Opinion
21-P-780
11-30-2022
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 523878 v. SEX OFFENDER REGISTRY BOARD.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Doe (Doe), appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (board or SORB) as a level two sex offender. Doe argues that (1) the hearing examiner erred in disregarding expert testimony and clinical evidence, and (2) the level two classification was not supported by substantial evidence. We affirm.
Given our conclusion, we need not address Doe's argument that this court should order that he be reclassified as a level one sex offender.
Background.
We summarize the facts as found by the hearing examiner, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No. 10800 ).
On May 31, 2012, Doe approached a twenty-seven year old woman as she walked down the street, blocked her path using a motorized scooter, circled her with the scooter, and threatened to rape her. On August 15, 2012, Doe pleaded guilty to the charges of accosting and annoying a person of the opposite sex (G. L. c. 272, § 53) and threatening to commit a crime (G. L. c. 275, § 2). Doe was sentenced to six months of incarceration suspended for two years on the accosting and annoying conviction, and to three months of incarceration for the threatening to commit a crime conviction.
Doe told the woman, "I'm going to put my dick in you." When she asked Doe if his statement was a threat, he replied, "Yes, it is a threat. I'm going to rape you." Blocking her path with the scooter again, Doe said, "I'm going to put my dick in you and it is going to be the biggest one you ever had." The woman ran to a bus stop and sought help from a pedestrian while Doe attempted to flee.
A charge of assault with intent to rape (G. L. c. 265 § 24) had been dismissed previously.
On December 5, 2014, Doe approached a fifty-nine year old woman as she stood outside her workplace and asked her whether a car parked nearby belonged to her. After she replied that it did not, Doe responded, "[T]oo bad, I do body work and would like to do yours." Doe then ran his hands over her breasts several times, grabbed her breasts, and said, "I got a free feel, and I'll be back for more." At the police station after his arrest, Doe told a female police officer, "[B]itch, you're going to be the next victim[.] I'm going to fuck you and your mother." On October 22, 2015, Doe pleaded guilty to charges of indecent assault and battery on a person age fourteen or over (G. L. c. 265, § 13H), threat to commit a crime (G. L. c. 275, § 2), and intimidation of a witness, juror, police officer, or court official (G. L. c. 268, § 13B), and was sentenced to eighteen months of incarceration followed by a term of probation. Following notification and a hearing pursuant to the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q, the board's hearing examiner classified Doe as a level three sex offender on September 2, 2016. Thereafter, Doe sought judicial review pursuant to G. L. c. 30A, § 14, and a
Superior Court judge affirmed the level three classification. Upon Doe's appeal, a panel of this court issued a decision pursuant to its former rule 1:28 (now rule 23.0), vacating the judgment and remanding the matter to the board for a new hearing because the hearing examiner improperly denied Doe's motion for expert funds regarding the impact of his diabetes on his risk of recidivism. See Doe, Sex Offender Registry Bd. No. 523878 v.Sex Offender Registry Bd., 95 Mass.App.Ct. 1118 (2019).
At the subsequent classification hearing in December 2019, Doe presented the testimony of expert witness Dr. Angela Johnson, and the parties submitted documentary evidence including, inter alia, Dr. Johnson's 2019 "Sex Offender Risk Assessment for Registration (SORB)" report and 2016 reports by Dr. Joseph Plaud and Dr. Barbara Quinones evaluating whether Doe was a sexually dangerous person (SDP). The hearing examiner determined, by clear and convincing evidence, that Doe "poses a moderate risk to re-offend and a moderate degree of dangerousness," and ordered that he register as a level two sex offender. Doe again sought judicial review in the Superior Court, and the judge denied his motion for judgment on the pleadings and affirmed the level two classification. Doe timely appealed.
The district attorney for the Suffolk district petitioned the Suffolk County Superior Court to commit Doe as an SDP on May 3, 2016. See G. L. c. 123A, § 12.
Discussion.
1. Standard of review.
A reviewing court may set aside a decision of the board if it determines "'that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law'" (citation omitted). Doe, Sex Offender Registry Bd. No. 22188 v.Sex Offender Registry Bd., 101 Mass.App.Ct. 797, 801 (2022). While we review a judge's consideration of an agency decision de novo, Doe, Sex Offender Registry Bd. No. 523391 v.Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 89 (2019) (Doe No. 523391), we "'give 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. 10216 v.Sex Offender Registry Bd., 447 Mass. 779, 787 (2006), quoting G. L. c. 30A, § 14 (7). Doe therefore "bears a heavy burden of establishing that the [board]'s decision was incorrect" (quotation and citation omitted). Doe, Sex Offender Registry Bd. No. 3177 v.Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).
2. Hearing examiner's treatment of expert evidence.
a. Dr. Johnson's testimony and report.
