Opinion
21-P-142
03-25-2022
John DOE, Sex Offender Registry Board No. 502216 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe, appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (board) decision to classify him as a level two sex offender in accordance with G. L. c. 6, § 178K (2) (b ). On appeal, Doe contends that (1) the board's hearing examiner (examiner) improperly denied his motion for expert witness fees; (2) the examiner failed to properly consider his doctor's letter regarding his medical conditions; and (3) there was insufficient evidence to support the examiner's decision to classify him as a level two sex offender. We affirm.
Background. We summarize the facts as set forth by the examiner in her decision, supplemented by materials included in the administrative record, and reserve certain facts for later discussion. In the early morning of June 30, 2013, Doe, who was forty-nine years old, was at the Esplanade in Boston with an adult woman (victim), whom he had met once previously. Doe and the victim were drinking together and became intoxicated. Eventually, the victim lay down in the grass, and Doe climbed on top of her and began to kiss her. The victim repeatedly asked Doe to stop, but he continued, unzipped his shorts, and began rubbing his penis on her hand. The victim continued to plead with him to stop until she lost consciousness due to intoxication. A police officer patrolling the area, seeing Doe appearing to have sexual intercourse with the victim, approached and saw Doe attempt to zip up his shorts. The officer noticed that Doe smelled like alcohol. The officer couldn't wake the victim, so he called emergency medical service providers, who were able to wake her.
About one year after this incident, Doe pleaded guilty to two counts of indecent assault and battery on a person fourteen years of age or older, pursuant to G. L. c. 265, § 13H. Before entering this guilty plea, Doe had commissioned a psychological evaluation by Dr. Winsmann, a licensed psychologist, who had produced a written report on June 13, 2014.
Doe was preliminarily classified as a level three sex offender. After a change in the applicable law, three evidentiary hearings, and two forays to the Superior Court, during which he steadfastly pursued his request for expert witness funds, he was classified as a level two sex offender. A third appeal to the Superior Court, and this appeal, followed.
Standard of review. " ‘To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence.’ " Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015) ("Doe No. 356011 "), quoting Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) ("Doe No. 10216 "). "The decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe No. 356011 , supra, citing Doe No. 10216 , supra. "In our review of an agency's decision for an abuse of discretion, we consider ‘whether the decision was reasonable.’ " Doe, Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 533, 537 (2021), citing Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 457 (2017). We also " ‘give due weight to the experience, technical competence, and specialized knowledge’ of the board." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010), quoting G. L. c. 30A, § 14 (7).
Discussion. 1. Motion for expert witness funds. "The board has discretion to grant funds to indigent offenders for an expert witness or report to be presented at the classification hearing, ‘whether or not the board itself intends to rely on this type of expert evidence.’ " Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 28 (2021) ("Doe No. 339940 "), citing Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774 (2008) ("Doe No. 89230 "). "The board's discretionary decision to grant or deny an offender's motion for expert funds is ‘based on the facts presented in an individual case.’ " Doe No. 339940 , supra, citing Doe No. 89230 , supra at 775.
"The offender's motion for expert funds must ‘1. identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffense or level of dangerousness; 2. identify the particular type of Expert Witness who would provide testimony to assist the Hearing Examiner in his or her understanding and analysis; and 3. include supporting documentation or affidavits verifying the specific condition or circumstance that the offender suffers from." Doe No. 339940 , 488 Mass. at 28-29, citing 803 Code Mass. Regs. § 1.16(4)(a) (2016). "In particular, the offender bears the burden of ‘identify[ing] and articulat[ing] the reason or reasons, connected to a condition or a circumstance special to him, that he needs to retain a particular type of expert.’ " Doe No. 339940 , supra at 29, citing Doe No. 89230 , 452 Mass. at 775. " ‘A general motion for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient.’ " Doe No. 339940 , supra, citing Doe No. 89230 , supra. An examiner "has discretion to deny expert funds to indigent sex offenders who [seek to] offer expert opinion on factors that the board's regulations already require [her] to consider." Doe, SexOffender Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass. 666, 670 (2020) ("Doe No. 234076 ").
