John WOE, Sex Offender Registry Board No. 352685 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Woe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. We affirm.
Background. Woe met the victim by telephone in 2007, when he was seventeen and she was thirteen. They regularly communicated via the Internet and telephone. In August of 2009, Woe visited the victim in the apartment where she was staying. She was approximately fifteen years of age. Woe touched the victim's thigh and told her that she would “do what he wanted her to do.” She was afraid and thought he would hurt her if she did not comply. She did as asked and fellated him. He removed her clothing and bit her breasts. He inserted his fingers and then his fist into her vagina, causing her pain. He bit her inner thigh and vagina, causing her to bleed. He bit her breasts again, causing significant pain. Woe proceeded to penetrate the victim's vagina with his penis and then forced his penis into her mouth and forcefully rocked her head back and forth, making the victim feel like she was choking, until he ejaculated. In November 2011, Woe pleaded guilty to three counts of rape and abuse of a child and two counts of indecent assault and battery on a person over fourteen. Woe received a two to three-year prison sentence, with 145 days served, and a five-year probation sentence from and after his release. In January 2018, a SORB hearing examiner classified Woe as a level three sex offender.
Hearing examiner's decision. The hearing examiner considered both risk-aggravating and risk-mitigating factors in concluding that Woe posed a high risk to reoffend and should therefore be required to register as a level three sex offender.
a. High-risk factors. The hearing examiner determined that one of the six statutory high-risk factors applied to Woe, factor 3 (adult offender with child victim), giving full aggravating weight to this factor. At the time of the offense, Woe was nineteen and the victim was fifteen. Although they were fewer than five years apart in age, the sexual contact was not consensual. See 803 Code Mass. Regs. § 1.33(3) (2018).
b. Risk-elevating factors. The hearing examiner gave full aggravating weight to factor 8 (infliction of bodily injury), because Woe left bruises and bite marks on the victim; factor 10 (contact with criminal justice system), because Woe has a criminal history with multiple convictions and ten restraining orders; factor 11 (violence unrelated to sexual assaults), because Woe has convictions for nonsexual violent offenses; and factor 19 (level of physical contact), because Woe penetrated the victim multiple times. See 803 Code Mass. Regs. § 1.33. The hearing examiner also gave aggravating weight to factor 7 (relationship between offender and victim), because the victim was extrafamilial; and factor 12 (behavior while incarcerated or civilly committed), because Woe incurred almost two dozen disciplinary reports while incarcerated and was transferred to higher custody. The hearing examiner gave aggravating weight to factor 13 (noncompliance with community supervision), because Woe violated both probation and the electronic monitoring program; and factor 15 (hostility towards women) due to the numerous restraining orders issued against Woe, one of which he was found guilty of violating. See 803 Code Mass. Regs. § 1.33.
c. Risk-mitigating factors. The hearing examiner next considered risk-mitigating factors, giving tempered weight to factor 28 (supervision by probation or parole) due to Woe's prior violation of probation in 2014. The hearing examiner gave minimal mitigating weight to factor 32 (sex offender treatment) due to Woe's history of suspension from the sexual offender treatment program and lack of progress in that program, and to factor 33 (home situation and support systems), because Woe had not provided evidence to show where he would reside or work upon his release. See 803 Code Mass. Regs. § 1.33.
d. Other evidence. Woe submitted two articles regarding juvenile sexual offense and recidivism. The hearing examiner considered these submissions pursuant to factor 37 but gave them limited consideration. The hearing examiner concluded that the articles about juvenile offenders were not applicable because though Woe was a teen at the time of the offense, he was a legal adult.
Woe offered the testimony of Dr. Angela Johnson as an expert witness. She testified that Woe was not likely to reoffend sexually in the future and should be classified as a low risk offender. Woe also submitted an independent assessment by Dr. Donald Sherak. The hearing examiner did not credit Dr. Johnson's testimony and did not address Dr. Sherak's assessment of Woe.
Discussion. 1. The expert opinions. Woe contends that the hearing examiner abused her discretion by failing to apply any weight to the two expert opinions submitted at the hearing. Woe “is not entitled to a guarantee that SORB will reach the same conclusion as his expert; he is entitled only to careful consideration of his expert's testimony.” Doe, Sex Offender Registry Bd. No. 23656, 483 Mass. 131, 137 (2019) (Doe No. 23656).
Dr. Sherak submitted an evaluation of Woe addressing the reasons for his offenses and his risk of reoffense. The hearing examiner was not required to address Dr. Sherak's evaluation of Woe because the evaluation was not prepared expressly for the plaintiff's board hearing, Dr. Sherak did not testify, and, therefore, was not subject to cross-examination. See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 809-810 (2010). “[W]here the documentation is provided by an ‘[e]xpert [w]itness’ who does not testify at the hearing, the hearing examiner ‘shall exclude from evidence so much of the documentation that expresses any opinion as to the offender's risk to reoffend.’ ” Id. at 809, citing 803 Code Mass. Regs. § 1.18(6) (2004).
