determines that the decision is “unsupported by substantial evidence” or is “[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.” G. L. c. 30A, § 14 (7) (e), (g).

Here, the hearing examiner appropriately applied the relevant risk elevating and risk mitigating factors. The hearing examiner properly applied high-risk factor 3 (adult offender with a child victim) because Doe repeatedly sexually assaulted a twelve year old girl for eight months when Doe was forty years old. While Doe challenges the victim's credibility, the examiner was fully entitled to rely on, and base his findings on, the jury's guilty verdict and the victim's sworn, detailed, and corroborated trial testimony. See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019) (“a hearing examiner may consider subsidiary facts that have been proved by a preponderance of the evidence”); Doe No. 10800, 459 Mass. at 633 (“[i]t is the province of the board, not this court, to weigh the credibility of the witnesses and to resolve any factual disputes”). The Legislature has determined that an adult committing a sexual offense against an extrafamilial child, as here, is “more likely to reoffend over time than other sex offenders․ [S]uch offenders pose a heightened risk to public safety since children normally lack the physical and mental strength to resist an offender, ․ [and] children can be lured into dangerous situations more easily than adults.” Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 764 (2006), quoting 803 Code Mass. Regs. § 1.40(3) (2002). Thus, there was no error.

The hearing examiner applied only minimal weight to factor 10 (contact with the criminal justice system). Doe's behavior between 2003 and 2011 suggests a pattern of criminal misconduct toward teenage girls. We discern no error.

The hearing examiner applied some risk mitigating factors. The examiner, however, applied only “minimal mitigating consideration” for factor 30 (advanced age), explaining that full mitigating weight for this factor is not available under the regulatory language because Doe's victim was a child, and at the time of the classification, Doe had not yet reached the age of sixty years old. The examiner also applied mitigating weight for factor 33 (home situation and support system), and minimal weight for factor 34 (stability in the community), because Doe will reside with his son, and several friends wrote support letters describing Doe as a devoted father, as well as describing Doe as a generous person in the community. Compare Doe No. 10800, 459 Mass. at 635-637 (substantial evidence supported offender's level three classification despite mitigating evidence of lifetime probation, participation in sex offender treatment, and offender lived in a positive and supportive environment).

Doe also argues that the hearing examiner erred in not applying factor 29 (offense-free time in the community) because Doe contends that he had fourteen years of offense-free time in the community after he stopped sexually assaulting the victim in 2003 until the classification hearing. The regulation, however, gives credit for offense-free time after a conviction or after release from custody if a committed sentence is imposed. See 803 Code Mass. Regs. § 1.33(29). At the time of the hearing, Doe was still incarcerated. Moreover, the 2011 domestic assault was a “non-sexual violent offense.” Thus, the hearing examiner did not err in not applying this factor.

Doe argues, and the Commonwealth concedes, that the hearing examiner committed error by failing to apply factor 28 (probation supervision), a mitigating factor under the board's regulations. The examiner should have considered whether to apply factor 28, because Doe will be on supervised probation until June 23, 2020. Nevertheless, the examiner's failure to apply factor 28 did not prejudice Doe's substantial rights because the evidence warranting Doe's classification as a level two offender was overwhelming.

For all of these reasons, the record supports the hearing examiner's determination that Doe currently poses a moderate risk to sexually reoffend, a moderate degree of dangerousness to the public, and that a public safety interest warrants the active dissemination of Doe's registration information. Accordingly, we agree with the hearing examiner's conclusion that clear and convincing evidence supported Doe's level two classification.

b. Internet dissemination. The hearing examiner did not have the benefit of the Supreme Judicial Court's decision in Doe No. 496501, 482 Mass. at 653-657, which held that a finding on the degree of public access to an offender's registration information is a distinct determination that must explicitly be made by the hearing examiner upon clear and convincing evidence. See G. L. c. 6, § 178K (2) (b), (c). Where, as here, the hearing examiner did not make such a finding, “a reviewing court may determine that a remand for explicit findings is not necessary.” Doe No. 496501, 482 Mass. at 657 n.4. Because the outcome of such an inquiry is not in such doubt that a remand on the issue is warranted, we make that determination here.

Upon any remand, the hearing examiner would simply have to ask “whether, in light of the particular risks posed by the particular offender, [active dissemination of] that offender's information might realistically serve to protect [a substantial public safety interest] against the risk of the offender's sexual reoffense.” Doe No. 496501, 482 Mass. at 655. See G. L. c. 6, § 178K (2) (c). We believe that the record dictates that the answer to that question is “yes.” Doe's governing sex offense was towards a child and over a period of many months. His other criminal offenses included violence against another teen and harboring a runaway teenage girl. There is clear and convincing evidence in the record to conclude that the Internet dissemination of Doe's registration information will serve a substantial public safety interest.

Judgment affirmed.

FOOTNOTES

2.   The hearing examiner declined to consider a 2005 allegation against Doe of conduct similar to the governing sex offense with a fifteen year old girl after that teen recanted.

3.   See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 & n.27 (2015) (all sex offender classifications must be established by clear and convincing evidence).