Factor 9 required consideration of Doe's substance use history and how it may increase his risk of reoffense, 803 Code Mass. Regs. § 1.16(9)(a) (2016). Doe asserted that "Dr. Winsmann will need to review the new mental health treatment records and re-interview and re-administer the psychological tests in order to present a current opinion of [Doe's] likelihood of reoffense, particularly in light of [Doe's] history of substance abuse." Doe also submitted the psychological evaluation that Dr. Winsmann performed on him in 2014, in which the doctor opined that Doe's "decision to drink alcohol and the decision to offend sexually were linked," and that Doe's "risk to reoffend sexually is low to moderate, and, in large part, is driven and determined by his ability to avoid alcohol or other drugs." Because Doe's motion explained only that Dr. Winsmann would be offering his opinion on Doe's substance use history and risk of reoffense, Doe did not meet his burden to identify and articulate a reason, connected to a condition or circumstance special to him, that he needed to retain Dr. Winsmann. The examiner did not abuse her discretion when she denied him expert funds because he sought to offer an expert opinion on factors that the board's regulations already required her to consider. See Doe No. 234076 , 484 Mass. at 670.
On appeal, Doe articulates -- for the first time -- that the expert testimony was necessary to explain the connections among Doe's mental health, alcohol use, and risk of re-offense, which he maintains are not captured by the regulatory factors and were relevant to his classification. We offer no opinion as to whether, had this more precise explanation been properly presented to the hearing examiner, Doe might have achieved a different result.
2. Application of Factor 31 (Physical Condition). Doe asserts that the examiner "ignored" his physical disability, described in Dr. Kearns's letter, when evaluating the risk of reoffense and degree of dangerousness. This is not so. After Doe's case was remanded so that the examiner could assess the letter, she did. Applying Factor 31 (Physical Condition), the examiner noted that the letter did not directly address how Doe's physical condition affected his likelihood of reoffense and, therefore, gave Factor 31 "minimum weight." She acted within her discretion to do so. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011), citing Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006) (hearing examiner has discretion to consider which regulatory factors are applicable and how much weight to give each factor based on evidence at hearing).
Factor 31 states: "Pursuant to [G. L. c. 6, § 178K (1) (d ) ], the Board shall give consideration to the offender who has a physical condition that is documented by a treating medical provider. Factor 31 seeks to identify those offenders who have a decreased risk of reoffense or degree of dangerousness due to a physical condition, including a debilitating illness." 803 Code Mass. Regs. § 1.33(31)(a) (2016).
3. Weight of the evidence, application of mitigating factors. Doe maintains that the examiner's decision to classify him as a level two sex offender was unsupported by substantial evidence because she gave inadequate weight to various mitigating factors that, taken collectively, required Doe's classification as a level one sex offender. We conclude that there is substantial evidence to support a level two classification and the mitigating factors were adequately addressed.
The examiner found that the sexual offense was in a "public setting" (Factor 16), and that the victim was extrafamilial (Factor 7), and extravulnerable, because she was unconscious at the time of the sexual assault (Factor 18). The examiner also found that Doe has "a history of substance abuse and was intoxicated at the time of his sexual offending" (Factor 9). Furthermore, the examiner considered Doe's legal history, which included multiple charges both as a juvenile and as an adult (Factor 10) and "four no abuse orders secured against him by three separate women" (Factor 15).
The examiner found that Doe's "legal history started when he was [fourteen] years of age with charges of assault to rob, larceny, unarmed robbery, and breaking and entering. As an adult, his charges included operating to endanger, larceny, conspiracy, assault and battery, kidnapping, [twice operating under the influence], possession of class B [substance], and multiple motor vehicle [offenses] among others. While many of [Doe's] charges[ ] were dismissed or continued without a finding, he was incarcerated several times." Doe asserts in his brief that the examiner misapplied this factor because he has never been incarcerated, but Dr. Winsmann included in his psychological evaluation that Doe had previously been incarcerated.
In mitigation, the examiner considered Doe's age (fifty-five) (Factor 30), and that "for the last several years he has been residing with a roommate who finds him as [sic ] supportive and says he regularly pays his share of the rent" (Factor 34). She also considered that Doe "completed his term of probation without incident having attended all scheduled appointments, had negative alcohol screening results, and complied with mental health treatment" (Factor 34). Lastly, the examiner "minimally" considered Doe's chronic medical conditions (Factor 31). Balancing the risk-elevating factors and the mitigating factors, the examiner concluded that Doe's "risk of reoffense and danger are moderate."
Doe contends that the examiner should have also considered Factor 28 (Supervision by Probation or Parole) as a mitigating factor, but the regulation states that "[a]n offender's risk of reoffense and degree of dangerousness are reduced while he is serving a term of community supervision," and since Doe was no longer serving a term of probation or subject to supervision, this factor is not applicable. 803 Code Mass. Regs. § 1.33(28)(a) (2016).
Especially in light of our standard of review and the deference owed the examiner, we conclude that she did not improperly weigh the mitigating factors and that there was substantial evidence supporting her decision.
Judgment affirmed.