Doe v. Sex Offender Registry Bd.

96 Mass.App.Ct. 1116

140 N.E.3d 939 (Table)

John DOE, Sex Offender Registry Board No. 2911

v.SEX OFFENDER REGISTRY BOARD.

18-P-1463

Appeals Court of Massachusetts.

Entered: January 10, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal by the plaintiff from a judgment of the Superior Court affirming the final decision of the Sex Offender Registry Board (board) classifying the plaintiff as a level three (high risk) sex offender. We affirm.

Background. We summarize the facts as set forth in the hearing examiner's decision, "supplemented by undisputed facts from the record." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011).

a. 1977 conviction. In 1977, Doe was found guilty of being an accessory before the fact in the rape of a child, and assault by means of a dangerous weapon. Doe and another man lured the victim, a fourteen year old girl, her sister, and a few of the girls' friends to a stolen truck and drove to a secluded wooded location. There, Doe held a knife to the victim's throat while the other man raped her. The other man then told Doe to rape the victim, and Doe declined. The hearing examiner considered this incident to be an act of "sexual misconduct," rather than a "sex offense."²

b. Governing sex offense. In 1980, while on parole for the 1977 conviction, Doe attempted to rape a seventeen year old girl. Doe approached this victim, a stranger, in a vehicle while she was riding her bike. He asked her for directions and then made comments of an aggressively sexual nature. Without warning, Doe exited his car, pushed the victim to the ground, grabbed her breasts and pelvic area, and attempted to remove her clothing. After a struggle, she managed to run to her nearby home and call out to her father, who recorded Doe's license plate number. The victim identified Doe from a photo array. He was convicted of attempted rape.

c. 1984 offense. In 1984, when Doe was on parole supervision for the governing sex offense, he broke into an apartment. After going through drawers in the home, Doe realized that the apartment was occupied by two women. According to the police report:

"[Doe] said he decided to wait for the girls to come home and would confront them with the knife. He said he would tell them not to scream, be calm and you won't be hurt. [Doe] said he was not sure what he would do to the girls except he planned to hurt them, make them bleed but not to [sic ] much and make them have pain. He said he would make them know how women have hurt him. [Doe] said he would have done anything to overcome the girls' resistance. He wanted to humiliate the girls and use the knife on them but he felt he would not have killed them only hurt them. He said he ... was not sure what he would do to the girls after he hurt them."

While waiting "for hours," he disconnected the telephone "so the girls couldn't call the police." He took a pair of women's panties from the drawers and masturbated into them. He drank the women's wine and smoked cigarettes. When the women returned with male friends, Doe fled. Doe later told the police that he wanted to hurt women. For this, Doe pleaded guilty to larceny and breaking and entering.³

d. Miscellaneous history. Doe has an extensive record, commencing when he was a juvenile, which has resulted in his incarceration for much of his adult life. Doe has a history of noncompliance with community supervision, having been found in violation in 1976, 1999, 2000, and 2001. He was on probation when he engaged in the sexual misconduct that resulted in the 1977 conviction and on parole for his conviction arising from that incident when he committed his governing sex offense. Doe also has a history of being resistant to and uncooperative with sex offender treatment. The record is devoid of any information indicating that Doe successfully completed any sex offender treatment. Between 1994 and 1997, five different individuals obtained a total of seven restraining orders against Doe.

Discussion. Our review is limited, and "[w]e reverse or modify the board's decision only if we determine 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. 10800, 459 Mass. at 633, citing G. L. c. 30A, § 14 (7) (e ), (g ). "The appellant bears the burden of showing that one of these conditions has been met." Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 300 (2015), citing Coe v. Sex Offender Registry Bd., 442 Mass. 250, 258 (2004). Credibility determinations and factual findings are the province of the board or hearing examiner that heard the evidence. Doe No. 10800, 459 Mass. at 633. Importantly, the hearing examiner has discretion to determine how much weight to ascribe to each factor. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 109–110 (2014).

a. Hearing examiner's use of 1977 conviction of accessory before the fact to rape of a child. Doe argues that the hearing examiner inappropriately used sexual misconduct, rather than a sex offense, when applying the factors to assess dangerousness. We disagree. A hearing examiner may use "any information useful in assessing the [sex offender's] risk of reoffense and the degree of dangerousness posed to the public by the sex offender." G. L. c. 6, § 178L (1). In this case, Doe's active participation while another man raped the child, was relevant to the hearing examiner's determination of Doe's risk and danger. Factor 2 (repetitive and compulsive behavior) "is applied when a sex offender engages in two or more separate episodes of sexual misconduct." 803 Code Mass. Regs. § 1.33(2) (2016). The record supports the hearing examiner's rationale. We discern no error.

b. Statutory factors and substantial evidence. Doe argues that the board erred in that it "focused on Doe's behavior from over thirty years ago and failed to adequately address the impact of Doe's current age, health, and offense-free time in the community on his risk to reoffend 37 years after his governing sex offense." Doe relies on Doe, Sex Offender Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass. App. Ct. 383, 385-387 (2009), in which this court emphasized that the board must assess a person's current level of dangerousness. In Doe No. 24341, however, the plaintiff's classification was based on one conviction of assault with intent to rape and indecent assault and battery, twenty-two years earlier, and no other evidence that he posed a risk to the public. Id. at 383-384 & n.1. The plaintiff there showed other indicators of reform that the board did not adequately consider: continuous employment, union membership, two long marriages, five children with whom he maintained a good relationship, and a stable living situation. Id. at 384. Doe's reliance on Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 781 (2008), is unavailing for similar reasons. Here, the hearing examiner appropriately applied the six factors even where the sexual offense and sexual misconduct occurred decades ago.⁴ Moreover, the hearing examiner gave full mitigating weight to the plaintiff's age.

In any event, Doe contends that his level three classification was not based on substantial evidence. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6). Evidence establishing a sex offender classification must be "clear and convincing" to satisfy the substantial evidence requirement. Doe No. 380316, 473 Mass. at 298. "Proof by clear and convincing evidence is ‘not without teeth.’ ... The evidence must be sufficient to convey a ‘high degree of probability’ that the contested proposition is true." Id. at 309, quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 588 n.3 (1977).

Here, the record supports the hearing examiner's determination of Doe's classification, by clear and convincing evidence, in careful view of the abundant evidence of Doe's repetitive and compulsive behavior; age at first offense; stranger relationship with both victims; the use of violence and weapons with both victims; attacking both victims in a public place; history...