DOE 415324 v. SEX OFFENDER REGISTRY BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level three sex offender. See G. L. c. 6, § 178K (2) (b). We discern no error in the SORB hearing examiner's properly-supported findings that Doe's risk of sexual reoffense and dangerousness were “high,” as the law requires for a level three classification. See G. L. c. 6, § 178K (2) (c). The hearing examiner did not, however, make explicit findings on the need for Internet dissemination of Doe's registry information.² See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656 (2019) (Doe No. 496501). Because we conclude that further findings on this point are required, we vacate the judgment and order that a new judgment enter remanding the case to SORB for findings on the need for Internet publication of Doe's registry information and, if necessary, adjustment to Doe's final classification.³

Background. In 2013, after a jury trial in the Superior Court, Doe was convicted of one count of indecent assault and battery on a child under fourteen years of age. SORB initially classified Doe as a level three sex offender; Doe appealed, and a SORB hearing examiner affirmed that classification. See G. L. c. 6, § 178L (1) (c). Doe sought judicial review in the Superior Court, pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. A judge of that court denied Doe's motion for judgment on the pleadings and affirmed SORB's classification determination. This appeal followed.

Discussion. 1. Sufficiency of evidence. To support a level three sex offender classification, SORB bears the burden of showing, by clear and convincing evidence, see Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), “that the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination [of registration information],” Doe No. 496501, 482 Mass. at 646, quoting G. L. c. 6, § 178K (2) (c). The SORB hearing examiner is required to make express findings as to each of the required elements.⁴ See Doe No. 496501, supra at 656-657.

Doe challenges the hearing examiner's determination on all three of the required elements -- risk of sexual recidivism, dangerousness, and need for Internet dissemination of Doe's registry information. See G. L. c. 6, § 178K (2) (c). Our review is de novo, see Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019), although in reviewing SORB's decisions, “we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ ” Doe No. 496501, 482 Mass. at 649, quoting Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013).

a. Risk of reoffense and dangerousness. We briefly summarize the hearing examiner's findings. Doe, an adult,⁵ repeatedly sexually assaulted his stepdaughter over a period of almost four years, beginning when the child was eight or nine years old. Doe touched the victim's breasts and penetrated the victim's vagina digitally and with his penis. Having done so, “he would tell the [v]ictim not to tell anyone” about his abuse, thus demonstrating his reflection on and appreciation of the wrongfulness of his conduct. Based on these facts, the hearing examiner gave full weight to high-risk factors two and three, and risk-elevating factor nineteen. See G. L. c. 6, § 178K (1) (a) (ii)-(iii); 803 Code Mass. Regs. § 1.33(2)(a), (3)(a) (2016) (“[r]epetitive and compulsive behavior” “high risk” as to reoffense; adult male offending against child victim presents “high risk” of both reoffense and degree of dangerousness; offender's opportunity to reflect on wrongfulness of his conduct required for application of this factor); 803 Code Mass. Regs. § 1.33(19)(a) (2016) (penetration “[r]isk [e]levating” as to danger of reoffense). See also Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014), quoting 803 Code Mass. Regs. § 1.40(9)(c)(7) (2013) (level of physical contact between offender and victim during sex offense “important element” in determining dangerousness).

While released on bail on charges including the index offense, Doe was confronted by the police while sitting in a parked car with an adult woman. He admitted to the police that he had just paid the woman for sex. He was charged with engaging in sexual conduct for a fee; although the charge was later dismissed, the hearing examiner found that Doe had committed that crime. The hearing examiner considered these facts as “other useful information” under factor thirty-seven, and found them “concerning” indicators of reoffense and dangerousness.⁶ See G. L. c. 6, § 178K (1) (i); 803 Code Mass. Regs. § 1.33(37)(a) (2016).

In addition to this recent incident, Doe's past criminal history included some violent offenses, which the hearing examiner considered as risk-elevating factors. See G. L. c. 6, § 178K (1) (b); 803 Code Mass. Regs. § 1.33(10)(a) (2016) (“Lawlessness and antisocial behavior correlate with risk of reoffense and degree of dangerousness”). We note that the hearing examiner properly minimized the weight accorded to this history, given that the offenses were “from many years ago.” See Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 574 (2020) (Doe No. 11204), quoting Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012) (Doe No. 136652) (“hearing examiner's ‘decision must show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex’ ”).

