Doe v. Sex Offender Registry Bd., 17-P-1347

• Decision Date: 26 March 2019
• Docket Number: No. 17-P-1347,17-P-1347
• Citation: 95 Mass.App.Ct. 85,120 N.E.3d 1263
• Parties: John DOE, Sex Offender Registry Board No. 523391 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 85

120 N.E.3d 1263

John DOE, Sex Offender Registry Board No. 523391

v.SEX OFFENDER REGISTRY BOARD.

No. 17-P-1347

Appeals Court of Massachusetts, Essex..

Argued October 5, 2018.

Decided March 26, 2019.

Brandon L. Campbell for the plaintiff.

John P. Bossé for the defendant.

Present: Massing, Ditkoff, & Englander, JJ.

DITKOFF, J.

The plaintiff, John Doe,¹ appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. We conclude that the SORB hearing examiner (examiner) reasonably considered sufficiently reliable hearsay evidence in the form of police reports relating to Doe's uncharged sexual assault of a four year old boy. We conclude that, although the classification decision must be supported by clear and convincing evidence, subsidiary facts need be proved only by a preponderance of the evidence. Applying these standards to conclude that the examiner properly found by a preponderance of the evidence that Doe had sexually assaulted the boy, and that this and other substantial evidence supported the examiner's decision, we affirm.

1. Background. In November, 2008, police in New Paltz, New York, observed Doe openly watching pornography on a public library computer.² The officers observed that he was watching a video recording of a child no more than three years old performing oral sex on an adult male. The officers found other video recordings that Doe had downloaded, depicting girls approximately nine years old engaging in sexual acts. In February 2009, Doe pleaded guilty to one count of possessing a recording of a sexual performance by a child, see N.Y. Penal Law § 263.16.

On March 5, 2009, while awaiting sentencing,³ Doe and a work friend decided to get drunk in the friend's apartment. The friend resided with his girlfriend and her four year old son, but the girlfriend was not present that evening. At some point during the evening, Doe spontaneously confessed to his friend that he had touched the boy. The friend responded that this could not have happened because the two men were together all day. Doe repeated his confession and explained that it had occurred "when he was outside with [the] boy earlier in the day."

The friend attempted to ask the boy, whereupon Doe forced his way into the room, and a physical altercation ensued. When the police arrived, Doe stated, "I shouldn't have touched the three year old's penis, the female deputy even told me that," apparently mistaking a male officer for a female in his intoxication. He then punched and kicked at the arresting officer and, finally, feigned unconsciousness when the police tried to interview him.

Later that day, at the police station, the boy told an officer that Doe "touched Mr. Winkie." The boy explained that "Mr. Winkie" was located "under [his] pants," and the boy's mother confirmed that this was the boy's term for his penis. Six days after the incident, during a children's protective services interview, the boy disclosed that Doe touched his genital area and that Doe also exposed his penis to the boy. Doe was charged with sexual abuse of a minor in the first degree, see N.Y. Penal Law § 130.65, but the charge was ultimately nol prossed.⁴

In late 2014 or early 2015, Doe moved to Massachusetts to live with his mother and, apparently, registered with SORB. In May 2015, a SORB member recommended that Doe be classified as a level three sex offender. Doe invoked his right to challenge the initial classification by claiming a de novo evidentiary hearing pursuant to G. L. c. 6, § 178L (1) (a ). In June 2016, the examiner conducted a de novo hearing on the basis of documentary evidence submitted by both parties.⁵

The examiner found that both the child pornography incident⁶ and the sexual assault incident actually occurred. Regarding the sexual assault, the examiner found that the fact that Doe "report[ed] to both the [friend] and to the police that he had touched the [v]ictim, the [v]ictim also stated in the presence of a police officer that [Doe] had touched him, reported the same later on the same day, and then again when interviewed by child protective services several days later ... provides an indicia of reliability such that it is reasonable to conclude that the incident of sexual misconduct occurred." Armed with these factual findings, the examiner found multiple risk factors described in G. L. c. 6, § 178K (1), and 803 Code Mass. Regs. § 1.00 (2016), including repetitive and compulsive behavior, adult offender with a child victim, relationship between offender and victim, sexual misconduct in a public place, and extravulnerable victim. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 105, 18 N.E.3d 1081 (2014) ("SORB is required to consider a list of statutory factors in making its classification determinations"). The examiner further concluded that mitigating factors, such as Doe's supportive home situation and stability in the community, only somewhat offset the aggravating factors. The examiner concluded that Doe posed a moderate risk to sexually reoffend and a degree of dangerousness such that a public safety interest is served by public access to Doe's registry information, and thus classified him as a level two sex offender.

