Opinion
10-P-1974
03-05-2012
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22740 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
John Doe appeals from a Superior Court judgment affirming a Sex Offender Registry Board (board) classification decision requiring him to register as a level three (high risk) sex offender, pursuant to G. L. c. 6, §§ 178C - 178Q, and 803 Code Mass. Regs. § 1.00 (2004). Underlying Doe's classification are three aggravated rapes of a single victim to which Doe pleaded guilty in 1995. On appeal, Doe argues that (1) the board's decision was not supported by substantial evidence, (2) expert testimony was required at the classification hearing, and (3) the composition of the board rendered his classification invalid. We affirm.
1. Substantial evidence. Doe raises for the first time on appeal the contention that the hearing examiner's decision is not supported by substantial evidence. Because Doe failed to raise the issue in the Superior Court, it is waived. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006). Even were that not so, the argument is unavailing because the determination that Doe poses a high risk of reoffense and a high degree of danger to the public is clearly supported by substantial evidence. See G. L. c. 6, § 178K(1); 803 Code Mass. Regs. § 1.40 (2004); Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 632 (2011), quoting from G. L. c. 30A, § 1(6) ('Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion'').
Doe committed multiple violent sexual assaults upon the victim, who was nine months pregnant. During his attacks, Doe threatened her with a knife, hit her with a hammer, and wrapped a telephone cord around her neck. Although Doe has no other convictions for sexual offenses, he has a extensive criminal history, including a conviction for a crime of violence. During his nine year incarceration, Doe received at least thirty-one disciplinary reports and refused to attend sex offender treatment.
We reject Doe's contention that the examiner misapplied factors bearing on dangerousness and gave too little weight to mitigating factors. Contrary to Doe's assertion, the examiner considered the regulatory factors bearing on whether Doe 'currently poses a danger' and properly gave significant weight to Doe's criminal history and the violence of his sexual assaults. See 803 Code Mass. Regs. § 1.06(3) (2004). The evidence supports the examiner's determination that Doe was essentially a stranger to the victim, whose advanced pregnancy rendered her extra vulnerable.
The examiner was well within his discretion in declining to credit Doe for the absence of additional aggravating factors and assigning more weight to aggravating than to mitigating factors. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 788 (2006) ('Neither the statute nor the regulations specify that the inapplicability of a certain factor weighs in favor of an offender'); Doe, Sex Offender Registry Bd. No. 10800, 459 Mass. at 633, citing Smith, 65 Mass. App. Ct. at 812-813 (hearing examiner has discretion to consider how much weight to give each factor).
The hearing examiner found that the following facts weighed in Doe's favor at the time of classification: he was on probation, attending mandatory sex offender treatment, and generally compliant with the terms of his community supervision.
2. Expert testimony. Doe's assertion in a single paragraph of his brief that the board erred by denying him the opportunity to present expert testimony does not rise to the level of adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). The board has discretion to award funds for an expert to an indigent sex offender who identifies and articulates 'the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.' Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). Doe failed to offer any such justification, and his general assertion of entitlement to expert testimony regarding his risk of reoffense and degree of dangerousness is insufficient. See ibid.
3. Composition of the board. There is no merit to Doe's argument that his classification is invalid because the board did not contain among its members two licensed mental health professionals at the time of classification. See Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 791-793 (2008). Doe lacks standing to challenge the make-up of the board. See id. at 789-790. The board had at least four sitting members at the time of classification, see G. L. c. 6, § 178K(1), and was authorized 'to carry out its legislatively mandated duties, regardless of whether it [was] fully constituted with two licensed psychologists or psychiatrists.' Doe, Sex Offender Registry Bd. No. 15606, 452 Mass. at 791.
Judgment affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),