The hearing examiner properly considered that the evidence supported the existence of only a single, intrafamilial victim of Doe's sexual assaults, factors which, in isolation, would be neither risk-elevating nor risk-mitigating. See 803 Code Mass. Regs. § 1.33(7)(a)(1) (2016). The hearing examiner also found, however, that Doe's family members believed Doe to be innocent of the indecent assault and battery of which he was convicted, and concluded that their trust in Doe increased the risk that Doe would have access to additional child victims within the family. See 803 Code Mass. Regs. § 1.33(23)(a) (2016) (“frequent and easy access to potential victims from [offender's] preferred victim pool” increases risk of reoffense). Additionally, relevant to risk-elevating factor twenty-four, the hearing examiner noted that although Doe participated in some sex offender treatment while incarcerated, his motivation was consistently low and he made “little, if any progress” in treatment, and was ultimately terminated from the program.⁷ See 803 Code Mass. Regs. § 1.33(24)(a) (2016) (offenders terminated from sex offender treatment present increased risk of reoffense and degree of dangerousness).

Considering not only the evidence supporting the hearing examiner's determination, but also the evidence in the record that mitigates against it, see Doe No. 11204, 97 Mass. App. Ct. at 574, quoting Doe No. 136652, 81 Mass. App. Ct. at 651, we are satisfied that the evidence presented at the hearing was “such ․ as a reasonable mind might accept as adequate to support [the] conclusion,” Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 498 (2015), quoting G. L. c. 30A, § 1 (6), that Doe's risk of reoffense and degree of dangerousness were both “high.” See Doe No. 496501, 482 Mass. at 651 (offender's past conduct informs SORB's assessment of future risk).

b. Public dissemination of registry information. The hearing examiner's decision predated Doe No. 496501 and its prospective requirement of express findings on the need for Internet dissemination of the registry information for level two and level three sex offenders. See Doe No. 496501, 482 Mass. at 656. While we infer from the hearing examiner's classification determination that she found such dissemination did serve the public interest, see id., it is undisputed that she did not make those specific findings. In the circumstances of this case, we exercise our discretion to remand for further findings on this element. See id. at 657 & n.4.

2. Doe's remaining claims. Doe's remaining challenges were not properly raised before either the hearing examiner or in the Superior Court.⁸ Those arguments are waived, and we do not consider them. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320 (2015), citing Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006) (issue not raised at classification hearing or before Superior Court is waived).

Conclusion. The evidence was sufficient to establish that Doe's risk of sexual reoffense and dangerousness were “high,” as the law requires for a level three classification. However, because we conclude that additional findings are required concerning the need for Internet dissemination of Doe's registry information, we vacate the Superior Court's judgment affirming SORB's level three classification decision and order that a new judgment enter remanding the case to SORB for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   The omission is unsurprising, as this case predated the Supreme Judicial Court's decision in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019), and its requirement that in level two and three classifications, the hearing examiner make an explicit determination by clear and convincing evidence that “a public safety interest is served by Internet publication of the offender's registry information.” Id. at 656.

3.   In doing so, we express no opinion about the need for Internet dissemination in this case.

4.   As we discuss infra, the requirement that the examiner make express findings concerning Internet publication is prospective as it applies to this case. See Doe No. 496501, 482 Mass. at 657.

5.   The hearing examiner found that Doe began assaulting the victim when he was forty-eight years old. Doe was sixty-one years old at the time of the classification hearing.

6.   Neither Doe's challenge to the hearing examiner's determination that Doe's conduct in paying for sex amounted to “sexual misconduct” nor his claim that the hearing examiner erred in concluding that his admission to that conduct demonstrated his failure to comply with community supervision while on release was preserved in the Superior Court. Accordingly, those arguments are waived, and we do not consider them. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313, 320 (2015), citing Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006) (issue not raised at classification hearing or before Superior Court is waived).

7.   We are not persuaded by Doe's argument that his termination was the result of a language barrier, or that the hearing examiner's finding was the result of her failure to give proper consideration to Doe's limited English skills.

8.   On appeal, Doe raised for the first time arguments concerning the validity of his waiver of the therapist-patient privilege as to records, introduced into evidence at the classification hearing, of his participation in sex offender treatment; the hearing examiner's bias in her questions to a witness at the hearing; and the hearing examiner's denial of his motion for funds.