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13-P-1703 Appeals Court
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 291554 vs. SEX
OFFENDER REGISTRY BOARD.
No. 13-P-1703.
Suffolk. November 13, 2014. - March 27, 2015.
Present: Green, Wolohojian, & Blake, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Evidence, Sex offender, Expert opinion.
Witness, Expert.
Civil action commenced in the Superior Court Department on
April 13, 2011.
The case was heard by Frances A. McIntyre, J., on a motion
for judgment on the pleadings.
Xiomara M. Hernández for the plaintiff.
Thomas M. Doyle for the defendant.
BLAKE, J. The plaintiff, John Doe, challenges his final
classification by the Sex Offender Registry Board (board) as a
level three sex offender. He claims that the board's decision
was not supported by substantial evidence, primarily because the
governing offense involved no physical contact or sexual
2
component and, apart from that offense, Doe had no prior
criminal record. We affirm.
Background. We summarize the facts found by the hearing
examiner,1 supplemented by additional undisputed facts from the
record. In October of 2009, Doe responded to a post on a social
networking Web site from the twelve year old female victim
seeking assistance running away from home. He initiated a
series of online communications with her over a period of thirty
or so days. In his electronic mail messages (e-mails) to the
victim, Doe misrepresented his age as being twenty-five, rather
than his actual age of thirty-two. Eventually, Doe arranged to
travel from his home State of Virginia to Massachusetts, on a
date certain, to pick up the victim, intending to return to
Virginia with her by train, subway, and bus. To that end, he
purchased one bus ticket in his name and one in that of the
victim. He also instructed the victim to bring some money and
her Social Security card.
On the morning of the planned meeting, the victim's mother
noticed that the victim was acting suspiciously. The mother's
boyfriend then searched the victim's computer and discovered her
communications with Doe. The police were notified, and after
interviewing the victim, they arrested Doe at the train station,
shortly before the prearranged meeting. Upon questioning, Doe
1
An evidentiary hearing was held on February 7, 2011.
3
told the police that he knew the victim was twelve years old;
that he planned "to kiss her, lick her, and suck on" her when
they returned to Virginia; that he would take photographs of her
and post them on a Web site; that he intended to get her to love
him; and that he would marry her and have babies with her.
Doe was charged and found guilty of enticement of a child
under the age of sixteen (enticement) and attempted kidnapping
of a child. He was sentenced to two and one-half years in the
house of correction, and five years of probation on and after
his committed sentence. Conditions of his probation include sex
offender treatment, no access to the Internet or to social
networking Web sites, and no unsupervised contact or employment
with children under the age of sixteen. Doe has no other
criminal record; however, he told the police that "this is the
first time" he has "actually followed through with something."
In October of 2010, while still serving his sentence, Doe
was notified of the board's preliminary decision to classify him
as a level three sex offender. See G. L. c. 6, § 178K. Doe
challenged the board's decision, and a de novo hearing was held
before a hearing examiner. See G. L. c. 6, § 178L(1)(a).
Represented by counsel, Doe requested that he be classified as
no higher than a level two sex offender. Unpersuaded, the
hearing examiner found that the board had met its burden of
proof and ordered Doe to register as a level three sex offender.
4
Doe filed in Superior Court a complaint for judicial review and
then a motion for judgment on the pleadings. A judge denied the
motion and affirmed the board's classification of Doe as a level
three sex offender.2 This appeal followed.
The hearing examiner's decision. As required by G. L.
c. 6, § 178K(1), the board "has promulgated guidelines 'for
determining the level of risk of reoffense and the degree of
dangerousness posed to the public'" in connection with a sex
offender's classification hearing. Doe, Sex Offender Registry
Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 772
(2008). See 803 Code Mass. Regs. § 1.40 (2004). "The
guidelines have 'the force of law and must be accorded all the
deference due to a statute.'" Smith v. Sex Offender Registry
Bd., 65 Mass. App. Ct. 803, 811 (2006), quoting from
Massachusetts Fedn. of Teachers v. Board of Educ., 436 Mass.
763, 771 (2002). A hearing examiner has discretion to consider
which regulatory factors to apply and how to weigh those factors
based on the evidence at the hearing. Id. at 811-813.
Here, the hearing examiner found that several statutory and
regulatory factors were applicable to Doe's case, resulting in
her finding that he presents a high risk of reoffense and a high
degree of dangerousness. First, where the victim is a child,
2
We note that the judgment only stated that Doe's motion
for judgment on the pleadings was denied. Ordinarily, such
judgments also should affirm the board's classification.
5
offenders such as Doe "pose a heightened risk to public safety
since children normally lack the physical and mental strength to
resist an offender." 803 Code Mass. Regs. § 1.40(3) (2002).
Next, Doe and the victim were strangers, which presents a
heightened risk of reoffense and degree of dangerousness. 803
Code Mass. Regs. § 1.40(7) (2002). Targeting a stranger also
increases an offender's pool of potential victims. Ibid. Doe
was incarcerated at the time of the classification hearing,
which meant there was no evidence regarding his reintegration
into the community without committing a subsequent offense.3 803
Code Mass. Regs. § 1.40(9)(a) (2002). Lastly, the crimes of
which Doe was convicted have been designated to be sex offenses
involving a child. See G. L. c. 6, § 178C; 803 Code Mass. Regs.
