Opinion
20-P-1382
03-21-2022
John DOE, Sex Offender Registry Board No. 526077 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. He was previously convicted of five counts of indecent assault and battery on a person aged fourteen or over, G. L. c. 265, § 13H. On appeal, he argues that the SORB hearing examiner (1) improperly rejected his expert's testimony; (2) improperly applied a statutory factor assigning aggravating weight to an adult offender who targeted a child victim, because the "child" involved in the child enticement case was actually an undercover police detective; and (3) did not make findings explicit enough to support the level three classification. We affirm.
Doe was also previously charged with enticing a child under age sixteen, G. L. c. 265, § 26C. After Doe admitted to sufficient facts, that charge was continued without a finding, Doe was placed on probation, and the charge was eventually dismissed.
Background. In August 2014, a police detective using the screen name "Miss Jenny" posted a personal advertisement on the Internet website Craigslist. "Miss Jenny" wrote that she was "young and dumb" and looking to meet "a mature guy," and Doe responded. On August 15, 2014, "Miss Jenny" replied, "Im 15 and i guess its important for me to say that so im 15 im 15 im 15 im cool with older guys as long as ur not married." Over several days, the two exchanged messages in which Doe made sexually graphic propositions to "Miss Jenny." On August 23, 2014, Doe arranged that the two meet at a pond to "fuck." A few minutes later, "Miss Jenny" reiterated, "im 15 and I guess its important for me to say that so im 15 im 15 im 15 im cool with you being older." Doe replied, "cool I never fucked a 15yr old hope you can handle my cock." When Doe arrived at the pond, police arrested him; asked if he knew why he was under arrest, he admitted, "yes Craigslist. I'm meeting a young girl." In April 2015, Doe admitted to sufficient facts on a complaint alleging enticement of a child "or someone whom [he] believed to be a child," and was placed on probation for eighteen months.
Messages are spelled and punctuated as in the record.
In December 2015, Doe and a female coworker (victim) were working alone together at a Dunkin restaurant. Behind the building, Doe grabbed at the victim's breasts; she slapped him with an open hand and said, "I don't want this." Without her consent, Doe put his hands down the rear of her pants and inserted his fingers into her vagina. Inside the store, Doe kept touching the victim, then cornered her in a walk-in refrigerator, where he took off her pants and touched and licked her vagina, and also grabbed her by the back of the head and forced his penis into her mouth. On her cell phone, the victim video recorded part of the assault; on the recording Doe could be heard saying repeatedly, "You're going to take this dick." At one point, the victim locked herself in a bathroom, contacted her boss, and sent the boss the video. When the victim left the bathroom, Doe dragged her back into the walk-in refrigerator and forced his penis into her vagina while she said, "no, no, no." In November 2017, Doe pleaded guilty to five counts of indecent assault and battery on a person aged fourteen or over.
Doe was initially indicted for four counts of rape and one count of indecent assault and battery on a person aged fourteen or over.
After a hearing at which Doe presented the expert testimony of licensed social worker Leo D. Keating, the hearing examiner classified Doe as a level three sex offender. A Superior Court judge affirmed the hearing examiner's decision.
SORB did not present expert testimony.
Discussion. 1. Standard of review. "We review a judge's consideration of an agency decision de novo," giving " ‘due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ " Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 88-89 (2019), quoting Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015). "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) (Doe No. 496501 ). See G. L. c. 30A, § 14 (7).
2. Expert testimony. Doe contends that the hearing examiner abused her discretion in applying minimal weight to his expert's testimony, and in failing to state objectively adequate reasons for declining to adopt the expert's opinion that Doe posed a low risk of sexual reoffense. Although the hearing examiner was required to carefully consider expert testimony, Doe "is not entitled to a guarantee that SORB will reach the same conclusion as his expert." Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 137 (2019) (Doe No. 23656 ). A hearing examiner may reject uncontradicted expert testimony, provided she articulates an "objectively adequate reason" for doing so. Id. at 137.
This is true even where SORB does not present any contrary expert testimony. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011).
The hearing examiner considered the expert's opinion that, based on Doe's score of three on the Static 99R and the lack of evidence of pedophilia, Doe posed a low risk of reoffending sexually. The expert considered it important that Doe had not reoffended between December 2017, when he was released from incarceration on the sexual assault offenses, and April 2019, when the hearing occurred.
However, the hearing examiner "disagree[d]" with the expert's risk opinion, and instead found that Doe's risk of reoffense was high, noting that she had "weighed heavily" the evidence supporting regulatory factor two (repetitive and compulsive behavior). The hearing examiner also noted that she gave "minimal consideration" to Doe's expert's opinion to the extent that it relied on empirical tests, because the tests do not take into account all of the factors considered by SORB, including the "collateral inquiry of dangerousness."
