DOE 24358 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from a judgment entered in Superior Court affirming a final decision of the Sex Offender Registry Board (board) classifying the plaintiff as a level three sex offender.² We affirm.

We review the board's decision to determine whether it is supported by substantial evidence.³ See Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) (Doe No. 356011). The board's decision will only be set aside if it is “unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Id., quoting Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006).

Hearsay evidence. The plaintiff asserts that the hearing examiner improperly relied on hearsay evidence to find that the plaintiff committed the 1983 and 2013 sexual offenses. A hearing examiner is not bound by the rules of evidence, and “may admit and give probative effect to that evidence [upon] ‘which reasonable persons are accustomed to rely in the conduct of serious affairs.’ ” Doe No. 356011, 88 Mass. App. Ct. at 76, quoting G. L. c. 30A, § 11 (2). Hearsay evidence bearing sufficient indicia of reliability may be considered. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391).

Here, the Freetown police report and the plaintiff's written statement were sufficiently reliable and properly considered.⁴ Victim 1's mother told Freetown police that on July 21, 1983, she observed semen on Victim 1's underwear. This statement was corroborated by the plaintiff's written statement to police, in which he admitted that on July 21, 1983, while in a dark room with Victim 1, he climbed on top of her, pulled her pants down to her knees, inserted his penis partway into her vagina, and ejaculated.⁵ The plaintiff then pleaded guilty to indecent assault and battery on a child under fourteen, which further corroborated the statements in these documents. See Commonwealth v. Given, 441 Mass. 741, 747-748 (2004) (“The fact of conviction is a powerful independent indicator of the reliability of the statements describing the offense on which the conviction rests”); G. L. c. 265, § 13B.

The Taunton police report and the reports of the Department of Children and Families (DCF) containing Victim 2's SAIN interview statements were also sufficiently reliable and properly considered.⁶ During the SAIN interview, Victim 2 stated that the plaintiff “touches her bum and her private part” with his finger. Victim 2 stated that the plaintiff started abusing her when she was four years old, and most recently abused her on Halloween weekend, 2013, when she slept overnight in his house. Victim 2's statements described acts consistent with the plaintiff's sexual offense against Victim 1, demonstrating indicia of reliability. See Doe No. 523391, 95 Mass. App. Ct. at 89.

The maternal grandmother's testimony further corroborated Victim 2's statements by confirming that the victim slept in the plaintiff's house on Halloween weekend. The maternal grandmother also testified that earlier in 2013, Victim 2 stated that someone touched her “pee pee” in the night when she slept in the plaintiff's house.⁷ Additionally, the plaintiff pleaded guilty to indecent assault and battery on a child under fourteen, and two counts of rape of a child with force, further corroborating the statements within these reports. See Given, 441 Mass. at 747-748; G. L. c. 265, §§ 13B, 22A.

Level three classification. The plaintiff also argues that there was not substantial evidence supporting his level three classification, particularly in light of the risk-mitigating factors present in this case.⁸ “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). A reviewing court is required to “give due weight to the [examiner's] experience, technical competence, and specialized knowledge.” G. L. c. 30A, § 14 (7). Examining the record and findings set forth in the hearing examiner's decision, we conclude there was substantial evidence to support the plaintiff's level three classification by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015); G. L. c. 6, § 178K (2) (c).

The hearing examiner's findings relating to the governing 1983 and 2013 sex offenses, and the plaintiff's correlating criminal convictions, supported the application of three factors “indicative of a high risk of reoffense and degree of dangerousness” and five risk-elevating factors. See 803 Code Mass. Regs. § 1.33 (2016). The plaintiff's sexual offenses were committed against prepubescent children, which indicates the likelihood of the plaintiff having a “deviant sexual interest,” and indicates that the plaintiff poses “an even higher risk of reoffense and degree of dangerousness.” 803 Code Mass. Regs. § 1.33(3)(a) (2016). Additionally, the plaintiff's level of physical contact with Victim 1 further elevates his degree of dangerousness. See 803 Code Mass. Regs. § 1.33(19) (2016).

The hearing examiner thoroughly explained the reasons why she gave either no consideration or minimal consideration to all but one of the risk-mitigating factors in the plaintiff's case. The slight presence of risk-mitigating factors does not hinder the substantial evidence supporting the plaintiff's level three classification.⁹

Judgment affirmed.

FOOTNOTES

2.   The plaintiff's notice of appeal challenges the Superior Court judge's denial of his motion for judgment on the pleadings and dismissal of his action for judicial review of the board's decision, which we treat as an appeal from the judgment of dismissal.

3.   “Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011) (Doe No. 10800), quoting G. L. c. 30A, § 1 (6).

4.   The plaintiff did not argue that the Freetown police report was unreliable in his appeal of the hearing examiner's amended decision, pursuant to G. L. c. 30A, § 14. However, we do not rest on waiver, see Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), because the Freetown police report was properly admitted and considered by the hearing examiner.

5.   The plaintiff's argument that it was improper for the hearing examiner to rely on his statement because it was uncorroborated, and thus inherently unreliable, similarly fails as it was corroborated by the police report and, more significantly, the plaintiff's guilty plea.

6.   The plaintiff did not argue that the DCF reports were inadmissible in his appeal of the hearing examiner's amended decision, pursuant to G. L. c. 30A, § 14. However, we do not reach the issue of waiver, see Carey, 446 Mass. at 285, because the board properly obtained and considered these records in accordance with G. L. c. 6, § 178K (4), (5).

7.   We do not consider the plaintiff's argument regarding the credibility of Victim 2 or the maternal grandmother on appeal, as it is within the province of the hearing examiner, and not a reviewing court, to weigh the credibility of witnesses. See Doe No. 10800, 459 Mass. at 633.

8.   The plaintiff also argues that remand is appropriate because the hearing examiner did not make explicit determinations in accordance with Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019). However, that requirement applies only prospectively, and the question whether to remand is committed to the discretion of the reviewing court. See id. at 657. Here, the hearing examiner's findings are “sufficiently explicit to enable proper review,” so remand is not warranted. Id. at 657 n.4.

9.   There is no merit to the plaintiff's assertion that the hearing examiner failed to give close attention to all the evidence before her. We may presume, in the absence of contrary evidence, that the hearing examiner and the board reviewed all the evidence in the record. The only findings required to be recorded are those necessary to decide the issues and provide the courts with a basis for judicial review. See Catlin v. Board of Registration of Architects, 414 Mass. 1, 6 (1992).