Doe v. Sex Offender Registry Bd.

• Decision Date: 03 May 2010
• Docket Number: SJC-10484.
• Citation: 456 Mass. 612,925 N.E.2d 533
• Parties: John DOE, Sex Offender Registry Board No. 151564v.SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

456 Mass. 612

925 N.E.2d 533

John DOE, Sex Offender Registry Board No. 151564v.SEX OFFENDER REGISTRY BOARD.

SJC-10484.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 4, 2010.

Decided May 3, 2010.

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Jennifer K. Zalnasky (Beatriz E. Van Meek, Special Assistant Attorney General, with her) for the defendant.

Andrew S. Crouch for the plaintiff.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

After the Sex Offender Registry Board (board) classified John Doe as a level three sex offender, a judge in the Superior Court ruled that Doe is not required to register as a sex offender because his conviction in Maine of unlawful sexual contact, see Me.Rev.Stat. Ann. tit. 17-A, § 255(1)(C) (West Supp.2000),¹ is not a “like violation” similar to any Massachusetts statute that requires such registration in the event of a conviction. See G.L. c. 6, §§ 178C- 178P. We reverse the ruling because we conclude that Maine's offense of unlawful sexual conduct is a “like violation” when compared to the Massachusetts crime of indecent assault and battery on a child under fourteen. See G.L. c. 265, § 13B. Nonetheless, because of errors in the board's decision we remand the case to the board for new classification proceedings and for a determination whether Doe is entitled to funds for an expert.

1. Factual background and procedural history. We summarize the facts found by a hearing examiner after an evidentiary hearing, supplemented by undisputed facts from the record. In 2001, Doe pleaded guilty in Maine to one count of unlawful sexual conduct in violation of Me.Rev.Stat. Ann. tit. 17-A, § 255(1)(C). He was sentenced to a term of three years in prison, of which all but six months was suspended, followed by three years of probation. ² In 2006, after he was released from prison, Doe moved to Massachusetts.³

On learning of Doe's residence in the Commonwealth, the board notified him that he was required to register as a sex offender in Massachusetts. In a preliminary determination, see 803 Code Mass. Regs. § 1.06 (2004), the board decided that Doe must register as a sex offender and classified him as a level three offender. See G.L. c. 6, § 178K (2) ( c ). Following Doe's appeal and an evidentiary hearing before a hearing examiner, see G.L. c. 6, § 178L (1) ( a ), the board upheld the preliminary classification.

Doe sought judicial review of the board's decision in the Superior Court, see G.L. c. 6, § 178M, arguing, inter alia, that the board lacked jurisdiction over him because the offense to which he pleaded guilty in Maine is not a “like offense” to any of the Massachusetts offenses that require registration as a sex offender. See G.L. c. 6, §§ 178C-178P. A Superior Court judge agreed with Doe, allowed his motion for judgment on the pleadings, reversed the decision of the board, and declared that Doe need not register as a sex offender in Massachusetts. The board appealed, and we granted Doe's motion for direct appellate review.

2. Standard of review. Pursuant to G.L. c. 6, § 178M, an offender may seek judicial review of the board's final classification and registration requirements in accordance with the Administrative Procedure Act. See G.L. c. 30A, § 14. We reverse the board's decision if it was “( a ) [i]n violation of constitutional provisions”; “( b ) [i]n excess of the statutory authority or jurisdiction” of the board; “( c ) [b]ased upon an error of law”; “( d ) [m]ade upon unlawful procedure”; “( e ) [u]nsupported by substantial evidence”; “( f ) [u]nwarranted by facts found by the court ... where the court is constitutionally required to make independent findings of fact”; or “( g ) [a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.” See G.L. c. 30A, § 14(7). In conducting our review, we “give due weight to the experience, technical competence, and specialized knowledge” of the board. Id.

3. Whether Doe is a sex offender subject to the board's jurisdiction. A sex offender is defined as a person who has been convicted of any violation of Massachusetts law enumerated as a sex offense in the sex offender registry law, as well as any “like violation of the laws of another [jurisdiction].” G.L. c. 6, § 178C. Any sex offender moving into the Commonwealth from another state must register with the board within two days. See G.L. c. 6, § 178E ( g ).

