COE 5481 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1997, John Coe pleaded guilty to two counts of indecent assault and battery on his ten year old foster daughter, and one indecent assault and battery on his eight or nine year old stepgranddaughter. These offenses occurred in 1994 and 1996. After serving terms of probation, Coe was notified by the Sex Offender Registry Board (board) of his obligation to register as a level two (moderate risk) sex offender.² See G. L. c. 6, § 178K (2) (b). Coe requested an evidentiary hearing to challenge the classification, and also asked to be relieved of the duty to register. See G. L. c. 6, § 178K (2) (d). After considering documentary evidence and the testimony of four witnesses, including clinical forensic psychologist Laurie Guidry, a hearing examiner rejected Coe's request that he be relieved of his duty to register. The hearing examiner found by clear and convincing evidence that Coe poses a low risk to reoffend and ordered Coe to register as a level one sex offender. See G. L. c. 6, § 178K (2) (a).

Coe sought judicial review of the hearing examiner's decision pursuant to G. L. c. 30A, § 14. A Superior Court judge denied Coe's motion for judgment on the pleadings, allowed the board's cross motion, and affirmed the level one classification. On appeal, Coe claims that he should have been relieved of any obligation to register because Dr. Guidry testified that Coe presents a “non-cognizable” risk, and the board did not sustain its burden of proving otherwise. We affirm.

Discussion. A person may be relieved of the duty to register if he can show that he does not qualify as a sex offender “or does not pose a risk to reoffend or a danger to the public.” 803 Code Mass. Regs. § 1.29(1) (2016). Here, it is undisputed that Coe's guilty pleas to indecent assault and battery on a child under fourteen years of age, in violation of G. L. c. 265, § 13B, qualify him as a sex offender. See G. L. c. 6, § 178C (defining sex offender and sex offense). The hearing examiner found that there is “a high degree of probability that [Coe] meets the standards specified for the duty to register and to be classified” as a level one sex offender, 803 Code Mass. Regs. § 1.03 (2016) (defining clear and convincing evidence), and therefore Coe should not be relieved of the duty to register, because Coe poses a low risk to reoffend and a low risk to the public. On appeal, we review the administrative record to determine whether the hearing examiner's decision was “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). See G. L. c. 30A, § 14 (7). After our review, we agree with the Superior Court judge that the hearing examiner's decision was supported by substantial evidence, that is, “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6).

In his early fifties, and while under the influence of alcohol, Coe committed multiple contact offenses against two prepubescent girls for whom he was a caretaker. The offenses occurred approximately two years apart. The hearing examiner found that two high-risk factors applied to those governing offenses: factor two (repetitive and compulsive behavior), and factor three (adult offender with child victim). The examiner also found that the risk posed by Coe was elevated by the facts that one of the victims was extrafamilial (factor seven), Coe had a history of alcohol abuse (factor nine), and there were multiple victims (factor twenty-two). See 803 Code Mass. Regs. §§ 1.33 (2016).

The hearing examiner also found that the risk of reoffense was mitigated by the fact that Coe had been offense free for twenty years (factor twenty-nine), his advanced age of seventy-three at time of the hearing (factor thirty), his successful completion of sex offender treatment (factor thirty-two), and his stable home and family life (factor thirty-three). See id. The hearing examiner gave full weight to each of these mitigating factors.

After balancing these risk-aggravating and risk-mitigating factors, the hearing examiner found “by the clear and convincing evidence standard that [Coe] presents a low risk of re-offense and a low degree of dangerousness.” This judgment was based on the examiner's “experience, technical competence, and specialized knowledge,” G. L. c. 30A, § 14 (7), to which we give “due weight” (citation omitted). Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014).

The hearing officer further concluded that the evidence in mitigation was not sufficient to relieve Coe of the duty to register. We discern no abuse of discretion in his balancing of the statutory and regulatory factors. See id. at 109-110 (“A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor”).

We recognize that Coe “presented considerable information suggesting that he is no longer dangerous.” Id. at 104. However, “[o]ur review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as an [examiner], but only whether a contrary conclusion is not merely a possible but a necessary inference” (quotation and citation omitted). Id. at 110. The examiner's decision reflects a “meaningful consideration of [Coe's] claim that he presents no current risk of reoffense or threat to the public,” Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 386 (2009), and “careful consideration” of Dr. Guidry's opinion that Coe's risk is “non-cognizable.” Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019). However, the hearing examiner was not required to accept that opinion. See Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 11 (2014).

While he agreed with many of Dr. Guidry's conclusions, the hearing examiner rejected the doctor's risk assessment for the “objectively adequate” reasons (citation omitted), Doe No. 23656, 483 Mass. at 137, that (1) Dr. Guidry did not utilize the board's regulatory factors, and (2) her understanding of the terms repetitive and compulsive “does not comport with the language” of the statute.³ As the hearing examiner observed, the board's “regulations have the force of law” (quotation and citation omitted), Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), and must be applied as written. See G. L. c. 6, § 178K (1) (board “shall ․ apply the guidelines to assess the risk level of particular offenders”). It was the hearing examiner's sole function and duty to interpret and apply the regulatory factors to the evidence adduced at the hearing. See 803 Code Mass. Regs. § 1.14(1), (4) (2016). Where the examiner's “reasons for reaching a conclusion not shared by [C]oe's expert[ ] were, as described above, supported by the evidence before him,” contrary expert testimony was not required. Doe No. 68549, 470 Mass. at 112.

For all of these reasons, we conclude that the hearing examiner's decision was supported by substantial evidence, and was not arbitrary or capricious or an abuse of discretion.

Judgment affirmed.

FOOTNOTES

2.   In 2004, Coe was classified as a level three sex offender after his attorney failed to timely request a hearing or submit materials on Coe's behalf. In 2016, represented by new counsel, Coe filed a motion with the board to vacate the classification based on a claim of ineffective assistance of counsel in 2004. The motion was allowed, and a new classification hearing was scheduled. In February 2017, Coe was notified of his preliminary level two classification.

3.   Dr. Guidry considers repetitive and compulsive behavior to involve reoffending after being detected and sanctioned, but “[f]actor 2 is applied [under the statute] when a sex offender engages in two or more separate episodes of sexual misconduct.” 803 Code Mass. Regs. § 1.33(2)(a). Additional weight may be given where a person reoffends after being detected and sanctioned, id., but that is not required in order for the factor to apply.