Doe v. Sex Offender Registry Bd.

100 Mass.App.Ct. 1102

170 N.E.3d 727 (Table)

John DOE, Sex Offender Registry Board No. 450048

v.SEX OFFENDER REGISTRY BOARD.

20-P-564

Appeals Court of Massachusetts.

Entered: July 16, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level two sex offender. On appeal, Doe argues that the hearing examiner improperly weighed the regulatory factors, and that a public safety interest is not served by Internet publication of his registry information. We affirm.

Background. We summarize the facts as set forth in the hearing examiner's decision. In 2009, the nine year old victim was visiting friends with her mother and brother. The victim was alone in a room using a computer when Doe, then thirty years old, walked up behind her and placed his hand down the front of her shirt and touched her breast. He then removed his hand from her shirt before the victim's brother came into the room. The victim did not disclose the incident at that time. About three years later, in 2012, the victim and Doe both attended a party. At Doe's direction, another partygoer took an individual photograph of the victim using Doe's cell phone. As a result, the victim became very upset and ran into a bathroom crying. When a family friend went to check on her, the victim disclosed the 2009 sexual abuse by Doe.

A jury convicted Doe of one count of indecent assault and battery on a child under fourteen years old, G. L. c. 265, § 13B, and he was sentenced to two years’ probation with a condition that he register with SORB.

In 2014, after a hearing, SORB classified Doe as a level three sex offender. In light of the Supreme Judicial Court's decision in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, 473 Mass. 297 (2015) (Doe No. 380316 ), Doe received another de novo hearing in 2016 and was again classified as a level three sex offender. Doe sought judicial review, and a Superior Court judge remanded the case to SORB. Accordingly, in 2018, Doe received a third de novo hearing, after which the hearing examiner classified Doe as a level two sex offender. Doe again sought judicial review, and a Superior Court judge affirmed the hearing examiner's decision. Doe timely appealed.

Discussion. 1. Application of regulatory factors. In his decision, the hearing examiner gave "full weight" to high-risk factor three (adult offender with child victim) and "applied" risk-elevating factor seven (relationship between offender and victim). He also attributed varying weights to four risk-mitigating factors and two additional factors. On appeal, Doe challenges the hearing examiner's weighing of several of those risk-mitigating and additional factors. It is for the hearing examiner, not for us, to consider and weigh the multiple factors in rendering a classification decision. Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 143-144 (2019). Our review is limited to determining whether the hearing examiner's findings are "unsupported by substantial evidence or [are] arbitrary or capricious, an abuse of discretion, or not in accordance with law." Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). An abuse of discretion occurs where the hearing examiner makes "a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (quotation and citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The hearing examiner found that Doe was "entitled" to application of mitigating factor twenty-nine (offense-free time in the community). Factor twenty-nine provides that the likelihood of sexual recidivism decreases the longer the sex offender has been offense-free in the community. 803 Code Mass. Regs. § 1.33(29)(a) (2016). "In the case of an offender who was not committed, the offense-free time begins on the most recent date of conviction or adjudication of a sex offense ...." Id. Although Doe committed the sexual offense in 2009, he was not convicted until 2013, about five years before the classification hearing. Therefore, we discern no abuse of discretion in the hearing examiner's weighing of factor twenty-nine.

Doe also argues that the hearing examiner should have given greater weight to factor thirty (advanced age). "Factor thirty does not apply uniformly to all sex offenders. Although risk of reoffense gradually declines when an offender is in his forties, [SORB] considers advanced age to have a significant mitigating effect ... for those with child victims, when the offender is [sixty] years of age or older." 803 Code Mass. Regs. § 1.33(30)(a). SORB considers the offender's age at the time of the classification hearing. Id. As noted above, Doe's index sex offense was committed against a child victim and Doe was forty years old at the time of the classification hearing. Therefore, we discern no abuse of discretion in the hearing examiner's decision to apply "minimal weight" to factor thirty.

Doe similarly maintains that the hearing examiner should have given greater weight to factor thirty-three (home situation and support systems), based on letters of support written by his girlfriend and stepmother. Factor thirty-three provides that "the likelihood of reoffense is reduced when an offender is supported by family, friends and acquaintances. The [SORB] shall give greater mitigating consideration to evidence of a support network that is aware of the offender's sex offense history and provides guidance, supervision, and support of rehabilitation." 803 Code Mass. Regs. § 1.33(33)(a). See also Doe, Sex Offender Registry Bd. No. 524553 v. Sex Offender Registry Board, 98 Mass. App. Ct. 525, 530 (2020). Here, the hearing examiner acknowledged the letters written by Doe's girlfriend and stepmother, but noted that neither letter indicated knowledge of his offending, or described how each writer planned to provide support and guidance to Doe. The hearing examiner gave minimal weight to this mitigating factor. Again, we discern no error. The hearing examiner considered the letters, and it was within his discretion to assign them greater or less weight according to their content.

The hearing examiner also considered a letter from Doe's supervisor at work and found "the...