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DOE 388959 v. SEX OFFENDER REGISTRY BOARD (2021)

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Appeals Court of Massachusetts.

John DOE, Sex Offender Registry Board No. 388959 v. SEX OFFENDER REGISTRY BOARD.

20-P-204

Decided: March 19, 2021

By the Court (Milkey, Kinder & Sacks, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2012, John Doe pleaded guilty to multiple indictments alleging that he had sexually abused his daughter when she was between the ages of five and eight. He was sentenced to serve six years in prison followed by ten years of probation. In 2016, Doe was notified by the Sex Offender Registry Board (SORB) of his obligation to register as a level three (high risk) sex offender. G. L. c. 6, § 178K (2) (c). Doe challenged the classification and, after an evidentiary hearing, a SORB hearing examiner found by clear and convincing evidence that Doe posed a moderate risk to reoffend, and ordered Doe to register as a level two sex offender. See G. L. c. 6, § 178K (2) (b).

Doe sought judicial review of the hearing examiner's decision pursuant to G. L. c. 30A, § 14. A Superior Court judge denied Doe's motion for judgment on the pleadings, allowed SORB'S cross motion, and affirmed the level two classification. On appeal, Doe argues that the hearing examiner misapplied several statutory and regulatory risk factors and that the level two classification was not supported by substantial evidence. Doe also argues that the hearing examiner failed to adequately determine how Internet publication of his registration information would serve a public safety interest. We affirm.

Discussion. “A reviewing court may set aside or modify SORB's classification decision where it determines that the decision is in excess of SORB's statutory authority or jurisdiction, violates constitutional provisions, is based on an error of law, or is not supported by substantial evidence.” Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 649 (2019). We “give due weight to [SORB's] experience, technical competence, and specialized knowledge ․ as well as to the discretionary authority conferred upon it.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109 (2014), quoting G. L. c. 30A, § 14 (7).

“[I]n order to classify an individual as a level two sex offender, the hearing examiner is required to make three explicit determinations by clear and convincing evidence: (1) that the risk of reoffense is moderate; (2) that the offender's dangerousness ․ is moderate; and (3) that a public safety interest is served by Internet publication of the offender's registry information.” Doe No. 496501, 482 Mass. at 644. See G. L. c. 6, § 178K (2) (b); 803 Code Mass. Regs. § 1.20 (2) (2016). SORB bears the burden of proof on each issue. 803 Code Mass. Regs. § 1.03 (2016).

1. Risk of reoffense and dangerousness. The governing offenses included Doe's repeated rapes of his daughter over a period of three years beginning when she was five years old and he was twenty-three. The assaults involved force and “aspects of humiliation,” including tying his daughter to the bed and forcing her to swallow his ejaculate.

Doe claims that the hearing examiner erred when she gave full aggravating weight to the risk factor for repetitive and compulsive behavior (factor two) because he was not charged or investigated during the time that he was abusing his daughter. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019) (full aggravating weight to be attributed only when plaintiff offends after investigation or charge). SORB acknowledges that there was no charge or investigation during the period of the governing offenses, but argues that the hearing examiner only decided that factor two was “fully applicable,” rather than giving it full aggravating weight. We agree with SORB that in the hearing examiner's discussion of factor two, she stated simply that Doe “exhibited repetitive and compulsive behavior in assaulting his prepubescent daughter.” Nothing in her decision indicates that she gave full aggravating weight to that factor. But even assuming that she did, there was no prejudice. The hearing examiner properly found that other risk-elevating factors applied to Doe's governing offenses: adult offender with child victim (factor three), extra-vulnerable victim (factor eighteen), and the level of physical contact involved (factor nineteen). See 803 Code Mass. Regs. § 1.33 (2016). The application of each of these risk-elevating factors was supported by the evidence. The hearing examiner also found that the risk posed by Doe was elevated by his histories of alcohol and substance abuse (factor nine), lawlessness and antisocial behavior (factor ten), and violence unrelated to sexual assaults (factor eleven).2 Considered together, these statutory and regulatory risk factors established that Doe posed a moderate risk of dangerousness and reoffense.

Doe also argues that the hearing examiner did not give sufficient weight to certain risk-mitigating factors. We disagree. The hearing examiner gave full mitigating weight to the fact that Doe was on probation as part of his criminal case and would be supervised until 2026 (factor twenty-eight). Doe was also given full mitigating weight for a stable home situation and family support (factor thirty-three). The hearing examiner also considered materials documenting Doe's participation in treatment and programs while incarcerated as they related to his stability in the community (factor thirty-four). 803 Code Mass. Regs. § 1.33. However, she concluded that the mitigating effect of Doe's participation in programs was “temper[ed]” by his “continued minimization of his offense and his self-report of being sexually attracted to prepubescent and pubescent girls.” This finding was supported by the evidence. To the extent that Doe challenges the weight attributed to these factors by the hearing examiner, we discern no abuse of discretion. It was the hearing examiner's province “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.

2. Internet dissemination. In Doe No. 496501, 482 Mass. at 657, a case decided while this appeal was pending, the Supreme Judicial Court ruled that before ordering Internet dissemination of a sex offender's registry information, a hearing examiner must make explicit findings that a public safety interest is served by Internet publication. It is undisputed that those findings were not made in this case. However, the requirement of explicit findings regarding Internet publication was made prospective only. Id. We have the “discretion to determine whether to remand the case for explicit findings,” or instead to conclude 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. Here, the serious nature of Doe's sex offenses, which are substantially supported by the record, demonstrate that a level two classification is appropriate and, particularly in light of his self-report of being sexually attracted to prepubescent and pubescent girls, that the public interest would be served by Internet publication. It is, therefore, unnecessary to remand the case for explicit findings. See id.

Judgment affirmed.

FOOTNOTES

2.   Doe claims that the hearing examiner should not have relied on a 2003 assault and battery charge that was disposed of by pretrial probation. Where the examiner applied “limited weight” to this charge in light of its age and disposition, we discern no prejudice.

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