Doe contends that the hearing examiner erred by disregarding Dr. Johnson's expert testimony, report, and opinion contained therein that Doe poses a low risk to reoffend. We disagree. In the context of a SORB classification hearing, a hearing examiner must consider the "evaluative reports, empirically-based risk assessments, [and] testimony from a licensed mental health professional that discuss psychological and psychiatric issues . . . as they relate to the offender's risk of reoffense." 803 Code Mass. Regs. § 1.33(35)(a) (2016). See Doe, Sex Offender Registry Bd. No. 23656 v.Sex Offender Registry Bd., 483 Mass. 131, 135 (2019). However, the "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, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014) (Doe No. 68549 ), quoting Doe No. 10800 , 459 Mass. at 637.
In the present case, the hearing examiner did not "disregard" Dr. Johnson's expert testimony and report. To the contrary, after noting that the STATIC-99R evaluation conducted by Dr. Johnson was not based on the board's regulatory factors, the hearing examiner nonetheless afforded the tests "some weight" to the extent they served as a "general indicator of risk of re-offense." Despite a lack of required documentation showing Doe participated in sex offender treatment, the hearing examiner applied mitigating factor thirty-two -- albeit with "minimal weight" -- by citing Dr. Johnson's report for Doe's statement that he had "completed" treatment. See 803 Code Mass. Regs. § 1.33(32)(a)(1). Likewise, the hearing examiner cited Dr. Johnson's report regarding Doe's stable housing and disability income to apply mitigating factor thirty-four (stability in the community). See 803 Code Mass. Regs. § 1.33(34)(a).
Furthermore, contrary to Doe's assertion, the hearing examiner did not "[seize] on a single fact -- that neither of [Doe's] two sex-related offenses had involved his penis" -- as the basis for affording Dr. Johnson's opinion that Doe poses low risk for reoffense "little weight." Rather, the hearing examiner found Dr. Johnson's risk opinion unpersuasive because, inter alia, both of Doe's sex offenses occurred after his diagnosis of diabetes and erectile dysfunction, the outdated medical records covering 2011-2014 made Doe's current claims of erectile dysfunction entirely self-reported, Dr. Plaud's 2016 report indicated that Doe conveyed having no issues achieving an erection, Dr. Johnson did not address the fact that neither sex offense involved Doe's penis, and Dr. Johnson applied mitigating factor twenty-nine despite Doe not having the requisite five years of offense-free time in the community. See 803 Code Mass. Regs. § 1.33(29)(a).
In addition, we reject Doe's assertion that the hearing examiner's treatment of Dr. Johnson's testimony and report was "contrary to the spirit, if not the letter" of this court's 2019 decision to remand the case. After careful review of the record, we discern no error in the hearing examiner's consideration of Dr. Johnson's testimony and report, nor in his decision to afford her ultimate risk opinion "little weight." The downward departure in the hearing examiner's classification determination and the increase in mitigating weight he afforded
Doe's physical condition compared to his initial decision demonstrate that he considered the evidence, even if he did not reach the same conclusion as Dr. Johnson. See Doe, Sex Offender Registry Bd. No. 151564 v.Sex Offender Registry Bd., 85 Mass.App.Ct. 1, 11 (2014) ("Doe is entitled to consideration, not acceptance, of the expert testimony").
b. SDP reports of Dr. Quinones and Dr. Plaud.
Similarly, Doe contends that the hearing examiner failed to adequately consider the SDP reports by Dr. Quinones and Dr. Plaud in contravention of this court's opinion in Doe, Sex Offender Registry Bd. No. 11204 v.Sex Offender Registry Bd., 97 Mass.App.Ct. 564 (2020) (Doe No. 11204 ). Again, we disagree.
Doe's reliance on Doe No. 11204 is unpersuasive. At issue in Doe No. 11204 was the hearing examiner's consideration of reports generated during the SDP process. Doe No. 11204 , 97 Mass.App.Ct. at 564-565. The hearing examiner did not rule that the board's regulations prohibited him from considering the risk and dangerousness conclusions in the reports, but rather stated in a perfunctory manner that he was not giving "much," if any, weight to an SDP report's risk and dangerousness determinations because "there are statutory differences in the criteria for civilly committing SDP[s]." Id. at 573. After comparing the sex offender registration and SDP processes and noting that they "are based in large part on assessing the same underlying factual issues," this court concluded that the hearing examiner did not adequately consider the reports, but rather disregarded them "simply by noting that there are differences between the SDP and the SORB processes" while he simultaneously "mined" them for useful information despite failing to address nor even mention some of the reports. Id. at 571, 573-575.