§ 1.40(9)(c)(12) (2002).4
The hearing examiner also applied two factors in
mitigation: that Doe took responsibility for his actions, 803
Code Mass. Regs. § 1.40(9)(c)(13) (2002), and that he will be
under probation supervision when released from incarceration,
3
The board is required to begin classification proceedings
at least sixty days prior to a sex offender's release from
incarceration and must classify the sex offender at least ten
days before his earliest possible release date. G. L. c. 6,
§§ 178L(1)(a), 178E(a). We accordingly reject Doe's claim that
he posed no current risk because of his incarceration. See Doe,
Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79
Mass. App. Ct. 683, 689 (2011).
4
Contrary to Doe's contention, the hearing examiner did not
consider substance abuse as a factor in Doe's classification.
6
803 Code Mass. Regs. § 1.40(10) (2002). Sex offender treatment
was not available to Doe at the house of correction. He did,
however, enroll in a cognitive behavior development class,
attend Alcoholics Anonymous meetings, and submit to the hearing
examiner a comprehensive relapse prevention plan. While not a
substitute for sex-offender-specific treatment, the hearing
examiner found Doe's actions to be an encouraging start.
In carefully weighing the factors involved in this case,
the hearing examiner found the facts of the offenses to be
"extremely aggravating." In particular, she noted that: "While
I am cognizant that [Doe] is convicted of acts related to only
this one incident, and that his actions towards abducting and
sexually assaulting the girl were cut short by police
intervention, I find his stated intentions and his actions taken
towards his goal exceedingly grievous and give them great
weight."5
Standard of review. In determining the validity of the
board's decision, a reviewing court "must determine whether the
decision is supported by substantial evidence." Doe, Sex
Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd.,
447 Mass. 779, 787 (2006). "In reviewing SORB's decisions, we
'give due weight to the experience, technical competence, and
5
The hearing examiner nevertheless noted that Doe may be a
candidate for further administrative review in the future to
determine the appropriateness of reclassification.
7
specialized knowledge of the agency.'" Doe, Sex Offender
Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.
594, 602 (2013) (Doe No. 205614), quoting from G. L. c. 30A,
§ 14(7). "A reviewing court will set aside or modify SORB's
decision if it was . . . '[a]rbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with law.'" Id. at
601-602, quoting from G. L. c. 30A, § 14(7). "It is the
province of the board, not this court, to weigh the credibility
of the witnesses and to resolve any factual disputes." Doe, Sex
Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81
Mass. App. Ct. 610, 618 (2012).
Discussion. On appeal, Doe claims that because there was
no physical contact between him and the victim, and no sexual
component to the crimes, he should not have been required to
register as a level three sex offender. In the alternative, he
claims that the hearing examiner failed to properly weigh
certain mitigating factors, including his lack of a prior
criminal record, and erroneously found that he and the victim
were strangers. We address each point in turn.
A. Nature of the governing offenses. The list of
predicate offenses under G. L. c. 6, § 178C, include several,
like the ones here, that are noncontact offenses. See generally
Doe No. 205614, supra at 610 n.13. Doe does not challenge the
general inclusion of such crimes within the ambit of the sex
8
offender registry law. Rather, his argument seems to center on
his claim that the crimes in question were "not sexual in
nature," as evidenced by the lack of physical contact between
Doe and the victim. The presence of physical contact between a
sex offender and a victim is not a prerequisite to determining
if that sex offender acted out of sexual motivation. Moreover,
the crime of enticement does not require physical contact. See
G. L. c. 265, § 26C(b). Here, Doe's actions and words,
individually and collectively, demonstrate that his intentions
were sexual in nature.
B. Application of the guidelines. Doe claims that the
hearing examiner incorrectly found that he and the victim were
strangers, and that the corresponding risk factor was thus
applied in error. He also claims that the hearing examiner
improperly weighed certain mitigating factors. For those
reasons, he maintains that if he is required to register, he
should be classified as a level one offender. These claims are
without merit.
Doe argues that by the time of his arrest, he and the
victim were no longer strangers as they had been communicating
online for about one month. This claim fails to account for the
undisputed fact that when Doe initiated contact with the victim,
she was unknown to him. This initial contact was the first step
in his commission of the crime of enticement. He then
9
cultivated a relationship with the victim in furtherance of his
criminal plan to take her to Virginia, which actions constituted
the basis for his arrest and subsequent conviction of
enticement.
The hearing examiner also explicitly weighed Doe's lack of
a prior criminal record, and appropriately credited him for his
expected supervision by the probation department upon release
and for having a relapse prevention plan in place. The weight
that she afforded each of those factors was hers to determine,
and fell within the bounds of her discretion. See Smith v. Sex
Offender Registry Bd., 65 Mass. App. Ct. at 811.
