DOE 524474 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff Doe challenges a decision of the Sex Offender Registry Board (board) classifying him as a level two sex offender. Concluding that his timely and well-supported request for expert funds should have been allowed, we vacate the judgment in favor of the board and remand for a new hearing.

After a jury trial, Doe was convicted of indecent assault and battery on a person over fourteen, in violation of G. L. c. 265, § 13H. On the same date he was also convicted of disorderly conduct, G. L. c. 272, § 53, and open and gross lewdness and lascivious behavior, G. L. c. 272, § 16.

Doe was thirty-six years of age when he committed the index offense. Although he had a long criminal history dating back to his teenage years, this was his first sex offense. The offense took place at a Citgo gasoline station that had a donut shop located inside. The evidence showed, and the hearing examiner found, the following: On March 18, 2016, a female employee of the donut shop was standing outside of the station while on break when Doe approached her and said, “[G]ood morning.” He then advanced towards her and attempted to hug her. As she pushed him away and attempted to get free of him, Doe grabbed her buttocks hard. After this assault, Doe followed her into the station, asking the woman if he could buy something for her and asking other employees what kind of cigarettes she smoked. After being repeatedly told that the woman wanted nothing from him, Doe sat in the gas station parking lot in his motor vehicle. He then exited the vehicle and began to “moon” people and dance in the parking lot. Another female employee called the police, reporting that when she arrived at work she saw Doe exposing his buttocks.

The board initially notified Doe of its recommendation that he be registered as a level two sex offender. He requested a hearing to challenge the board's recommendation. Doe filed a motion pursuant to G. L. c. 6, § 178L (1) (a), seeking funds in the amount of $4,000 for consultation and testimony of an expert witness. The hearing examiner denied this motion, and after a de novo hearing issued a decision classifying Doe as a level two sex offender. Doe sought judicial review of the board's decision, which was affirmed by a judge of the Superior Court. He now appeals.

Doe argues first that the hearing examiner abused his discretion in denying his motion for expert funds. “[I]n moving for expert witness funds, the burden will be on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.” Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). In a 2016 report written prior to Doe's sentencing for his index offense, Dr. Jeffrey Stein, a consulting forensic psychologist and certified qualified examiner for the Department of Correction, indicated that Doe had been previously diagnosed with Cannabis–Induced Psychotic Disorder and suffers from Schizoaffective Disorder. Dr. Stein attributed Doe's impaired judgment and resulting conduct on the day of the governing offense to his “mental illness ․ exacerbated by substance use,” specifically marijuana, rather than a desire for sexual gratification. The hearing examiner made reference to that diagnosis and to Doe's “marijuana-induced mental illness.” He noted that “Dr. Jeff Stein stated in his evaluation to the [c]ourt ․ that ‘marijuana has an unusually pernicious effect on [Doe] in a way that others are not typically impacted (i.e., he becomes manic, with religious delusions and his judgment is particularly impaired).’ ” The hearing examiner also noted that Dr. Imad Khreim, in his mental health evaluation of the plaintiff in 2017, had concluded that “[a]s long as [Doe] stays off cannabis, there should be no reason to believe that he will repeat such behavior.”

In his motion Doe stated, “Dr. Stein further opined that [p]etitioner's conduct in committing his index offense was attributed to his mental illness rather than sexual gratification. ․ None of the SORB factors account for the effect severe mental health issues such as [p]etitioner's have on an offender's risk of re-offense and dangerousness. Consequently, the SORB must grant [p]etitioner the requested funds for an expert and allow him additional time to retain the expert prior to his classification hearing.”

This is not a case where the substance abuse merely loosened Doe's inhibitions to act on a desire for sexual gratification. Rather, Doe claims that the substance abuse in question actually caused psychosis. We think that Doe is correct that the relationship between Cannabis-Induced Psychotic Disorder (and the use of cannabis affecting his mental illness more broadly), which was found by a qualified examiner whose testimony the hearing examiner credited to have caused Doe to offend sexually one time in the manner described, and the risk that he will reoffend sexually, is not “a matter of common knowledge or experience.” Doe No. 89230, 452 Mass. at 775. We think, therefore, that the hearing examiner erred in denying the plaintiff's motion for funds.

As a consequence, the judgment of the Superior Court is vacated, and a new judgment shall enter remanding the case to the board for a new hearing with the provision of funds for an expert witness. In light of this disposition, we need not reach the other arguments raised by Doe.

So ordered.

Vacated