Doe promptly filed a complaint for judicial review in the Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. A Superior Court judge reviewed the administrative record and affirmed SORB's decision. This appeal followed.

2. Standard of review. "To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence." Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76, 35 N.E.3d 788 (2015) ( Doe No. 356011 ), quoting Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787, 857 N.E.2d 492 (2006) ( Doe No. 10216 ). An agency decision should be set aside only if a court determines 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. 356011, supra, quoting Doe No. 10216, supra. An appeal from a SORB classification decision is confined to the administrative record. See Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 311, 873 N.E.2d 1194 (2007) ( Doe No. 10304 ). "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 No. 356011, supra, quoting Doe No. 10216, supra. It is within the province of the hearing officer to assess the reliability of such evidence and to draw all reasonable inferences. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638, 947 N.E.2d 9 (2011) ( Doe No. 10800 ). We review a judge's consideration of an agency decision de novo. See Brown-Forman Corp. v. Alcoholic Beverages Control Comm'n, 65 Mass. App. Ct. 498, 499, 841 N.E.2d 1263 (2006).

3. Examiner's reliance on hearsay. "A hearing examiner is not bound by the rules of evidence applicable to court proceedings." Doe No. 10800, 459 Mass. at 638, 947 N.E.2d 9. See G. L. c. 30A, § 11 (2) ; 803 Code Mass. Regs. § 1.19(1) (2016). Instead, an examiner "may admit and give probative effect to that evidence ‘which reasonable persons are accustomed to rely in the conduct of serious affairs.’ " Doe No. 356011, 88 Mass. App. Ct. at 76, 35 N.E.3d 788, quoting G. L. c. 30A, § 11 (2). In the context of a sex offender classification hearing, hearsay evidence may be admissible if it bears sufficient indicia of reliability.

Doe No. 356011, supra at 77, 35 N.E.3d 788. See Doe No. 10800, supra at 632, 947 N.E.2d 9, quoting G. L. c. 30A, § 1 (6) ("Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion’ "); Covell v. Department of Social Servs., 439 Mass. 766, 785-786, 791 N.E.2d 877 (2003) (detailed and consistent reports of abuse considered substantial evidence despite being presented only through hearsay sources).

When reviewing an examiner's determination that hearsay evidence is substantially reliable, we ask whether "it was reasonable for the examiner to admit and credit" the facts described in the hearsay evidence. Doe No. 356011, 88 Mass. App. Ct. at 77, 35 N.E.3d 788. Accord Boylston-Washington, Inc. v. Alcoholic Beverages Control Comm'n, 8 Mass. App. Ct. 396, 400, 394 N.E.2d 996 (1979). Factors that the examiner should consider include "the general plausibility and consistency of the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like." Doe No. 356011, supra at 78, 35 N.E.3d 788, quoting Doe No. 10304, 70 Mass. App. Ct. at 313, 873 N.E.2d 1194. Common indicia of reliability include a detailed account, see Doe No. 10800, 459 Mass. at 638, 947 N.E.2d 9 ; Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 778, 897 N.E.2d 1001 (2008) ( Doe No. 89230 ); Doe No. 356011, supra at 78, 35 N.E.3d 788 ; Doe No. 10304, supra at 312-313, 873 N.E.2d 1194 ; the consistency of the hearsay incident with other, known behavior, see Doe No. 10800, supra at 638-639, 947 N.E.2d 9 ; admissions by the offender, see Doe No. 89230, supra ; Doe No. 356011, supra at 79, 35 N.E.3d 788 ; and independent corroboration, see Commonwealth v. Bukin, 467 Mass. 516, 520-521, 6 N.E.3d 515 (2014) ; Commonwealth v. Patton, 458 Mass. 119, 134, 934 N.E.2d 236 (2010). Indicia of unreliability include failure to identify the source of information, a lack of detail, and a lack of information about the circumstances in which the statements were made. See Doe, Sex Offender Registry Bd. No. 136652 v. Sex...