a Definition of “like violation.” The board argues that the motion judge erred in determining that Doe's Maine conviction does not constitute a “like violation” within the meaning of G.L. c. 6, § 178C. The sex offender registration statute does not define the term “like violation,” nor have we previously interpreted the “like violation” provision. In Commonwealth v. Becker, 71 Mass.App.Ct. 81, 82, 879 N.E.2d 691, cert. denied, --- U.S. ----, 129 S.Ct. 320, 172 L.Ed.2d 231 (2008), the Appeals Court addressed whether a conviction of the New York offense of sexual abuse in the third degree is a “like violation” similar to the Massachusetts offense of indecent assault and battery on a person fourteen or older. See G.L. c. 265, § 13H. The court defined a “like violation” as a crime that is “the same or nearly the same” as a Massachusetts offense requiring registration. Id. at 87, 879 N.E.2d 691, quoting Commonwealth v. Smith, 58 Mass.App.Ct. 166, 172, 788 N.E.2d 977 (2003), rev'd on other grounds, 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). In applying this definition, the court compared the definition of the New York offense with the definition of the Massachusetts offense and concluded that the essence of the two crimes was the same. Commonwealth v. Becker, supra.

The Appeals Court analysis was correct. A “like violation” is a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts. The elements of the offense in another jurisdiction need not be precisely the same as the elements of a Massachusetts sex offense in order for it to constitute a “like violation.” In drafting the statute, the Legislature chose the word “like” rather than the word “identical” to describe the required relationship between an offense from another jurisdiction and a Massachusetts sex offense. Where a statute does not define a term, we interpret it “in accordance with its generally accepted plain meaning.” Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002). Therefore, we consider the “like violation” requirement satisfied where it is shown that the proof necessary for the out-of-State conviction would also warrant a conviction of a Massachusetts offense for which registration is required.

b Doe's Maine conviction of unlawful sexual contact. General Laws c. 265, § 13B, prohibits “indecent assault and battery on a child under the age of fourteen.” Any intentional touching that is “harmful or offensive” and “committed without justification or excuse” constitutes battery, see Massachusetts Superior Court Criminal Practice Jury Instructions § 2.21.1 (Mass. Cont. Legal Educ. 1st Supp.2003), and all battery includes assault. See Commonwealth v. Burke, 390 Mass. 480, 482, 457 N.E.2d 622 (1983). An assault and battery is indecent if it is “fundamentally offensive to contemporary standards of decency and moral values.” See Commonwealth v. Trowbridge, 419 Mass. 750, 757-758, 647 N.E.2d 413 (1995). See also Commonwealth v. Miozza, 67 Mass.App.Ct. 567, 570-571, 854 N.E.2d 1258 (2006). The intentional, unjustified touching of the breasts, abdomen, buttocks, thighs, or pubic area of a female constitutes indecent assault and battery. Id. at 571, 854 N.E.2d 1258. Accordingly, the elements of the Massachusetts crime of indecent assault and battery on a child under fourteen are an intentional touching (1) that is harmful or offensive and committed without justification or excuse; (2) that is indecent (i.e., that offends contemporary standards of decency and moral values); and (3) that is committed on a child under the age of fourteen. See G.L. c. 265, § 13B; Commonwealth v. Trowbridge, supra; Commonwealth v. Boyd, 73 Mass.App.Ct. 190, 194, 897 N.E.2d 71 (2008).

Maine's unlawful sexual contact statute prohibits “intentional[ ] ... sexual contact” with “[an]other person, not the actor's spouse, [who] has not in fact attained the age of 14 years” when the actor is “at least 3 years older” than the victim. Me.Rev.Stat. Ann. tit. 17-A, § 255(1)(C). Sexual contact is defined as “any touching of the genitals or anus ... for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact.” Me.Rev.Stat. Ann. tit. 17-A, § 251(1)(D) (West Supp.2000). Thus, the elements of Maine's offense of unlawful sexual contact are an intentional touching (1) for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact; (2) of the genitals or anus; (3) of a person under the age of fourteen; (4) by a person at least three years older than the victim and not the victim's spouse.

The Superior Court judge decided that Doe's Maine conviction was not a “like violation” because the judge believed that the Massachusetts offense includes elements that are not required to prove the Maine offense. The judge concluded, in our view erroneously, that the Massachusetts statute requires that the Commonwealth prove two elements not required by the Maine statute: (1) that both an assault and a battery occurred, whereas in Maine the statute requires only the element of assault; and (2) the additional element that the crime was offensive to contemporary moral values.

We read the Maine statute as requiring proof of both an assault and a battery because it prohibits intentional touching. Me.Rev.Stat. Ann. tit. 17-A, § 255(1). The elements of the Maine offense of unlawful sexual...