We acknowledge, as noted by the dissent, post at ,
that no expert testimony was presented regarding the likelihood
that Doe would reoffend. However, the statute contains no
requirement, nor is any requirement implied in any previously
decided case, that expert testimony be presented on the subject
of the likelihood to reoffend. By establishing factors to be
considered by the hearing examiner, the Legislature has
furnished guidance on its view of the relevant considerations
and requirements, committing to the board considerable
discretion in the specific application of those factors to
10
individual sex offenders. Greater quantification of specific
risk, even if possible to imagine, is not required.6
Conclusion. Based on the evidence presented, the risk
factors involved, and the deference we must afford to the board,
the hearing examiner's decision was supported by substantial
evidence, was not arbitrary or capricious, and was in accordance
with the law.
Judgment affirmed.7
6
We disagree with the dissent's suggestion, post
at , that arbitrary applications of the factors will be
immune from review.
7
See note 2, supra.
WOLOHOJIAN, J., dissenting. When creating the sex offender
registration scheme, the Legislature determined that sex
offenders should be classified by the Sex Offender Registry
Board (board) into three levels depending on whether they
present a low, moderate, or high risk of reoffense. Although
these terms are undefined, they must remain connected to our
ordinary understanding of the quantitative concepts underlying
them. Thus, a low risk of reoffense is "not merely a
hypothetical or speculative potential risk." Doe, Sex Offender
Registry Bd. No. 24341 v. Sex Offender Registry Bd., 74 Mass.
App. Ct. 383, 388 (2009) (Doe No. 24341). "Rather, it is a risk
that is 'cognizable' -- i.e., 'perceptible'; '[c]apable of being
known, perceived, or apprehended by the senses or intellect.'"
L.L. v. Commonwealth, 470 Mass. 169, 179 (2014) (footnote
omitted). A moderate level of risk must, by virtue of logic,
common sense, and fairness, be something quantifiably more than
a low level of risk. Likewise, a high level of risk must, for
the same reasons, be appreciably greater than a moderate one.
The inquiry is prognostic; the hearing examiner is required to
assess not only what (i.e., another sex offense) might happen in
the future, but also its quantifiable likelihood (i.e., low,
moderate, or high) of occurring. Because human behavior is
unpredictable, and predictions of future behavior are inherently
2
difficult and complex, both prongs of the inquiry must rest on
something other than guesswork, conjecture, fear, or surmise.
This is not to say that the Legislature intended the three
levels of classification to be a purely statistical analysis.
The hearing examiner is entitled to, and should, examine
qualitative factors that may also bear on the person's future
risk of reoffense. There must, however, be an objective
quantitative basis for the particular classification.
Otherwise, if we allow the terms "low," "moderate," and "high"
to become separated from their quantitative core, a person could
be classified as a level three (high risk) sex offender
regardless of whether he presents a five percent risk of
committing another sex offense or a seventy-five percent risk.
This is unacceptable.
I respectfully dissent because the board did not prove, by
a preponderance of the evidence, the quantum of risk Doe
presents of reoffense. We do not know even in a general way,
let alone with any precision -- nor did the hearing examiner
find -- where on the spectrum of risk (from zero to one hundred
percent) the plaintiff, John Doe, falls. Nor did the hearing
examiner explain why she found Doe's risk of reoffense to be
high rather than moderate. Indeed, the board concedes that it
cannot explain why Doe presents a high risk as opposed to a
moderate risk. It argues, instead, that the discretion afforded
3
to the hearing examiner permitted her to classify Doe as either
a level two (moderate risk) or a level three, and that neither
classification would have been error based on the facts. If
accepted, this argument would essentially eliminate the very
structure of the three-tier classification system, which is
premised on distinct and different levels of risk. It would
also make even arbitrary decisions of hearing examiners
unreviewable.
It is not enough to establish that a person presents some
risk of reoffense. To avoid arbitrary and capricious
application of the law, one "must be able to [articulate] and
[describe] based on affirmative evidence," why and how a person
presents a particular risk of reoffense (whether low, moderate,
or high) as opposed to any other." Ibid. See Doe No. 24341,
supra at 387-388. The terms low, moderate, and high cannot and
should not be interpreted so amorphously as to permit arbitrary
classification. The board was required to prove by a
preponderance of the evidence that Doe presents a cognizable,
perceptible risk of reoffense that is greater than low, and also
greater than moderate. This it did not do. There was, for
example, no expert evidence presented on the risk of reoffense
by a person who, like Doe, has no criminal history or history of
sex offenses. We are left to guess what predictive value the
characteristics of Doe's acts (while serious) might have on the
4
quantum of risk Doe presents in the future. The record contains
no empirical or other scientific information or data concerning
the recidivism rates for a person who has committed acts of the
nature at issue here. And it already has been noted that "there
is reason for some concern as to whether the guidelines [upon
which the board relies] continue to reflect accurately the
current state of scientific knowledge." Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 116 (2014).
For these reasons, I would vacate the denial of Doe's
motion for judgment on the pleadings and remand the matter to
the hearing examiner for further proceedings to determine Doe's
level of risk of reoffense based on affirmative evidence.