Dr. Johnson did testify and opined that Woe was at a low risk to reoffend because she believed that the underlying cause of the offense was his young age at the time of the rapes and untreated bipolar disorder, for which Woe is now receiving treatment. She likened Woe's offense to that of a juvenile offense, opining that his age deserved consideration in the overall assessment of his risk to reoffend.
“[A]n agency must ‘explain[ ] on the record its reasons for rejecting portions of [an expert's] testimony.” Doe No. 23656, 483 Mass. at 136, quoting Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012). The hearing examiner did so here. Specifically, the hearing examiner weighed Dr. Johnson's testimony but found, consistent with SORB regulations, that Doe was an adult at the time of the offense. The hearing examiner also concluded that Dr. Johnson's opinion that Woe's bipolar disorder caused the assault was speculative because despite aging into his mid- to late twenties, Woe continued to exhibit hostility toward women, lawlessness, poor judgment, and boundary issues. Woe therefore received the careful consideration of his expert opinion that was his due. See Doe No. 23656, 483 Mass. at 137.
2. Substantial evidence. Woe contends that the hearing examiner's decision was not supported by substantial evidence pursuant to G. L. c. 30A, § 14. Woe also contends that the hearing examiner erred in the weight she assigned to factor 3 in reaching her conclusion. The substantial evidence standard requires that the offender classification be established by clear and convincing evidence. See Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). Review “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.’ ” Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015), quoting Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014) (Doe No. 68549).
“A hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor.” Doe No. 68549, 470 Mass. at 109-110. “[A] reviewing court is required to ‘give due weight to [the examiner's] experience, technical competence, and specialized knowledge.’ ” Id. at 110, quoting G. L. c. 30A, § 14 (7).
As discussed above, the hearing examiner applied one high-risk factor and seven risk-elevating factors. She also considered two risk-mitigating factors. The hearing examiner applied full weight to factor 3 because she found that Woe's sexual contact with a fifteen year old was not consensual. See 803 Code Mass. Regs. § 1.33(3). The hearing examiner was entitled to exercise her discretion to give full weight to this factor. See Doe No. 68549, 470 Mass. at 109-110. As previously discussed, the hearing examiner was also entitled to reject the expert's opinion in applying the high-risk and risk-elevating factors against the mitigating factors to conclude that a level 3 classification was appropriate. See id. Here Woe, then aged nineteen, repeatedly raped a fifteen year old extrafamilial girl. The assault involved a high degree of contact leading to physical harm and involved multiple forms of penetration, including placing his fist inside her vagina. Woe has an ongoing history of violence towards women, nonsexual violent offenses, failures to comply with probation, and problematic behavior in prison. The hearing examiner's conclusion is therefore supported by substantial evidence.
3. Internet dissemination. Woe contends that remand is necessary for the hearing examiner to make explicit findings regarding public access to his registry information. See 803 Code Mass. Regs. § 1.20(2). Woe's hearing was conducted prior to the requirement that hearing examiners make explicit findings on “whether and to what degree public access to the offender's personal and sex offender information ․ is in the interest of public safety.” 801 Code Mass. Regs. § 1.20(2)(c). See Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019) (Doe No. 496501). We have the discretion whether to remand for such findings. See Doe No. 496501, supra at 657.
We are satisfied that “the underlying facts of the case ․ so clearly dictate the appropriate classification level that ․ a remand for explicit findings is not necessary.” Id. at 657 n.4. Woe committed multiple contact offenses against the victim, which is significant because “contact offenders are generally more dangerous than noncontact offenders.” Doe No. 496501, 482 Mass. at 659. Those same offenses establish the severity and extent of harm that could occur were he to reoffend. These facts coupled with Woe's history of lawless behavior and his record of ten restraining orders by four woman and one man, show that Internet dissemination will allow the public “to take precautions to avoid encountering [Woe] in situations in which the members of the public are vulnerable” to a sexual offense. Doe No. 23656, 483 Mass. at 145-146.
4. Internet dissemination as a punitive measure. Woe also claims that active public dissemination of his registration information violates his State and Federal constitutional, statutory, and common law rights against double jeopardy, ex post facto laws, cruel and unusual punishment, and infringes upon his State and Federal constitutionally protected rights to family integrity and interest in liberty and privacy. This court has explicitly held that community notification does not constitute a new or additional punishment for purposes of double jeopardy, ex post facto laws, or cruel and unusual punishment, but rather is a “collateral, regulatory measure.” Commonwealth v. Olaf O., 57 Mass. App. Ct. 918, 919 (2003), citing Opinion of the Justices, 423 Mass. 1201, 1224-1228, 1237-1240 (1996). Therefore, the claim is unavailing.
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