Opinion
13-P-1575
07-16-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 6638 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Doe challenges the Sex Offender Registry Board's (SORB) classification of him as a level three sex offender. He contends the hearing examiner erred by denying a motion in limine to exclude purported hearsay, and, for further reasons that we address below, that his classification was not supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006) (classifications must be supported by substantial evidence). After "conducting our review [giving] 'due weight to the experience, technical competence, and specialized knowledge' of [SORB]," as we must, we affirm. Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1, 6-7 (2014), quoting from Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010).
1. Substantial evidence. a. Extrafamilial victim. In 1993 Doe was convicted of four counts of indecent assault and battery upon a child under the age of fourteen. In each instance, the victim was the ten year old daughter of the woman with whom he had two other children. The defendant is not the victim's biological father. Relying on 803 Code Mass. Regs. § 1.40(3), (7) (2002), the hearing examiner found that "because the Petitioner (as an adult) sexually abused an extrafamilial child victim,[ ] another of [SORB's] factors is implicated. Adult offenders who commit sexual assaults upon extrafamilial or stranger child victims . . . are deemed to present a heightened risk of re-offense and degree of dangerousness."
Doe does not contend that his victim was not extrafamilial.
Doe asserts that "[t]he potential victim pool for an extrafamilial child molester such as Doe first has to be reduced based upon the gender of the victim." Doe provides no legal support for this assertion. Moreover, his claim ignores the gravamen of the hearing examiner's finding, which relates to Doe's likelihood of reoffense, not solely his potential victim pool. See 803 Code Mass. Regs. § 1.40(7) ("The potential number of victims . . . is not the only issue to be considered in understanding the relationship between Adult Offenders and victims"). This finding is supported. b. Probation violation and drug offenses. We also see no merit to Doe's assertion that the hearing examiner's statement, "It is unclear from the record if Doe was under the influence of drugs and/or alcohol when he committed his [sex] offenses[,]" is an unsubstantiated finding that Doe was under the influence of drugs when he committed the index offenses, leading to the hearing examiner's allegedly improper application of factor (9)(c)(5) (lack of impulse control). The statement did not constitute a finding that Doe had committed the predicate offenses while under the influence. During her discussion on the unrelated topic of Doe's history of drug and alcohol convictions, the hearing examiner observed that "use of alcohol or controlled substances may act as a disinhibitor to an offender's sexual urges." See 803 Code Mass. Regs. § 1.40(16) (2002) (substance abuse causes disinhibition). However, the remark did not inform the hearing examiner's application of factor (9)(c)(5), which had independent record support.
The hearing examiner found and considered that Doe had committed the child molestation predicate offenses while on probation and applied factor (9)(c)(5) (lack of impulse control). The hearing examiner also separately found that Doe presented with a history of substance abuse. This finding was supported by Doe's history of drug-related offenses, including a conviction of possession of a class B substance (for which Doe was on probation at the time of the child molestations), three convictions of operating under the influence, and a Federal conviction of possession of heroin. Contrary to Doe's claim, these findings supported the hearing examiner's application of the two distinct factors. Compare 803 Code Mass. Regs. § 1.40(9)(c)(5) (2002) (lack of impulse control) with 803 Code Mass. Regs. § 1.40(16) (2002) (substance abuse causes disinhibition). We see no error.
c. Doe's age. Doe was forty-nine years old at the time the hearing examiner issued her decision. Doe provided two scientific studies directed at how age affects recidivism. The hearing examiner considered both. She opined that one study showed that "extrafamilial child molesters show relatively little reduction in recidivism risk until after the age of 50." She indicated that the other study showed that "the best description of the age function is a gradual linear decrease in recidivism rates from age 25 to age 70." The hearing examiner gave "the fact that the Petitioner was 30 at the time of his offenses and is now 49 limited weight as a mitigating factor." The hearing examiner reasonably considered the articles and how their conclusions affected Doe's likelihood to reoffend. "As 'long as [SORB's] interpretation of its regulations and statutory mandate is rational, and adhered to consistently, it should be respected,' and given substantial deference." Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 813 (2006), quoting from Midland States Life Ins. Co. v. Cardillo, 59 Mass. App. Ct. 531, 537 (2003). We perceive no error.
At the hearing, Doe did not request an expert to testify on his behalf with respect to age and recidivism, nor did he make a motion for funds for an expert witness. On appeal, he does not argue that an expert witness was needed. Compare Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. at 9-12.
2. Motion in limine. Doe moved to exclude, on the basis of hearsay, a "Prisoner Release Notification" form issued by the Federal Bureau of Prisons to SORB, the Massachusetts Attorney General's office, the Federal probation office, and the chief of police where Doe lived before incarceration, informing them that Doe would soon be released and had been convicted of a sex offense, a violent crime, and Federal drug trafficking. Doe specifically objected to statements on the second page of the form detailing two convictions in his criminal history, one for a 1990 conviction of assault and battery by means of a dangerous weapon, and another for a 1998 conviction of assault with a dangerous weapon. Those descriptions contained brief factual summaries of the criminal acts, referring to facts from police reports and victim statements. The hearing examiner denied the motion.
Assuming, without deciding, that this evidence was improperly admitted, we see no prejudice flowing from its admission. Doe's criminal record was validly admitted; it informed the hearing examiner of the commission of these violent offenses. Furthermore, the hearing examiner makes no mention of any reliance on these short descriptions in her written decision. Finally, even without these descriptions, there was ample evidence in the record for the hearing examiner to find, as she did, that Doe's history of nonsexual violent offenses affected his likelihood to reoffend and his dangerousness to the community. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 765 n.12 (2006) ("Because this consideration was but one factor overshadowed by other factors . . . the examiner's ultimate conclusion remains reasonable and supported by substantial evidence").
We note that "the rules of evidence do not apply to a classification hearing." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 647 (2012). "Hearsay with adequate indicia of reliability" is admissible. Ibid.
Judgment affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 16, 2015.