Voe v. Sex Offender Registry Bd.

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JOHN VOE, SEX OFFENDER REGISTRY BOARD NO. 6615 v. SEX OFFENDER REGISTRY BOARD.

No. 21-P-1083

Appeals Court of Massachusetts

August 2, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0

The plaintiff, John Voe (Voe),^[1] appeals from a Superior Court judgment affirming the Sex Offender Registry Board's (board or SORB) final decision classifying him as a level two sex offender.^[2] On appeal, Voe asserts that the examiner erroneously determined that Voe raped one of his victims, and that the examiner improperly weighted several risk mitigating factors. Thus, Voe argues, the board's decision was unsupported by substantial evidence, arbitrary or capricious, and an abuse of discretion. We affirm.

Background.

We summarize the facts as found by the hearing examiner "supplemented by undisputed facts from the record," and reserve certain facts for later discussion. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No. 10800) .

a. Index sex offenses.

Offense #1.

On July 16, 1989, Voe approached a thirty-two year old woman from behind while she was walking home from church with her seven year old daughter.^[3] Voe grabbed the victim's breasts and groped her vagina while stating, in Spanish, that he was "going with" her. On October 5, 1989, Voe pleaded guilty to indecent assault and battery; he was sentenced to a term of four to five years in prison.

Offense #2.

On July 20, 1989, Voe approached two women while they were walking on a street in Holyoke. After one of the women rebuffed Voe's request to "make love," Voe pushed the woman against a wall, grabbed her by the hair, and tried to force his penis into her mouth. The victim kicked Voe in the groin and attempted to run away. Voe caught the victim, threw her to the ground, and "pulled her skirt and underpants off and got on top of her and put his penis into her vagina." Police officers then arrived on the scene and arrested him. On October 4, 1989, Voe pleaded guilty to, among other things, assault with intent to rape, and was sentenced to five to seven years in prison.

Offense #3.

On January 16, 1997, Voe and two companions forced a fourteen year old girl into their vehicle and drove her to an apartment where they threatened to hurt her. Voe's accomplices then held the victim down on a bed while Voe penetrated the victim's vagina with his penis. On September 22, 1998, Voe pleaded guilty to charges of kidnapping and rape and abuse of a child. He was sentenced to two and one-half years committed with seven years of probation.

b. Relevant procedural history.

Doe originally was notified of his obligation to register as a level three offender in 2003; he did not respond to the preliminary recommendation letter and, in February 2004, he was so classified. In 2019, in response to Voe's petition for reclassification, the board preliminarily recommended that Voe be reclassified as a level two offender. Voe challenged that recommendation and, on July 20, 2020, a hearing examiner held a de novo evidentiary hearing. On September 16, 2020, the hearing examiner issued a written decision finally classifying Voe as a level two sex offender.^[4] Voe sought review in the Superior Court pursuant to G. L. c. 6, § 178M. See G. L. c. 30A, § 14 (7). A judge denied Voe's motion for judgment on the pleadings and allowed SORB's cross-motion for the same. Voe now appeals therefrom.

Voe contends that SORB's decision was arbitrary, capricious, and an abuse of discretion because the hearing examiner: (1) erroneously found that he raped one of the victims of the second 1989 incident; (2) improperly evaluated risk mitigating factors 32 and 33 by assigning only moderate weight to those factors; and (3) failed to indicate how much weight he gave to risk mitigating factor 34.

Discussion.

1. Standard of review.

A reviewing court may set aside a decision of the board if it determines "that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law [quotation omitted]." Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 101 Mass.App.Ct. 797, 801 (2022). While we review the board's decision de novo, Brown-Forman Corp. v. Alcoholic Beverages Control Comm'n, 65 Mass.App.Ct. 498, 504 (2006), 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 No. 10216), quoting G. L. c. 30A, § 14 (7). Voe therefore "bears a heavy burden of establishing that the [board]'s decision was incorrect [quotation omitted]." Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 757 (2021).

When reviewing a decision by the board, we "must determine whether the decision is supported by substantial evidence [quotation omitted]," Doe No. 10800, 459 Mass. at 632, which is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." Id., quoting G. L. c. 30A, § 1 (6).

Our review "does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion . . . but only whether a contrary conclusion is not merely a possible but a necessary inference [quotation omitted]." Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 110 (2014).

2. Hearing examiner's alleged errors. a. Erroneous finding of rape of victim during second 1989 incident.

Voe argues that the examiner erred in finding that he raped the victim of the July 20, 1989 incident (index offense #2) because the evidence was insufficient to establish that Voe penetrated the victim's vagina. Voe points to the victim's statement, as reported by the police, that Voe was "trying to rape her" and argues this is conclusive proof that the rape was not consummated since penetration was not established. Additionally, Voe argues that he pleaded guilty only to attempted rape, not the charge of rape. Voe's argument omits the fact that the victim, in addition to reporting that Voe attempted to rape her, told the police that Voe "put[] his penis into [her] vagina." We thus reject Voe's claim of error and find the hearing examiner acted within his discretionary authority by relying upon the victim's statement to the police in concluding that Voe had raped the victim. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass.App.Ct. 85, 89-90 (2019) (finding police reports of sexual assault relied upon by hearing examiner bore sufficient indicia of reliability).

Even if Voe were correct that the hearing examiner erred by finding penetration for this offense, the fact that his attempt to rape the victim may not have been successful has little if any bearing on the degree of risk he presents when considering his other predicate index offenses^[5] as well as the additional relied-upon risk factors underlying Voe's level two classification. See New Palm Gardens, Inc. v. Alcoholic Beverages Control Comm'n, 11 Mass.App.Ct. 785, 794-795 (1981) (determining that a remand would be waste of time because no real doubt the commission would reach same conclusion).

b. Examiner's application of regulatory factors.

Voe asserts that the examiner erroneously applied mitigating factors 32, 33, and 34 in determining his classification level. See 803 Code Mass. Regs. § 1.33 (2016).

Factor 32.

Voe claims it was error for the examiner to give decreased risk mitigating weight to this factor. We disagree. The hearing examiner acted well within his discretion in assigning moderate weight after observing that: (1) other than the board's classification report no "other documents were submitted that speak to [Voe's] level of participation and progress in" sex offender treatment or otherwise that demonstrated that Voe completed treatment; and (2) both Voe's partner and his sister indicated that they believed that he did not commit the index offenses to which he pleaded guilty.

Though participation in or successful completion of sex offense-specific treatment properly can be viewed as reducing an offender's risk of recidivism and/or dangerousness the hearing examiner's finding here of moderate weight for factor 32 was not an abuse of discretion because it was based on the lack of evidence Voe presented on the issue of whether he completed offender treatment. To fulfill his responsibility under this factor,^[6] Voe proffered (1) a letter from a provider dated December 27, 2003, indicating that Voe entered treatment in February 2002 and was "a consistent participant in the group"; (2) a "Form-10" sex offender treatment status report dated November 27, 2002; and (3) a single page from Voe's prior board classification report apparently dated January 6, 2003. The classification report indicated Voe's enrollment in sex offender treatment while incarcerated, but does not support an...