The first sentence of regulatory factor two, on which the hearing examiner relied, states that "[t]he most weight shall be given to an offender who engages in sexual misconduct after having been charged with ... a sex offense." 803 Code Mass. Regs § 1.33(2)(a) (2016). Here, Doe had admitted to sufficient facts for the child enticement offense only eight months before he committed the sexual assaults, and while he was on probation. The hearing examiner properly weighed factor two heavily, because Doe "engage[d] in sexual misconduct after having been charged with or convicted of a sex offense." Doe, Sex Offender Registry Bd. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742 (2019), quoting 803 Code Mass. Regs. § 1.33(2). Thus the hearing examiner articulated an "objectively adequate reason" for rejecting Doe's expert's testimony. Doe No. 23656 , 483 Mass. at 137.
Concerns are not present here about the validity of factor two in circumstances where an offender who has not been apprehended for a first offense commits another offense. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., Docket No. 20-1130-B (April 16, 2021) (Wilkins, J.) (declaring invalid second and third sentences of 803 Code Mass. Regs § 1.33(2) ).
"It is the province of the board, not this court, to weigh the credibility of witnesses and to resolve any factual disputes." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe No. 10800 ). See Doe, Sex Offender Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass. 666, 673 (2020) (hearing examiner must consider expert testimony regarding offense-free time prior to incarceration, but "[t]o the extent the hearing examiner does not credit the testimony ... the hearing examiner may discount that testimony in rendering the classification decision"). It was within the discretion of the hearing examiner to reject, as not supported by the evidence, the expert's opinion that Doe's risk of sexual reoffense was low. Where the hearing examiner articulated objectively adequate reasons for applying minimal weight to Doe's expert's opinions, and those reasons were supported by substantial evidence, we discern no abuse of discretion.
3. Factor three (adult offender with child victim). Doe argues that the hearing examiner erred in applying factor three because the person with whom Doe engaged in sexually explicit conversations and then arranged to meet for sex was not in fact a fifteen year old girl, but rather a police detective.
A statutory factor "indicative of a high risk of reoffense and degree of dangerousness posed to the public" is "whether the sex offender was an adult who committed a sex offense on a child." G. L. c. 6, § 178K (1) (a ) (iii). Factor three of the regulations elaborates on the statute, stating, "Adult offenders who target children pose a heightened risk to public safety because children normally lack the physical and mental strength to resist an offender. In addition, children can be lured into dangerous situations more easily than most adults." 803 Code Mass. Regs. § 1.33(3)(a).
If Doe had been convicted of the child enticement charge rather than its having been continued without a finding, statutory factor 36, which specifically focuses on online offenders, might have applied here. See 803 Code Mass. Regs § 1.33(36)(a)(3) ("Sex offenders who communicate with minors or persons they believe to be minors by any electronic means for the purpose of enticing or meeting in-person to engage in sexual misconduct present the greatest danger among online offenders"). However, the hearing examiner did not refer to factor 36, and noted that subsections of the regulations "not specifically referenced are deemed either not controlling or inapplicable to the facts of this case." Nor does Doe address factor 36 in his brief. Therefore, we do not consider it.
From the evidence before her of Doe's admission to sufficient facts for child enticement, as well as the police reports documenting that offense, the hearing examiner had sufficient basis to conclude that Doe had "targeted" a child. Given the prolonged and explicitly sexual nature of Doe's communications with "Miss Jenny," in which he acknowledged his belief that she was fifteen years old, the hearing examiner could apply factor three.
4. Specificity of findings. In Doe No. 496501 , 482 Mass. at 657, the Supreme Judicial Court held that in future cases SORB must make an explicit finding as to Internet publication. For classification decisions pending on appeal when Doe No. 496501 was decided, however, the reviewing court has discretion whether to remand the decision. See id. & n.4. Doe argues that the hearing examiner's findings were not specific enough to justify classifying him as a level three offender and that this panel should remand the case to SORB for it to make more explicit findings justifying his classification.
A "hearing examiner has discretion to consider which regulatory factors are applicable and how much weight to give each factor based on evidence at [the] hearing." Doe No. 10800 , 459 Mass. at 633, citing Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006). Here, the hearing examiner's application of the factors was supported by the evidence based on Doe's criminal history. Specifically, the hearing examiner found reliable evidence that in August 2014, Doe enticed a police detective who he met online and who he believed was a fifteen year old girl, and while on probation for that offense, in December 2015, Doe raped a coworker, for which he was incarcerated.
The hearing examiner explicitly found, by clear and convincing evidence, that Doe presented a high risk of reoffence and degree of dangerousness to the public such that a public safety interest would be served by Internet publication of Doe's registry information. Although these findings were expressed summarily in the concluding paragraph of the hearing examiner's decision, based on the detailed factual findings elsewhere in the decision, 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." Doe No. 496501 , 482 Mass. at 657 n.4.
Judgment affirmed.