Opinion
No. 10–P–481.
2013-09-5
John DOE, Sex Offender Registry Board No. 109483 v. SEX OFFENDER REGISTRY BOARD.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, the plaintiff, John Doe, appeals from Superior Court judgments affirming the Sex Offender Registry Board's (SORB) classification of him as a level three offender and affirming SORB's later decision, upon remand, denying Doe's renewed request for expert funds. Doe argues that (1) there was insufficient evidence to support his classification; and (2) the hearing examiner abused her discretion in denying his motion to retain an expert witness. We affirm.
I. Background. A brief summary of the facts are as follows. On November 1, 2003, Doe, a forty-one year old man, sexually assaulted a fourteen year old girl outside of the home of his girlfriend. The victim was an acquaintance of the girlfriend's daughter and known to Doe. The next day the police arrested Doe. On May 6, 2005, Doe pleaded guilty to one count each of indecent assault and battery on a person fourteen or over (G.L. c. 265, § 13H) and enticement of a child under the age of sixteen for the purpose of committing a crime (G.L. c. 265, § 26C). In 1993, Doe also was alleged to have engaged in a sexual assault offense. Doe, working as a home health aide, allegedly performed fellatio on a nonverbal and nonambulatory ninety-one year old man. He was found guilty, but the conviction was overturned and at retrial he was acquitted of the charge.
In 2008, SORB notified Doe of his level three sex offender classification. Upon Doe's challenge to that classification, a hearing examiner upheld Doe's level three classification. Pursuant to a complaint for judicial review, a Superior Court judge upheld the classification decision. Doe appealed; however, in light of Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623–624 (2010) ( Doe, 151564 ), all parties agreed to stay the appeal to allow the hearing examiner to reconsider Doe's motion for expert funds, which was subsequently denied on different grounds. A Superior Court judge, pursuant to Doe's new complaint for judicial review, upheld the decision denying Doe's motion for expert funds. Doe appealed. Both appeals were consolidated in this court.
II. Discussion. In assessing Doe's challenge to his classification, 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) ( Doe, 10216 ), quoting from G.L. c. 30A, § 14(7). The decision may be set aside only if it is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with the law. Doe, 10216, supra.G.L. c. 30A, § 14(7). It is the agency, and not the reviewing court, which is “the sole judge of the credibility and weight of evidence before it during the administrative proceeding.” Embers of Salisbury, Inc. v. Alcoholic Bevs. Control Commn., 401 Mass. 526, 529 (1988), quoting from Number Three Lounge, Inc. v. Alcoholic Bevs. Control Commn., 7 Mass.App.Ct. 301, 309 (1979).
A. Intake assessment report. Doe asserts that the hearing examiner erred in refusing to admit the risk opinions from an intake assessment report (intake), including the STATIC–99 test results contained therein,
on the ground of improper opinion evidence. We disagree. SORB's regulations specifically identify an expert witness as a “licensed mental health professional ... whose testimony and report offering an opinion as to a sex offender's risk of reoffense and degree of dangerousness were prepared expressly for reliance by a Party at a hearing conducted pursuant to 803 [Code Mass. Regs. §§ ] 1.07 through 1.26.” 803 Code Mass. Regs. § 1.03 (2004). Doe, 10216, supra at 789.
As noted in the hearing examiner's decision, a STATIC–99 report is an actuarial tool developed to estimate the probability of sexual violent recidivism among male adults who have been convicted of at least one sexual offense against a child or nonconsenting adult.
Here, the intake was prepared in 2006 for the Massachusetts treatment center, not SORB, and by an individual who was not identified or qualified as a licensed mental health professional. In addition, SORB proffered the intake as documentary evidence to support other facts contained within the record. See 803 Code Mass. Regs. § 1.19 (2002). Doe did not offer the intake as evidence, have its author available to testify, or object to its admission as nonexpert documentary evidence. See Poe v. Sex Offender Registry Bd., 456 Mass. 801, 808–809 (2010). See also 830 Code Mass. Regs. § 1.40(15) (2002). Additionally, it was well within the discretion of the hearing examiner to refuse to accept the STATIC–99 test results contained within the intake.
See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011) (“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”); 830 Code Mass. Regs. § 1.18(5), (6) (2002) (setting out requirements that expert opinion be disclosed prior to hearing and expert be available at hearing to testify).
As noted in her order on Doe's motion for funds for an expert, the hearing examiner gave the STATIC–99 test “some weight” to the extent that it was correctly applied to the facts and related to general indicators of the risk to reoffend, but noted that the test does not address the issue of dangerousness, a requirement that is essential in determining a sex offender's classification. The registration requirement is based on “an assessment (by the board) of the person's current level of dangerousness and risk of reoffense” (emphasis added). Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787 (2008).
Even if the hearing examiner's refusal to consider the opinions from the intake, including the STATIC–99 test results, was error, any such error was harmless. It is apparent on the record that the hearing examiner properly considered all the evidence presented and found applicable statutory and regulatory factors to support Doe's level three classification, including his sexual offenses against a child, his relationship to the child victim, that the offenses occurred in a public place, and the short amount of time Doe had been in the community since his release from incarceration. The hearing examiner also weighed and credited mitigating factors, such as Doe's sex offender treatment and his positive period of incarceration, which included his recent behavior while incarcerated. The hearing examiner properly upheld Doe's level three sex offender classification as the classification was supported by substantial evidence that Doe presented a high risk to reoffend and a high degree of dangerousness.
B. Expert witness funds. We are not persuaded that Doe has shown that the hearing examiner abused her discretion in denying funds for an expert witness.
“[I]n moving for expert witness funds, the burden will be on the sex offender to identify and articulate 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). A general request, as here, for expert funds is not sufficient to meet that burden. See ibid.; Doe, 151564, 456 Mass. at 624.See also Doe, 10216, 447 Mass. at 785 (allowance of expert funds is within the discretion of the hearing examiner).
Doe's motion on remand was denied by the hearing examiner on the ground that it was a general request for expert funds and did not show a particularized need.
Judgments affirmed.