DOE 125770 v. SEX OFFENDER REGISTRY BOARD (2021)

Appeals Court of Massachusetts.

John DOE, Sex Offender Registry Board No. 125770 v. SEX OFFENDER REGISTRY BOARD.

19-P-1808

Decided: February 17, 2021

By the Court (Green, C.J., Kinder & Englander, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge denied Doe's motion for judgment on the pleadings, affirming final classification by the Sex Offender Registry Board (board) of Doe as a level three sex offender. On appeal, Doe argues that the hearing examiner erred in weighing certain factors that she applied, contends the board's level three classification was not supported by substantial evidence, and requests that we remand the case to the hearing examiner to make separate and explicit findings that a public interest is served by Internet publication. Discerning no error and concluding that remand is unnecessary, we affirm.

Standard of review. To support a level three classification, the board must show “by clear and convincing evidence,” 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.” G. L. c. 6, § 178K (2) (c). See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 133-134 (2019) (Doe No. 23656). “We 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, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800). We defer to the board's “experience, technical competence, and specialized knowledge ․, as well as to the discretionary authority conferred upon it” in conducting our review. Id. at 632-633, quoting G. L. c. 30A, § 14 (7). Moreover, we recognize that, in making a classification, “[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) (Doe No. 68549).

Error in weighing evidence. We discern no merit in Doe's contention that the hearing examiner erred when considering Doe's advanced age. Under the applicable regulation, the hearing examiner could only give significant weight to Doe's advanced age as a mitigating factor if Doe was sixty years of age or older at the time of the classification hearing. See 803 Code Mass. Regs. § 1.33(30)(a) (2016). As the hearing examiner noted, “[T]he Board considers advanced age to have a significant mitigating effect when the offender is [fifty] years of age or older or, for those with child victims, when the offender is [sixty] years of age or older.” Given that Doe was fifty-three years old at the time of the hearing and committed sex offenses against a child victim, there was no error in applying minimal weight to this mitigating factor, in accordance with the regulation.

Nor is there any merit to Doe's contention that the hearing examiner erred when she considered the support witnesses’ denial of Doe's sexual offenses as relevant to weighing the mitigating effect of his home situation and support systems. The hearing examiner properly acknowledged the likely effect the support witnesses’ denial would have on their ability to assist in Doe's rehabilitation. See 803 Code Mass. Regs. § 1.33(33)(a) (2016) (“The Board shall give greater mitigating consideration to evidence of a support network that is aware of the offender's sex offense history and provides guidance, supervision, and support of rehabilitation”).

Likewise, the hearing examiner did not err by applying minimal weight to the risk opinion of Doe's expert. Contrary to Doe's contention, “[t]he opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even where the board does not present any contrary expert testimony.” Doe No. 10800, 459 Mass. at 637. The record reflects the hearing examiner's careful consideration of the expert's assessment and analytical evaluation of the factors relied upon by the expert. The hearing examiner considered the factors but, for various reasons, assigned greater or less weight than the expert in reaching her conclusion. Importantly, the hearing examiner placed less emphasis on the instrument for assessing the recidivism risk of sex offenders relied upon by the expert, after careful analysis of the dynamic factors specifically not considered by that instrument. Furthermore, the hearing examiner noted a number of factors the expert failed to consider and certain factual inconsistencies with the expert's assessment. A sex offender “is not entitled to a guarantee that [the board] will reach the same conclusion as his expert; he is entitled only to careful consideration of his expert's testimony.” Doe No. 23656, 483 Mass. at 137. There was no error.

Finally, although the board concedes that the hearing examiner should not have considered whether Doe committed a sex offense in a public place, the error did not prejudice Doe. We note that the hearing examiner ultimately applied less weight to this factor in making the level three classification than she assigned to other factors. In light of the other high risk factors the hearing examiner applied in making the classification, and the fact that she applied less weight to the erroneous finding that Doe committed a sex offense in a public place, we do not believe that Doe's “substantial rights ․ may have been prejudiced.” G. L. c. 30A, § 14 (7). See Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 788 (2008).

Substantial evidence. Reviewing the record that was properly before the hearing examiner, we conclude that Doe's level three classification was supported by substantial evidence. See Doe No. 10800, 459 Mass. at 633. The hearing examiner found that Doe committed sex offenses against a child victim on numerous occasions and, at times, plied the victim with drugs and alcohol. Additionally, Doe's sexual offenses involved a high level of physical contact. These findings were all supported by Doe's convictions for the governing offenses. Moreover, although Doe will be on supervised probation for a significant period of time, the hearing examiner properly considered the default warrant entered against Doe while his case was pending. Finally, as noted above, the hearing examiner properly considered Doe's age, support systems, and expert report in making the classification. That Doe would like us to draw a different conclusion is irrelevant. See Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015), quoting Doe No. 68549, 470 Mass. at 110 (“Our review of a hearing examiner's decision ‘does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, ․ but only whether a contrary conclusion is not merely a possible but a necessary inference’ ”). The regulatory factors considered by the hearing examiner were supported by substantial evidence and we defer to the hearing examiner's discretion in weighing and applying these factors. See Doe No. 68549, supra at 109-110.

Internet dissemination. The board issued its decision before the Supreme Judicial Court's decision in Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019), which held that hearing examiners are required to make “separate” and “explicit findings” regarding (1) the offender's risk of reoffense; (2) the offender's degree of dangerousness posed to the public; and (3) that “a public safety interest is served by Internet publication of the offender's registry information.” Id. at 656-657. Importantly, however, the court held that the requirement applied “prospectively only” and granted the appellate court discretion to remand the decision to the hearing examiner. Id. at 657. The serious nature of Doe's sex offenses, which are substantially supported by the record, demonstrate that a level three classification was appropriate and that the public interest would be served by Internet publication; it is, therefore, unnecessary to remand for explicit findings. See id. at 657 n.4.

Judgment affirmed.