Here, the hearing examiner explicitly stated that he considered both SDP reports in his overall analysis of the risk of reoffense and danger Doe poses, but noted the reports were "dated" and that he would not consider their ultimate risk opinion because neither doctor testified at the hearing. The hearing examiner's decision not to consider the ultimate risk opinion in the SDP reports is in accordance with the plain language of the board's regulations, which state that the board "may give appropriate evidentiary weight to documentary reports and risk assessment, but the ultimate risk opinion, if any, will be excluded from consideration unless the mental health professional testifies as an expert witness at the classification hearing." 803 Code Mass. Regs. § 1.33(35)(a). See also 803 Code Mass. Regs. § 1.17(5)(c) (2016) ("The failure to call the Expert Witness to testify at the hearing will result in the exclusion of so much of the report as expresses the Expert Witness's opinion as to the sex offender's risk of reoffense or degree of dangerousness"). While the hearing examiner did refer to the SDP reports regarding Doe's substance abuse history and his antisocial personality disorder, Dr. Johnson also provided this information in her report and testimony. Furthermore, the hearing examiner quoted Dr. Plaud's statement that a person being referred for sex offender registration or civil commitment as an SDP "ha[s] historically made significant errors in judgment and engaged in abusive behaviors towards others[,] [b]ut this does not mean that [he] lack[s] the ability to control [his] behavior, especially in the present day context, as opposed to the time preceding the commission of the governing sexual offense." Accordingly, we discern no error in the hearing examiner's consideration of the SDP reports, and reject Doe's argument that he "cherry-pick[ed]" information from them that "cast [Doe] in a negative light" in the manner this court frowned upon in Doe No. 11204 .
3. Substantial evidence.
Doe also asserts that his level two classification was not supported by substantial evidence. The claim is unavailing. When reviewing a decision by the board, we "must determine whether the decision is supported by substantial evidence" (quotation and citation omitted), Doe No. 10800 , 459 Mass. at 632, which is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion," id., quoting G. L. c. 30A, § 1 (6). Our 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" (quotations and citation omitted). Doe No. 68549 , 470 Mass. at 110. See also Doe No. 10800 , supra at 633 ("It is the province of the board, not this court, to weigh the credibility of the witnesses and to resolve any factual disputes"). Furthermore, the "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 , supra at 109-110.
Here, the hearing examiner applied one high-risk factor and nine risk-elevating factors based on facts supported by the record., Doe engaged in sexual misconduct in 2014 undeterred after being charged with or convicted of a sex offense in 2012. Both offenses occurred in public places, and both victims were strangers to Doe. As detailed in the hearing examiner's findings and the record, Doe has a substantial history of alcohol and substance abuse dating back to age nine, continues to drink alcohol every day, and has substance-related convictions and charges on his record. The record also demonstrates that Doe has expressed threats to sexually assault another person on multiple occasions, including his threat to rape a police officer and her mother in 2014, and his threat aimed at a correctional officer in 2015. Doe has a lengthy criminal history with several convictions and charges dating back to 1988 for violent, threatening, and harassing behavior. Doe also received approximately sixty-three disciplinary reports while incarcerated, and has violated the terms of his probation several times.
The hearing examiner applied factors two (repetitive and compulsive behavior), seven (relationship between offender and victim) with increased weight, nine (alcohol and substance abuse), ten (contact with criminal justice system), eleven (violence unrelated to sexual assaults), twelve (behavior while incarcerated), thirteen (noncompliance with community supervision) with increased weight, fourteen (recent threats), sixteen (public place), and twenty-two (number of victims). See 803 Code Mass. Regs. §§ 1.33(2), (7), (9), (10)-(14), (16), (22).
At oral argument, Doe acknowledged that high-risk factor two (repetitive and compulsive behavior) applied but argued that the hearing examiner improperly afforded it undue weight given his "offense free time in the community" beginning in 2016. Because Doe did not argue this issue in his brief, we deem it waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief"). Even assuming that the issue was timely raised, we discern no error in the hearing examiner's application and weighing of factor two because Doe engaged in sexual misconduct in 2014 after having been charged with or convicted of a sex offense in 2012. See Doe, Sex Offender Registry Bd. No. 6729 v.Sex Offender Registry Bd., 490 Mass. 759, 765-766 (2022); 803 Code Mass. Regs. § 1.33(2)(a).
These disciplinary reports included violations for profanity, disrupting the facility, vandalizing his cell, and assaulting a correctional officer.
Doe committed the 2014 sex offense while on probation for assault with a dangerous weapon (firearm).
The hearing examiner also considered multiple risk mitigating factors applicable to Doe. While Doe was fifty-two years old at the time of the hearing, the hearing examiner applied moderate mitigating weight to his age because of Doe's ongoing criminality. The hearing examiner applied minimal mitigating weight to Doe's physical condition because the required medical documentation Doe submitted covered only 20112014, Doe's current claims of erectile dysfunction are entirely self-reported, both of Doe's sex offenses occurred after his diagnosis of diabetes with erectile dysfunction, and neither offense involved the use of his penis. As mentioned above, the hearing examiner also applied factors thirty-two (sex offender treatment) and thirty-four (stability in the community) based on Dr. Johnson's testimony and report. Upon weighing these factors, the hearing examiner reduced Doe's classification from a level three to a level two sex offender. While Doe does not agree with that result, we conclude that the hearing examiner's determination that clear and convincing evidence supported a level two classification was supported by substantial evidence.
Doe was arraigned on charges of assault and battery on an elderly or disabled person just eleven days prior to the classification hearing in December 2019.
Judgment affirmed.
By the Court
Sullivan, Neyman &Brennan, JJ.
The panelists are listed in order of seniority.